*1 (2d) City Co., of Baird Texas 174 S. v. West Utilities W. refused, by respondent, writ a franchise forfeiture case cited point. not in Jasper County
Since commissioner’s court of was with- rights power out by respondent pur- claimed ported franchise and extensions thereof are of no force and against city’s procedure effect as under its ordinance. Pot- County Slaughter (Com. ter App.), C.C. Cattle Co. 254 S. 775, 777; City Big Spring Ward, W. rights (2d) S. W. 151. The claimed franchise cannot therefore city’s estoppel part form the of an basis to enact and en- question. force the ordinance in judgment Appeals affirming Court Civil reversed, judgments the trial aside; court is and both are set judgment petitioner upholding is here rendered favor of question granting prayed ordinance in the full relief
by petitioners. It is ordered. so
Opinion adopted Court, Supreme July 18, 1945. Rehearing overruled October 1945.
The State et al v. Alberto Balli al. et 8187. December 1944. No. Decided
Rehearing overruled November (190 71.) Series, 2dW., S. *4 Alexander, Sharp Simp- Justice Justice Justice Chief dissenting son, opinion. filed a each General, Attorney Dallas, now Mann, former C. Gerald Attorney General, now of Mcmiseola, former Assistant Peter General, Kepke, Attorney Assistant Houston, former E. Robert Setters, Attorney General, Fagan Tulsa, Okla., Grovers now
199 George Dickson Barcus, Attorney General, W. Assistants all Austin, Texas; for the State of Potter & Bezoni and Clower Wilson, & Tyler, Hughes all al; Franklin, for et W. C. Tulsa, Okla., Sydney Smith, Paso, Crandall, El all petitioners. Appeals holding
The Court of Civil erred in that the Texas require survey Constitution did not field *5 Christi, Lawler, Corpus Childress, Houston, &Wood J. W. Dallas, McDermott, Timmins, and Paul Worth, A. of Fort respondents. 200 grant by specific
The
the Ballis was made
Padre Island to
authority
Statute,
approval
Tamaupilas
prior
of the
State
Supreme
approval
required,
of
were
was
and if such
Government
Fisk,
necessary
presumed.
could
v.
Chambers
Palacios,
229;
504, 527;
Cavazos v.
v.
150 S.
State
W.
Trevino,
in of the which did not different at time effect, now Padre Island were from those in boundaries correctly judgment from the field notes established survey. Packing Co., Boyles (2d) Lorino 169 S. v. Crawford W. 796; 235; Robison, De Merit v. 102 Texas 116 S. State v. W. 202; Assn., Din- Grubstake Investment S. W. Keeran, cans v. 192 S. 603.W. Judge Slatton, Appeals, delivered the Commission Mr. opinion for the Court. possession in- This a suit title and of Padre Island is for the County. stituted in the court of Nueces district Nueces, present Padre Island is within the counties situated Kleberg, Willacy Cameron, Kennedy, 110 miles and is about length. of Mexico on the The island is bounded the Gulf west, east, Laguna Corpus Pass on the Madre on Christi north, Santiago island Pass on the south. The Brazos original petition, on third amended described the State’s 135,213 tried, containing of land. as acres which the case was through claim adverse claimants to State base their The mesne grows conveyance Balli. Balli claim from the Padre Nicolas proceedings the State of had out of 1827-1829, years 16 of a revoked will inclusive. In clause (Spanish Balli wills of 1811 were archieved of the Padre Nicolas in acknowledged notary public whom before the office though might they take public even never effect records became as and dated November wills) the Matamoros achives extant in recited: it is grazing pasture Island, my property the as “I claim times, due to the unsettled possession, this is I not in while am adjudicated surveyed and I maintain I had it but fact my as I heirs that soon command head cattle. there perfect it until shall endeavor quiet down times *6 (or title) I so state that ownership testimonio of the is obtained. may be noted.” September independence The effective date of Mexican Spanish colony be- 1821. The of Nuevo former Santander organization Tamaulipas of the New came the after the government Mexican in 1824. general Tamaulipas, The first land law of the new State (Sayles’ General Colonization Law of December Laws, Early regard 89) provided, applications Article government for lands denounced for which the under the former incomplete, titles were as follows: Designators land, which, 26.
