*1 Rehearing. On
PELPHREY, O. J. rehearing, Appellant, in motion for has its page called our attention to fact that opinion quoted portion 17 of our have we Clay- of a from Mr. letter Mariscal to Señor ton, December, 1899, written in reply quoted part thereafter letter Hay Clayton, Mr. thereto giving Mr. year it was written error, the cor- 1894. this date we were Hay date of from Mr.
rect Clayton letter Mr. December, being Our 1904. former opinion accordingly as to have corrected so the date of 1894; letter read instead of except rehearing, the motion for being things correction, over- above all ruled. &
SAN LORENZO TITLE IMPROVEMENT CO. v. CAPLES et al.
No. 2653. Appeals Civil El
Court of Texas. Paso. Feb.
Rehearing Denied
330 Appellant pleaded the same further subject jurisdiction of was a the banco Boundary International Commission treaty. provided Appellant pleaded a further title obtained Urias, by libeling property Alfredo accordance of the state of 1926, with article thе Civil Code Chihuahua, August filed Knollenberg Gamble, McKenzie, & pleaded Walthall or- in- and in detail the various Quaid, Joseph Sweeney, Cameron, E. J. & and lant. U. ders and minutes of the court of first appel- Paso, Sydney Smith, for El filed, by all of stance in which the libel was virtue land was declared to vacant bet sold, land, sold, and, and was ordered when Jr., Roy Burges, Howe, D. R. P. Walter S. purchased was and Alfredo Urias deeded Jackson, Turney, Burges, Pol-& and Culwell himto It does court of first instance. lard, Paso, appellees. all of El for plead appraisement not re- of the land as quired by the statute nor the notices Special CALDWELL, Jus- Associate J. M. posted customary places. at the tice. replied by general demur- The defendants appellant, Im- Title & Lorenzo San The general rer, nial, plea guilty, de- and a a of not trust, Company, provement a sued E. A. pleaded lim- also аnd the statutes of further Capíes, Capíes, and M. husband Dolores and five, years, three, itations of and ten and title, trespass try wife, form of the usual year next of one the statutes before then limitation describing property in22 as lots 21 and suit, and the commencement of the subdivision, Collingsworth as shown block City warrantor, impleaded their map recorded in a of such subdivision on deed records ap- Paso, Tex., Mortgage Company of El with cpunty, It al- El Paso Tex. propriate pleading recovery that, their for predeces- fee, leged it its title in money paid it, warrantor for and of, enti- sors tled 1898. It then had been the owners in title sums. held cancellation of notes still of the premises possession of, since purchase price prop- as erty. specially pleaded title to No. banco what known “San Lorenzo” bounds, 802,describing by al- defendant, Company it mеtes and City Mortgage The leged property Loren- Tex., interpleaded known as “San Paso, as a war- of El so 21, 1930, prior to March Capíes, zo” was banco defendants rantor of the title of the answered with eral denial and Chihuahua, general gen- territorial limits of the state a demurrer and republic Mexico, but was on the left side guilty, plea a with Grande, five, ten, Rio and that on March pleas three, the twenty-five years, of limitation of Boundary International Commissionclas- also, as to the defend- “banco,” the land a and eliminated sified Capíes, performance their ants general warranty tender of the same as “San Lorenzo No. Banco 302.” conveyance. in the deed of ' appellant pleaded further below, appellant herein, plaintiff filed (9 Guadalupe Hidalgo 922) S.U. Stat. reply petition supplemental its first answer 1512), (26 S. U. Stat. creat- City Mortgage Company, and ing International Commission general excepted a answer with demur- Treaty of 1905 between the United plea exceptions special and a rer and certain of America the United States City States guilty to the cross-action of not Mortgage 1, 3, pleading specially Mexico, articles Company. 1863). (35 of 1905 U. Stat. cause, hearing Upon the trial court pleaded findings Appellant further general de- demurrers overruled the fendants, Boundary Commissionwith the International general also overruled the de- banco the San Lorenzo No. special exceptions plain- reference and murrer and especially it had been cut off defendant, pleadings of the tiff by avulsion, but that had re- from"Mexico Company, City Mortgage and the ease was part, of the United States of Mexico mained upon jury, special is- submitted tried sues, finding on March until favorably which were answered all of date the land was ceded at which thereupon ren- court to the defendants. dered to, part of, became States judgment in favor defendants America. Mortgage appropriate City relief pleaded inviolability Company. Appellant further ownership provided private by the Opinion. treaties, and other and that the do- appellant contends: said banco minion over United 21, 1930, (1) That the decision of Mexico until March at Commission, 21, 1930, passed dated time dominion dispute the land fact that established the of America. gives meet, and tion where how to run instruc- that date under them times before all jurisdiction mark defined States of the line of the United disposition provides subject the the result second