103 S.W.2d 728 | Tex. | 1937
Defendant in error, the Town of Refugio, sued plaintiffs in error for the title and possession of 43.9 acres of land within the bounds of the four leagues granted by Coahuila and Texas *351
to the town and upon which the townsite is situated. The area involved in the suit, except a tract of 5.28 acres, is a part of the bed of Mission River which runs nearly through the center of the four league grant, crossing its west and south lines. The boundaries of the river bed area were disputed, but it became unnecessary for the trial court to fix the boundaries, its judgment (except as to a tract adjudged to the plaintiff on the defendants' disclaimer) being that the plaintiff take nothing by its suit. The Court of Civil Appeals affirmed the trial court's judgment as to the 5.28 acre tract, reversed it as to the remainder of the land, and rendered judgment in favor of the Town of Refugio for the title and possession of all of the land for which it sued except the 5.28 acre tract.
The Court of Civil Appeals assumed for the purpose of the appeal that the Town of Refugio acquired the fee simple title to the river bed and considered and decided as the controlling issue in the case the question whether deeds executed by the town to certain farm lots on the river had the effect of conveying the bed of the stream. In our opinion it is necessary to determine whether the sovereign has ever parted with its title to the river bed area in controversy, for, if it has not, the title to that area should not be adjudged either to plaintiffs in error or to defendant in error.
The evidence offered on the trial to show the origin and nature of the title of the Town of Refugio to the four leagues of land consisted of a copy of the opinion of the Supreme Court in the case of the Town of Refugio v. Byrne,
The first section of the Act of the Republic approved February 1, 1842, declared the citizens of the Town of Refugio to be a body politic and corporate and provided that the town "may hold and dispose of real and personal estate in said town." The second section extended the provisions of the charter of the town of Victoria to the Town of Refugio. By the third section of the Act the Commissioner of the Land Office was authorized and required to issue to the mayor and aldermen, and their successors in office, of the Town of Refugio, a patent "for the four leagues of land known as the tract of the Mission of Refugio, and on which said town now stands." Patent was never issued.
Plaintiffs in error in proof of their titles introduced on the trial deeds conveying farm lots adjoining, and on both sides of, the river. These deeds, executed in the name of the town by the mayor and secretary, were made in the years 1848, 1850, 1851 and 1852. They described the land conveyed by farm lot numbers and made reference to a survey or plat made by George Lyons. Proof was made that no map or plat by George Lyons can now be found among the records of the Town of Refugio. A map of the town tract made by E. S. Winsor, dated August 29, 1878, and formally approved and adopted by the town council, was admitted in evidence and accompanies the record. It shows the Mission River crossing the four league tract from the northwest to the southeast, the town proper subdivided into lots and blocks, a commons north of the town proper and the remainder of the grant divided into farm lots or tracts of various sizes. The farm lots and other lots nearest the river do not cross the river but are so platted as to have it for boundary.
1 About ten miles below the town the river empties into a bay, which is an arm of the Gulf. The trial court found that the river, except in times of drought, has a surface flow which, however, is normally of small volume, being of a depth varying from ankle deep to two feet, and that the average width of the bed of the stream from its mouth up to and including the area in controversy is thirty feet or more measured from the foot of the banks at the top of the water in its ordinary stage. *353
These findings are supported by the evidence. The county surveyor and another witness testified without contradiction that the width of the stream between the cut banks is more than thirty feet. According to undisputed evidence in the record the river has well defined bed and banks, both cut banks near the water and high banks, the average width of the river bed area between the high banks being from 150 to 275 feet. It is further shown by undisputed evidence that the river is normally a flowing stream, but that sometimes following a prolonged drought of from six to nine weeks it ceases to flow and stands in holes. Mission River, while not navigable in fact, is undoubtedly a perennial river and a navigable stream as defined by Article 5302 of the Revised Civil Statutes of 1925, the Act of 1837. State of Texas v. Bradford,
2 The title of the Town of Refugio to the four leagues of land had its origin in a compliance with the terms and provisions of the Colonization Law of Coahuila and Texas, the Act of March 24, 1825. It was held in Town of Refugio v. Byrne,
While the title acquired by the Town of Refugio under the colonization law may have been merely an incipient or equitable title, as is suggested in Town of Refugio v. Byrne, or may have been subject to the control and disposition of the sovereign (Dittmar v. Dignowity,
3 Did the title to that portion of the bed of the Mission River which lies within the outer boundaries of the four leagues of land surveyed for the town in the year 1834 pass to the Town of Refugio by or under the grant then made? The question must be answered in the negative if Article 5302 of the Revised Civil Statutes of 1925 is applicable, for that statute prohibits the making of surveys across streams having an average width of thirty feet or more, and has been construed as reserving the title to the beds of such streams to the sovereign. Austin v. Hall,
4 Article 5302 is a continuation of Sections 21 and 42 of an Act of the Republic of Texas passed December 14, 1837 (1 Gammel's Laws, pp. 1412, 1418), and the rule which it prescribes has no application to a grant made in 1834, unless there was then in effect a similar law or unless the statute is declaratory of a rule or policy of the civil law of Mexico. It was held in State v. Grubstake Investment Association,
Chief Justice CURETON, in Manry v. Robison,
In Phillips v. Ayres,
It became necessary in Swisher v. Grumbles,
"It is to be borne in mind that where the upper line of the league approaches the creek, and thence down to the bank of the river, the creek is of such width that the line could not crossit; being deemed, by the law, a navigable stream. Had it been a narrow stream, the upper line of the survey would have been continued across it in a right line to the river." (Our italics.)
