St. Mary's Law Journal


Kenedy Memorial Foundation v. Dewhurst determined the boundary of the Laguna Madre by narrowing the scope of the exception found in Luttes v. State. Luttes established the “mean high tide” test (MHHT), which governs lands controlled by civil law. The MHHT determines a boundary by the mean of the high tide without regard to a summer or winter tide. The exception, however, does not require the application of the MHHT in areas in which tidal gauges could not be used accurately. The Laguna Madre is a shallow strip of water, ranging between three and five miles in width, running between the Texas mainland and Padre Island, and is bisected by the intracoastal waterway. The Texas Supreme Court was faced with determining the tidal boundary in an area where the tide gauges cannot be used to accurately measure the tides. The real issue, however, was the oil and gas leasing right which accompanied these thousands of acres of land. Moreover, intermixed is the additional political dynamic concerning financing of Texas’s public schools because the rights claimed by the State benefit the permanent school fund. The Court in Kenedy Memorial Foundation held that the use of a vegetative line falls within the exception in Luttes. By ruling in favor of the Kenedy Memorial Foundation, the Texas Supreme Court determined that: (1) ensuring stability in Texas land titles controls this boundary dispute; (2) courts should not have the power to read unspecified intent into the plain meaning of documents; and (3) the boundary sought by the State does not fall within the undefined exception contained in Luttes. The Court has yet to fully define the scope of the exception. Consequently, there is a constant possibility of future assaults on landowners along the coast of the State.


St. Mary's University School of Law