It as to title article. further and government. agreed considered should be *3 part treaty, а and have the same force (2) that Alfredo Urias contends It further treaty. as if it were inserted the The func- judgment through the of obtained title Mexican statute ence to the tion of this Commission to make a was not court, acting in accordance with boundary nations, between two but to Chihuahua, refer- state of precision fix with more and mark the lo- as lands, acquisition vacant boundary prescribed by cation of that by holds of that title. that it now virtue treaty itself. try trespass Since this is suit Guadalupe Hidalgo, signed The upon title, appellant must and the recover February 2,1848, July finally proclaimed title, apparent strength it is the that the of its own (9 922, 927), proceeds 1848 U. S. Stat. questions these two determination boundary state article 5 thereof what the validity invalidity of or will determine its claims and republics line of the two It further shall be. right to of its recover. provides appointment of commissions upon appellant’s properly pass In order to port Diego, who “shall meet at proceed of San necessary contention, it is to examine first boundary to run and mark the said diplomatic correspond- treaties of, in its whole the Rio course mouth findings and the the two nations ence between * * * Bravo the result del Norte Commission, of the International agreed upon by shall be them deemed examination court must be treaty, of this same force and shall prin- guided by following well-established as if were inserted therein.” ciples : language A careful consideration affecting supreme (1) are the law of the Treaties treaty boundary this tween line be- judicial land, courts must take knowl and the two nations leads to the inevitable leading edge historical data thereof boundary conclusion that the itself was fixed them, up as well as the construction (cid:127) treaty, and that of the the function judicial them the executive and both upon the.ground Commissionwas mark government. branches of boundary as it had been so fixed. political treaty, (2) effect of a As In the known as Gads- interpretation of the executive branch Treaty, signed 30,1853, den finally on December conclusively binding government on is proclaimed (10 June U. S. treaty courts, parties and on the but 1031), provision. Stat. we find a similar interpret duty rests the courts to on boundary specified Treaty, and, in the aft- apply private treaty its the rights. specification er a boundary, we find provision governments each the two political question in this case shall nominate a commissioner who shall strictly character, time, but is to a its contest of confined meet -with the other within a limited private “proceed survey upon between citizens of and the land the аrticle, mark out stipulated by dividing who reside the state of United States line already Texas. where it shall not have been surveyed and established mixed (3)There question is no of cession of ter com7 mission, according treaty case, of GuadaL govern ritory as cession, instant upe.” (Article 1.) ments disclaim the finally concluded provides on that that, It further when so fixed understanding diploma between basis of tic commissioners, the come an the their decision shall be- representatives of both countries. Geo integral part treaty . without froy Riggs, 133 10 Ct. necessity v. U. S. ap- of ulterior ratification or Arbitration, Appendix Ohamizal L. Ed. proval, interpretation room for and without America, of the United States parties to the Case kind either contract- page p. 676; seq., clearly ing. treaty also et policy vol. 967 to follows the seq., 1034,1042,1043,1044, 999 et two of the other treaties in each first de- boundary fining nations, between the boundary two The first between the appointing and afterwards a commission America United States duty sole whose was so fixed. function to as- signed Washing- Mexico was that at States of mark the certain and January 12, 1828, pro- finally ton (8 372). April claimed second article 1832 U. S. Stat. this the two nations entered into á signed defines the bound- Convention which was - ary Washington July 29, 1882, finally line between United States of Ameri- 5,1883 (22 proclaimed 986). ca and the United terms. The appointment of Mexico in exact U. S. Stat. provides purpose third article Convention is stated survey- object aof commissioner and a 1 as follows: “With the, ascertaining nation, present or for each and directs them condition of when princi- ples By marking international law. those be- monuments tween the United States - ples qhahges middle in the location of the the the the America and deepest “following channel river established United States of one,” February 2nd, 1848, has than when and Decem- where it more treaties of ber what ed or removed and generally accretion, determining no effect 3rd, 1853, erosion and had deepest destroy- boundary any, still remained monuments, if have been stream, running may require to be re- channel of the avulsion left the replaced, preliminary 'as were made reconnais'- built or by boundary middle of the bed stream be made line shall sance each the frontier place at the where was before avulsive government, six months within