Thus the Court expressed its opinion that the creek was, under some statute or some rule of civil law in effect in 1835, deemed because of its width a navigable stream which the line of a survey could not lawfully cross.
Notwithstanding the foregoing statements quoted from opinions of the Supreme Court, we have not been able to find any law of Coahuila and Texas, or other law in effect prior to 1837, declaring streams of a width of thirty feet, or other width, navigable or expressly prohibiting the making of surveys across such streams. The Colonization Law of March 24, 1825, in which the title to the four leagues originated, contains no such provisions and nothing concerning surveys on rivers or other streams. "The Instructions to Commissioners of September 4, 1827" for the distribution of lands to new colonists under the *356 1825 law, referred to in Town of Refugio v. Byrne (supra), gives directions for laying off towns, dividing them into lots and measuring surveys with the greatest accuracy, but there are no directions about making surveys on or near streams. 1 Gammel's Laws, pp. 180-183.
Section 29 of the Colonization Law of April 28, 1832, which expressly repeals the law of March 24, 1825 (saving, however, the rights of those having contracts or concessions under the repealed law), provides that "the survey of vacant lands that shall be made upon the borders of any river, running rivulet or creek or lake shall not exceed one-fourth of the depth of the land granted." (1 Gammel's Laws, pp. 299-303.) And Article 22 of the Colonization Law of March 26, 1834, provides: "Lands fronting on permanent creeks, rivers, large lakes, bays and the sea shore, shall run back double the extent of their front." (1 Gammel's Laws, pp. 357-362.) These articles of the laws of 1832 and 1834 are similar in language to Section 21 of the Act of December 14, 1837 (the first part of Article 5302) which requires lands surveyed on navigable water courses to front one half of the square on the water course. The primary purpose in these similar provisions of the several laws was to prevent a locator from monopolizing the water front and the water by extending his survey up and down the margin of the stream. Thus the waters were made to serve as many people as possible. Austin v. Hall,
5 The positive statements above quoted from opinions of the Supreme Court to the effect that a law of Coahuila and Texas forbade the making of surveys across rivers and other streams, together with what appears to be the implied prohibition in Article 29 of the Act of 1832, are sufficient, we think, to support the conclusion that the inclusion of the bed of the Mission River within the boundaries of the survey made in 1834 for the Town of Refugio was contrary to law and that the sovereign retained the title to the river bed. We need not rest the decision, however, on that ground. It was within the power of the sovereign to grant to a town or to an individual the bed of public water. City of Galveston v. Menard,
There was no formal grant and there are no field notes or other description of the survey originally made and no documents evidencing the steps taken for the acquisition of the title. Neither the Colonization Law of 1825 under which the title was acquired nor the Colonization Law of 1832 contains anything to indicate an intention on the part of the State of Coahuila and Texas to grant to towns the title to the beds of public waters. There seems to be, as has been said, an implied prohibition in an article of the 1832 law against the making of surveys across rivers and running creeks.
6 Looking generally to the rules and policies of the civil law, we find that they negative rather than prove the existence of an intention on the part of the government to divest itself of title to the bed of a stream of this size and kind. The civil law prevailing in Mexico was most favorable to public ownership. A striking example of that fact is found in the law of Mexico by which all mines belonged to the sovereign and under which minerals did not pass by the ordinary grant of land without express words of designation. Cox v. Robison,
The civil law of Mexico, in its designation of rivers as public property, made no distinction by reason of navigability or nonnavigability. State v. Grubstake Investment Association,
"The status of the law in Texas when we adopted the common law as the rule of decision in 1840 was as follows: Texas owned the beds of all perennial streams, regardless of navigability, whether grants of land adjacent were made by Spain and Mexico prior to March 2, 1836, or by the Republic of *359 Texas prior to the Act of 1837, by virtue of the civil law ofMexico."