Appendix change. Arbitration, exchange Chamizal this conven- ratifications of America, vol. the Case of the United tion.” *4 2, pp. 567; 559 of Nebraska v. State State provides appointment of 2 Article Iowa, 359, 12 36 143 U. Ct. S. L. Boundary Commission. International Ed. 186. prescribes Com- duties of the 3 the Article rule to observed thereafter deter- be authority. power mission, limits its and and boundary mining line between two authority power Commission The as and is down in 1 2 countries the set articles and fully fully is out and set thus established Treaty which as read follows: quote: “The which we limited international commission, dividing boundary shall for 1: “The line be Article shall authority Treaty power required in the and ever be that described aforesaid and have the along proper places the normal channel the bound- and follow the center of to set in their ary co, named, notwithstanding States and Mexi- of the rivers line between Grande, in the or in the Rio alterations banks course from the Ocean to the Pacific rivers, placed provided that such there under those alterations monuments heretofore the existing through by treaties, natural monuments be causes such effected whenever gradual dеposit displaced; al new slow erosion to erect and become shall have by of an former monuments luvium and not the abandonment monuments on the site when these destroyed; opening existing river bed of a new been shall have may points as at one.”1 set new monuments joint necessary, by be accord chosen he “Any by change, wrought 2: other Article Engineers-in- two Commissioner between the by current, the ting whether cut- force rebuilding replacing old In Chief. bed, new when is there more or ones, providing for new monuments and by deepening channel than one other boundary an- reports respective the reconnaissance channel than marked that which may by I, parties, provided con- Article be survey at the time of the however, ; provided, that the distance sulted Treaty, produce under aforesaid shall no shall monuments two consecutive between never change dividing line as fixed metres, eight and that thousand exceed surveys Com- may parts of of those limit reduced missions shall original but the line then fixed capable inhabited or which are the line to follow the continue middle of the habitation.” bed, though channel even this should authority dry wholly is become that no or be obstructed be observed de- It will posits.” granted treaty boundary amend the line alter or diplomatic correspondence After extensive fixed nations as the two between Treaty of international and after full consideration law, Guadalupe Hidalgo and the Gads- representatives of the two nations power Treaty, their and au- that but den thority agreed language should be there substituted the strictly limited to ascertain- Treaty 1884 of article remarking as the lines fixed ment quoted. deepest as above The middle boundary those Treatiеs. still the channel of river was recognized by gov- exception, places the two all not within that In it was Emory Salazar of the Rio followed the the where ernments Grande exception as fixed Colorado treaty Guadalupe obtained. and Rio Hidal- fifth article Boundary Commission The International Treaty go the Gadsden first article of expired provided limitation, of 1882 for in the change op- subject on account of the was eration of signed rivers, forces the two natural Washington 1, 1889, 26 U. S. Stat. at and, protect interest of both nations establishing pres- entered into concerning light law international Boundary Commission. Its existence ent erosion, 1884 was by subsequent avulsion been continued Con- and has Washington signed November up between the two nations to date. ventions September (24 finally proclaimed 1886 U. preamble to this recited: g. 1012). Stat. States America and thе Unit- “The United desiring treaties, contracts between facilitate n former ed subject principles princi- carrying nations, out contained the two 12th, 1884, witnesses, information, take to summon and to of November testimony reason of reference matters difficulties occasioned avoid required place they changes of on the bed are a decision. take the Colorado and that of the Rio Grande provides judgment Article they River, portion where thereof binding commissioners shall on both Re- two between serve as a publics, for governments, unless shall one of them dis- resolved to conclude approve it within month one reckoned from objects, and have the attainment of these day pro- on which it shall have been respective Plenipoten- appointed their nounced. ”*** tiaries. power inquiry, to make provides or of Stаtes of “All differences that: Article papers information, receive testimony and take questions portion arise personal to make examination frontier between give decisions, of the matter and to is strict- of Mexico United States America ly prescribed confined duties articles Colorado Riv- where Grande and the the Rio Convention, and, 4 and 5 of the as affects the boundary line, such dif- ers form ferences whether present personal case, “to amake examina- grow questions of alterations out or change, compare tion of such it with the or Grande and that of the in the bed of aforesaid Rio change bed took of the river it was before the aforesaid Colorado surveys, place, as shown and to River, may be that any constructed or works through *5 whether has decide occurred avul- affecting rivers, in the cause said or of other erosion, sion or for the effects of Articles r boundary line, shall submitted for ex- be 12th, and II of convention of November and decision to an International- amination 1884.” Boundary Commission, which shall have ex- agreement No new is between jurisdiction in of said clusive the case dif- respect boundary, two nations with to nor questions.” ferences or empowered into, is the Commission to enter appointment provides 2 Article of any agreement, but the new Commission Commission; provides a manner and states article 3 for the expressly facts, instructed find to “for place meeting; of article 4 I the effects of Articles II of con- power limits the of the Commis- 12th, vention of November 1884.” sion, and is here set out in full follows: continuing The Conventions the Interna- owing causes, “When, natural Article 4: to Boundary change tional Commissionmake no place change shall take in bed of the powers that of Commission. River, in Rio in that of the Colorado Grande or Boundary portion thereof that wherein those riv- Commission great difficulty boundary applying princi- .found in ers form the line between the two ples boundary Treaty countries, in enunciated of 1884 which affect to the line, given by river, actual conditions which and that in notice of fact shall be existed proper brought difficulties local authorities both these on sides to respective departments. respective attention of the their national ing Commissioners of the Inter- state Boundary Among Commission, they the difficulties with which had receiv- cope duty to taken care it shall were two conditions which which notice be the were not by repair Treaty place Commission to the or the to where to wit: said change place question taken the has of has to First, thеy found that some in instances personal arisen, a make examination Treaty land was added under 1 of article change, compare with it the bed by of 1884 erosion accretion to the land change it the river as was before the took belonging opposite nation, by hut that place, by surveys, shown to decide subsequent means of a rise the river this through whether occurred it has avulsion or away land from the under added article 1 was cut erosion, for the I and effects Articles II of belonged to which the nation it under 12th, 18^4; the convention of November hav- by treaty article of that 2 ing this, it- shall done make suitable annota- river, an avulsive action of the and thus surveys boundary tions on of the line.” by application accrued virtue of the duty points out the with Article 5 refer- of both sections. being works constructed either of ence to the rivers. Again, might by a of land be tract cut off “banco,” avulsion form a true sub- requires personal Article 6 examination sequent strip action of river a erosive change, the matter which occasioned interposed land between the of channel of the true would question complaint, requires or the stream and the “banco” as regard its decision off, grew of which thus cut the out confusion in same, complying requirements the regulations with or application principles of the articles be established Commis- Treaty diplo- 2 1 and of the 1884. The approved governments. sion correspondence between the two coun- matic reports provides Article the Commission tries and of the International 7 power papers Boundary replete shall to call for Commission are with have the cases Treaty had, time, appli- been sur- making difficulty proper of 1884 special of cation of those veyed mission, respective Com- the International principles. maps thereof returned way dif- out these find effort to governments ar- effect of might they by which fix rule ficulties and to be Treaty 1884. The ticles Secretary avoided, State disposes in ar- bancos of 1905 of those sent of America drafted States United 1, appropriating States United ticle Mexico all bancos deepest Department to the State right of the located sug- a, he tentative Mexico right stream, or to of the channel gested might This troubles. these obviate fixed in- was draft tentative closed Treaty, Guadalupe Hidalgo and Gadsden Olney Secretary letter from appropriating diplomatic repre- Romero, Don Matías already surveyed America all bancos those government of the Mexican sentative deepest lay and which on the left hank February 19, Washington, bearing Boundary Commission, As dated is, effect, to channel the stream. of the International on the place say where is in the that the significant agreed Guada- it was proposed in that note article wit, lupe Hidalgo, middle adopted, treaty, was draft never deepest river, channel of the wherever provided transfer “ban- that the might be, except bancos the as to those “with metes co” should be announced and bounds definite of which over 250hectares or with area population an International souls. Commission the form and manner that oth- Article makes questions judgments on to them er are announced.” submitted provision elmina- rule of further tion established language If this had been ap- 1 should be adopted by high contracting