The opinion of the Chief Justice in Motl v. Boyd,
Associate Justice GREENWOOD found in Law 31, Title 28, Part 3 of the Partidas the principal support for the conclusion that grants of land on the Frio River made in 1835 did not convey to the grantees title to the bed of the river. The substance of that law is that when a river takes a new course, abandoning its former bed, the abandoned bed will belong to the owners of the adjoining lands, and the owner of the land through which the river makes its new bed will lose the property in the soil it covers, which will be of the same nature as the former bed and vest in the public. That law clearly evidences a policy of public ownership of all river beds. It assumes that they belong to the public prior to their abandonment and it assures continued public ownership by going to the extent of taking (not merely withholding) title from private ownership and vesting it in the public.
We do not hold that all grants made under the laws of the State of Coahuila and Texas that include within their exterior boundaries beds of rivers are void as to the river bed areas. But we hold that the Town of Refugio did not acquire by the grant of the four leagues of land made to it in 1834 title to the part of the bed of the Mission River within the four leagues. There is no evidence in the law by virtue of which the grant was made or in the documents effecting the grant, of a certain and specific intention on the part of the government to divest itself of title to the river bed. Presumption and the policy of the Mexican civil law favor public ownership, and in our opinion the mere inclusion of the river bed area within the boundaries of the survey of the four leagues is not sufficient to overcome that presumption and policy.
7 The argument is made that the grant should be construed as vesting the title to the river bed in the Town of Refugio in trust for the public, it being a governmental agency. We find nothing to indicate such intention and can not assume it *360
in contradiction of the statement so often made in the decisions that the government has reserved the title to the beds of such streams to itself in trust for all of the people. City of Galveston v. Menard,
The opinion expressed herein as to the title acquired by the Town of Refugio under the Mexican grant is not in conflict with Anderson v. Polk,
The State by an Act of the regular session of the 41st Legislature, known as the Small Bill (Chapter 138, pp. 298-303), *361
relinquished, quitclaimed and granted to patentees and awardees, and their assigns, of lands lying across or partly across water courses or navigable streams, all of the beds of such water courses and streams, and the minerals therein contained, included in surveys of such lands theretofore made, and to which lands patents had been issued and were outstanding for a period of ten years. By the third section of the Act all of its provisions are made to apply to all Spanish and Mexican grants and titles issued prior to the Texas Revolution and subsequently recognized as valid by the Republic of Texas or by the State of Texas. This law was attacked by the State as unconstitutional on various grounds and its validity was sustained in State v. Bradford,
The Small Bill became effective March 3, 1929. The deeds by which the Town of Refugio in the years 1848 to 1852 conveyed the farm lots adjoining the river to those under whom plaintiffs in error hold conveyed no part of the bed of the river, because the river bed was then owned by the State. Since the Small Bill was enacted less than ten years ago, plaintiffs in error have not acquired by adverse possession the title that may have passed to the Town of Refugio under that law.
The record contains no evidence as to the number of acres within the boundaries of the four leagues of land surveyed for the Town of Refugio in 1834, and the cause will be remanded to the district court for ascertainment of that fact. If it is found that the tract surveyed for the town in 1834 contains, including the river bed, no more than four leagues of land, judgment will be rendered in favor of the defendant in error (whether the State of Texas becomes or does not become a party to the suit) for the title and possession of that part of the land described in its petition which is a portion of the bed of the Mission River. If the said tract surveyed for the Town of Refugio is found to contain, including the bed of the river, more than four leagues of land, judgment will be rendered dismissing the cause, unless the State of Texas becomes a party to the suit. If the State of Texas becomes a party to the suit, and it is found that the said tract surveyed for the town contains, *362
exclusive of the river bed, as much as four leagues of land, judgment will be rendered in favor of the State for the title and possession of the river bed. If the State of Texas becomes a party to the suit and it is found that the said tract surveyed for the town contains, exclusive of the river bed, less than four leagues of land, judgment will be rendered, under proper pleadings, partitioning the entire river bed within the said tract surveyed for the town in 1834 between the State of Texas and the Town of Refugio in such manner as to award to the Town of Refugio the number of acres of river bed area sufficient to supply the said deficiency. The method of fixing the boundary between the river bed and the adjoining lands is stated in Motl v. Boyd,
The judgments of the trial court and of the Court of Civil Appeals, except as to the 5.28 acre tract, are reversed and the cause is remanded to the district court for further proceedings as herein directed.
Opinion adopted by the Supreme Court March 24, 1937.
Rehearing overruled May 5, 1937.