parties, there formed, already plied to all bancos those woirld be no dоubt with reference to the date yet surveyed, all those bancos but not sovereignty on which the and domin- subsequently be formed the the which should bancos, but, ion reference to accrued *6 give It not of the river. does to action having eliminated, been we must hold that International Commission authority of the Commission boundary. power fix It does point denied. was power authority mark and and them Subsequent diplomatic correspondence be- of location establish the to tween the two nations in culminated given whether or not banco determine Treaty easy of 1905. It was found exception mentioned in ar- comes within the satisfactory draft a convention virtue 2. ticle fact, of the heretofore in referred to this appellant sup contends in its opinion, government But the Mexican took language plemental ar used in position brief that authority thе territory, that it had no to cede Treaty conclusively of 18S4 set position 5 of the ticle which was also concurred jurisdiction territory off of the cut tles Department in State' of the United changes. by evulsive authority States of so far as to cede America belonging Treaty land This to a state was concerned. Article of of 1884 as 5 reads difficulty finally respect property “Rights was obviated of in of follows: suggestion treaty may separated did not concern have become which lands through territory, merely the cession of but concern- of channels the creation new as de- fixing hereof, separating ed of II in shall not af- Article be fined sovereignty territory, ques- thereby, shall which waá but such lands continue fected jurisdiction country suggestion tionable. This made of the be under the the State to Department Washington belonged. by. they previously accepted no at to which jurisdic- Department however, case, the State this retained shall United right treaty signed right or control the of navi- written and affect tional gation Every in form which it countries under now stands. common to two powers stipulations reference Boundary diplomatic correspondence of the of article VII of the afore- the said ‘ Guadalupe ; Treaty Hidalgo Commission and such contained preju- continue without actually navigable was eliminated shall common dice channels the treaty, throughout final draft of the main the with the signed rivers, as left the Commission said from mouth powers point previous- which Rio it had to the where the Grande Rio ly had, and no more. to be the international ceases Colorado though any payt boundary, of the chan- even Treaty 1905, for the elimination of through rivers, here- of said nel the “bancos” of the Rio Grande from ef- may comprised against, provided within Treaty fects 12,1884, article 2 of the of November territory nations.” of the two of one signed Washington 20, (35 1S63), comparison proclaimed ar- 1905 U. S. Stat. between When 5, Fifty-eight Treaty 1, in June of 1884 article 5 of the bancos or areas ticle Treaty coming directly land under article 4 article 2 of the connection with paragraph 1905, apparent of Rio and its that the first Verde mouth it is the Gulf Mex- Treaty graphically represented ico, read cannot he 5 of the of 1884 four Treaty photographic copy. 1 of sheets of the connection with article Treaty your Article 5 stand. communication, “I have laid juris- relating of diction of the continues the lands under the case, all matter before the previ- country they to which Republic, President of the direc his Treaty ously belonged; pf you article 1 I tion hоnor to inform jurisdiction, utterly as Mexico, transfers States, decidedly like the United n wellas men- bancos bancos, land included in favor of the elimination of the article, part the United judging only tioned in that to to the way ques it to be the avoid and and sovereignty jurisdiction. Mexico tions of Under expressly America, States of carries accepted system the old and which we have jurisdiction na- applied dominion of each to the Bravo, using that of rivers to apportioned. un- If we tion to which it is dertake 5 boundary, define the frontier it must be ac paragraph of article cepted read the first as an invariable basis that bank one Treaty Treaty into the belongs of 1884 country oppo to one the bank reference we have conflict with boundary, site to the other. The actual where jurisdiction cannot dominion and which situated, the bancos are interferes with the and therefore noth stand, lands, dominion because the application ing basis, of this jurisdiction country which the ban- eliminate, granting is better than to belonged, previously thus transferred only cos possible, easy, it is not the elements antagonistic directly the domin- would be principle being which interfere with it. jurisdiction given ion and under the accepted, plying adopt ap it remains to the form of of 1905. it, can be there no other form diplomatic than that of a ments with which propose ex- convention. Article makes Docu you perfectly provision private press for titles to lands are familiar prepare express pro- way it; they bancos, situated on the vision well are: Proceedings citizenship persons re- the International Bound .the ary January and, siding thereon, when the two treaties are No1 together, think that the vember thе draff of the and of June construed we the supersedes of 1884 so submitted the Hon Olney representative property is orable Mr. far as its treatment Washington February 29, Mexico concerned. This is accordance that, are, however, open familiar rule where there are two con- “These documents ato might given, objection, one of structions use serious abstract terms —the generic definitions, stat- is consistent with the .and which tomorrow *7 treaty, in- and the other of which ute or be inevitable source of vexatious am- consistent, away biguities. them, the consistent construction will To do with* consider- prevail. ing degree hy- advancement reached in drographic by studies the International Com- this construction correct That mission, it will be sufficient to utilize this respective contemplation of in State De- study agreement it the rank of an by partments following is bоrne out ex- a made under convention. diplomatic correspondence from the on tracts this therefore, honor, “I have the direction subject Treaty before the of 1905 was Magistrate, propose you of the Chief to adopted: carry our Governments into effect May 1, 1899, secretary Mariscal, On Señor following basis, you please the submit, will n foreign Republic, of Mexican relations you proper, your if think it Gov- McGreery, wrote to United States Mr. Minister and exact ernment: dear reference to the of America to fol- as designation by topography, with name of the lows: eliminated, and to be also to the arti- bancos “Department Foreign Affairs, prior treaties which in cles of are conflict Mexico, May 1, principle of the with elimination of ban- Charge which, therefore, D’Affaires: cos, modified; “Mr. I had the honor should be your foreseeing notes of to receive the 21st in and 28th the course of future ultimo, copy, elegantly them, and with the a Bravo, second and for a decision view of bound, report proceedings prorogue of the of the of the the International Commission Boundary Commission, pres- prudent period. Lastly, International ent which under which a for a Willhave the convention appreciate. notes, I much In both to establish rules relative citizen- ship, property instructions from the Government and servitudes the bancos you represent, you recommend, rights may question, in order that these in not be affected urgency proper case, change sovereignty de- definite jurisdiction. cision as to the elimination or non-elimina- and which, owing renew, etc., tion of bancos to natural “I causes, “Igno. have been formed in that Mariscal. ' points MeOreery, Bravo between the of affluence of the “Mr. Fenten etc. etc.” R. merged right Appendix dominion and sover- with the Arbitration Chamizal change eignty States, 2, p. 1017. in the river vol. effected Case of treaty. pursuance in recognizes terms of the paragraph language used in the second The Depart- agreement State system accepted “under the old and vestige every settling ment the date on which using Bravo, applied that of we ceased. boundary, it must the frontier rivers to define accepted appellant, one an invariable basis that be bank No. contends that Minute country belongs 123, promulgated 21, 1930, and the bank to one on March other,” crystalizes opposite ideas Boundary Commission, affirma- gov- diplomatic tively two branches “San Lorenzo” banco finds that ernments, prior correct basis and affords the all No. 302 had been at times reading trеaties either the construction of the date in A of Minute Mexico. careful ju- application by political effect or for bear No. does not seem to us to out They merely dicial branch. the rec- contention. ords show that find that during Rio floods proposal paragraph out in the last set July, 1898, of land known quoted accepted rep- Grande of a tract of resentatives quently the letter “Bosque de San Lorenzo” was del Real subse- States and segregated territory, fur- Treaty from Mexican written into the consulting engineers of ther recite that language reported a careful con- the Commission sideration of true that as explicit ad- article is too all the evidence showed that any other construction. mit change occurred avulsive quoted length We have from all these banco com- result the was formed poliсies treaties order that the of the two ing They did not under the of 1905. readily governments Erom seen. changes prior anything find with reference to appears consideration it that there was a this change Treaty to 1898. original provision from the Kenedy principles Guadalupe Hidalgo, wit, “from enunciated following up river, State, Pasture Co. v. 111 Tex. 231 W. thence the the middle of 683; Reynes, deepest channel,” United States v. 1 How. principles Jury, interna- 13 L. Ed. Davis v. Police 9 How. which introduces the many decisions, 13 L. Ed. law of avulsion and erosion. This was other tional Treaty appear applicable unsatisfactory present that the to us to be to be so found of 1905 shifting Guadalupe Hidalgo readopted right case. eignty If the was transferred of dominion and sover into and was entered created action of the or, again agreed off, river when the banco was cut аs in the following present case, Treaty, Gadsden. but at the on which the date say, deep- following sovereignty effective, “That is to then the retained words: was by channel of the stream.” the United States of Mexico over “San est Lorenzo” banco No. 302 was such a sover duty ap- the Commission It laid eignty might necessary gov plying same line to bancos territory police protec ernment of yet surveyed but not formed bancos tion, granting but could not extend to the yet boundary, formed. It fixed the to be might prejudice titles or to the act which duty ascertaining left the Commission of the United States of America marking it. *8 territory acquired by it. is thus It The cited, so held in the cases above and we so fixing extended to has never of the bound- present hold in ease. Erom this it fol line, merely duty ary marking ap lows that we overrule the contention of determining the location of that pellant that the court of first in instance treaty. that, It follows fixed present under the city of Juarez the state of had Chihuahua treaty provision, whenever the river authority jurisdiction to the title issue portion off avulsion a has cut from one litical dominion and land appellant depends. on which the We hold other, right po- side or the that, though might even it have had the sovereignty over that political right govern police to the ter particular portion of the land so cut is off ritory right banco, of the “San Lorenzo” it had no immediately by the terms of the trans- any after the date of the to do country ferred to the to which it been has prejudice rights which would act United States America or of the added the river. The and the action of the natural forces state right political dominion Texas in so far as the land included therein sovereignty distinguished is here from is concerned. We do not wish to be under sovereignty. the actual dominion and The holding stood as that under the facts sovereignty might actual dominion and con- case the United States of Mexico had control tinue until such time as the International prove of this “banco.” The record seems to Boundary Commission has made its investi- contrary to be true. gations decision, and rendered its and for thirty days thereafter, Having at which time "the decided that there was no au sovereignty thority residing dominion and actual becomes in the United States of Mex- grant appellant ico on which the proceeding special one, title is a and its valid superfluous depends, ity consider depends upon'the it accuracy absolute appellant tbe second contention of the Cunningham which the statute is followed. good emanating it has a valid title Robison, 441; v. gus 104 Tex. S. 136 W. Min the court first instance the state Chi- Wadley, v. 115 Tex. 285 W. great huahua. care We have examined with Powell, Thatcher v. Wheat. Ed. L. pleadings the this case to maintain the and have the evidence introduced title, appellant’s being steps This one of neces conclusion that reached the sary jurisdiction judg to enter the proceeding sought under which Alfredo Urias ment, it would be anomalous to hold that is to obtain title to the “San Lorenzo” banco judgment greater recital in the was of effect special every proceeding, each and and that fact, very step, than the actual which, being omitted, or that the step necessary perfect must that title judgment makes the proved. pleaded Such would be the void, proved could not be to show its invalid special proceedings in a Texas court case under the Texas statutes. ity. properly The trial cоurt admitted testimony concerning occupancy, and the tes attempting appellant, plead its timony abundantly juris shows the lack of plead appraisement title, omits to as re- judgment void, diction and is not quired by Chihuahua, and also the statutes of merely and, voidable, being subject void, is required published that certain notices at the usual anywhere to attack time. customary places. proof that, Por all of which objection reasons we conclude offered and appellees over, admitted sovereign- if ty had statutory we decided appraise- that the fails to show ment, prescribed by given dominion as well as the actual sover- notices were eignty description dominion of the “San Lorenzo” law. The property banco resided in the Mexi- is United States of it cannot such that be located promulgation appel- co until one month after the extrinsic aid. It without is true Minute No. 123 lants offered in evidence a so-called correc- International Bound- ary Commission, which, admissible, might supply plain- tion deficiency if even that event the description. sufficient, is title not correction tiff’s account because, irregularities above, inadmissible made it to have been shows cited to enable it re- court of minor character another cover from the in a defendant case tres- instance, pass try court first title a Texas court. jurisdiction original proceeding. had holding court above set out parte ex In that court it was entered justify would a the .reversal case with required notice such as is without instructions trial court to sustain the judgment correction of a which after the term at general demurrer of the defendants. The given No rendered. notices were upon theory, was not tried case possession. people in appellant appellee neither the nor the has appellant contends that no notice was assigned ground, and, on that error while occupants due of the so-called vacant land might, motion, this court of its own deter- asserting virtue the Mexican stat- error, on fundamental mine case we think present ute of Mexico aliens cannot property and the constitution of tried, best to examine the case acquire rights to real theory evidently appellee whic-h was followed both especially in Mexico and in the bor- by appellant below. court leagues. der It is sufficient answer to this Appellant introduced as evidence on vari- contention cite 123, promulgated by main No. case Minute preserva- ous treaties with reference to the Commission. tion of of citizens of ei- titles expressly report refers to This minute the change in ther nation affected bound- consulting engineers, dated aries. report approved by 1930,and which solemn The treaties are contracts be *9 Commission and made a attached Minute No. 123 nations, tween the and have the effect of part report thereof. The suspending the to aliens in far law as so as engineers namely, consulting maps, attached rights guar the are in conflict with the same Map map “San Banco No. 302 Lorenzo” and a anteed in the To hold otherwise is treaties. of river near “San Lorenzo.” movements annul all of treaties with map the river movements near “San The Lorenzo” rights property. It reference real was superimposes eight channels river occupants therefore essential that the (1) following from sources: The Salazаr required by banco have the notice stat Survey of 1852—an official Com- affirmatively ap utes pears Chihuahua'which it record; (2) patent mission the Texas river of given. not was county records; El Paso taken from the being (3) coun- river of Heldt appellant Heldt But the that mat- contends time; (4) ty engineer precluded judgment that ter is court Geological Survey instance, judgment river made and that its can- of first - 1889; (6) (5) Randolph river collaterally. above, river of not be attached As said introduced, survey 1897, being nent after H. Par- had been of ker, county made A. Minute 123 engineer year; (7) and ground should have been sustained on the that opinion, above around banco stated that channel abandoned the surveyed by adjacent in title was re- Follet. shown Minute and the river as port consulting engineers maps surveyed 1899; (8) river of 1928 as part which were attached and made a Commission. Minute 123 to have emanated from Texas signed duly map the commission- lay wholly at the in Tex- time the land when and of Mexico. ers of the United as,, protected was therefore that the title objected testimony ants, testimony the defend- not was pertain- under clauses the treaties those part the uncontested stands ing rights. property An ex- trial the case. comparison map with of this amination properly The court overruled the ob that shows in the statements fact exhibits jections appellant introduction 2, Collingsworth sub- block lots 21 and emanating Tex the title from state of Emory-Salazar division, north of the lie as for a similar reason. Patent river of 1854. north of the channel and It 1854 is the no error in submit- It follows there is the Patent river further shows ting jury on case to the issues Viejo” referred to “Rio submitted, unless which it indeed patent state issued field *10 per- owners claimants nor possession thereof. At the sons in objection time this Minute No. 123 had not plaintiffs case, been introduced objection perti- especially became notes fact the should have instructed a ver- court Buchanan, assignee Col- of Texas to dict in the defendants without sub- favor of lingsworth. jury. mitting question testimony R. E. Owen Exhibit assignments appellant's All error are Viejo location the Rio ZZ confirms judgment overruled, trial court Patent with the coincident river is affirmed. map of river commissioners’ shown on the movements. J., PELPHREY, and GOWAN JONES. O. (cid:127) engineers report consulting Special Justice, concur. Associate they attached, map is conclude which this ran 1889 until the river M. GOWAN JONES J. CALDWELL They finding no make banco. around the appointed by Special Associate Justices the river location of before Sterling places Governor fill the of As- year 1889. WALTHALL, sociate HIGGINS Justices disqualified. Property citizens na- of either who were inviolably respected pro- under the tion are every treaty in- since and visions of each Hidalgo, Guadalupe cluding the consulting if, found en- and gineers, patent is here Viejo” according ran “Rio map, adopted of this commissioners’ re- and port, lingsworth et v. HOUSTON HOWERTON. patent al. Buchanan of Col- then the lay wholly Survey 13 No. 1159. in Texas patent at and was issued the date Appeals Court of Texas. of Civil Waco. subsequent in the river bed prejudice of that title could work to the not emanating govern- under Rehearing April 14, Denied dominion of it at which had time. ment very expressly in their terms fact that subse- treaties titles, reserve quent placed movements river right-hand side the river could land not issued. the titles which were theretofore affect objected appellee to the introduction proceedings in the court in- of first state of Chihuahua stance ground affirmatively appeared jurisdiction court had of the sub- ject-matter controversy nor the land nor