“Sec. in time of the ancient government, perfect adjudication did not present their shall respective authority themselves to the to continue its course ac- cording thereof, affecting to the state the same within the term forty days publication law; from the date of the of this contrary, on the open designa- said lands shall be considered tion as vacant.” 11, 1827, On December Balli, the Padre acting Nicolas through Diego Leon, attorney fact, presented de his to Lucas Fernandez, governor Tamaulipas, petition his for a com-
pleted Spanish testimonio proceedings, or, earlier in its absence, for a new Tamaulipas. title from the State of The land petition described in the as follows: Santiago “For the land of the Island of terminates at Corpus Christi Bar and consists of (or square sitios.” 1/2 leagues.) quote briefly expediente We from which was archieved in Matamoros and was offered in evidence the adverse claimants to the State:
“State of Judge “2nd of Matamoros Year inspection and demarcation of the land of the “Excediente Santiago, Island of the Brazo de jurisdiction, situated in this by the of this Denounced Governor state to the Citizen Bachelor Balli, possessor land; Nicholas as ancient of this and to his Nephew Balli.” Juan
DENUNCIO begin archived, proceedings, petition as with a to Lucas Fernandez, Tamaulipas, of date Governor December Diego Leon, attorney de fact for the Padre Nicolas portions pertinent read: Balli. Its having Reynosa appeared
“That as Attor- before Court of ney-in-fact my copy judicial solicit new Grantor proceedings (testimonio) pre- I acts sented because one your incomplete, original Excellency appeared having Archive, inferring that, in that been found may misplaced gone years by, the same have been or that the commissioner should have forwarded said instruc- dispatch (expediente) *7 to the tive Seat of Government about the Governor, year 1800 when the of is Count Sierra Gorda again your Excellency my my appeal to in name desire to the of requesting principal, that event that the the instructive dis- patch (expediente) found in the the be Archives of Govern- ment, charge, your Excellency your is now in will order which proper person copy to extend to me an official thereof the grant perfect application to of the land in the order Island Santiago, my (antiguo) principal of as first settler presented; and in the event that instructive heretofore said has found, your Excellency may accept dispatch this as new is not Santiago of that termi- application for the land the Island of Corpus and at Bar consists of Nineteen and nates Christi (19 my Principal nephew 1/2) in favor and of his sitos half willing Balli, ready satisfy who are and to and Jose Don Juan charges land, is and for said because it conven- pay the costs advantageous raising for them for the and increase of and ient they possess, prevent prop- and thus said that that the cattle by incorported prejudice. I others to their erty doubt should be Excellency taking your into consideration the fore- that not but damages by injuries and caused going, Carancahuases sandy, they adjoining Indians, are the lands have no agree possession they owners, them re- will issuing proper order of the of Justice at Court Mata- quest, necessary legal proceedings be taken until so that moros possession peaceful of said All Land. with the placed of the the Counsel audiencia the Fis- annroval cal provided the Colonization Law.” as adjudication
governor’s petition on de Leon governor’s this action embodied in January and was: decree his having the Archives this found in Government “Not dispatch nor instructive that the original proceedings, above taking rights into consideration mentions party I have determined that the represents, Alcalde of the he parties Matamoros, summoning after (Villa) surveyor Village Government, Domingo the Citizen Fuente, de la named inspection survey to the visual proceed lands shall legal steps Santiago all the other of the Island proceedings this remitting Govern- provides, all such law right opposition is no there in the event that ment so that party obsion, possession shall be extended or there adjudication property.” corresponding title DECREE DIRECTING SURVEY JUDICIAL governor’s order, judge, al- the second Pursuant Matamoros, February 8, cade, decreed 1928: “ ** * there be a and demarcation of Let the land of Santiago, jurisdiction Brazo de situated in this the Island of de- government adjudicated by said nounced to the citizens of Balli, vicinity, Bachelor Nicolas as ancient settler of said newphew Balli; proceedings land, Juan all and to his to be had Supreme conformity aforesaid, with the decree and the Colon- ** *” Law of this State. ization JUDICIAL REPORT OF VISUAL INSPECTION inspection of .the lands denounced Visual is certified having judge 14th, 15th, been conducted him 16th, on the *8 19th, 18th, February 20, and and concluded 14, 1828, February proceeded “On certificate is that he assisting witnesses, with his etc. from San Martin ‘to the Island * * * Santiago carry de to inspection of Brazo out the visual Brazo’; the other side of and crossed to began said and on day the same inspection margin ‘on the visual the other of the Brazo de beginning Santiago, point of the boundaries of the lands de- * ** by nounced Citizens Bachelor Nicolas Balli and Juan inspection day and continued the Balli’ from South to Jardín, place ‘Finding a nothing North to called El in the whole except dunes, sand salty distance travelled bays, some very little very poor pasture and land.” he inspection 15th certifies “On visual following course, continued to
the same the rancho of Santa Cruz de Vista, ‘Nothing in which Buena distance was found but sand salty bays very pasture grass dunes and with (with little opening exception of an situated at or near the entrance to said a rancho which contains certain amount grass) large a amount belonging of cattle and horses parties’. interested ‘ inspection 16th the was “On continued from Santa Cruz ‘The Place known Buena Vista to de as Los Sauces Jose, de San thing distance no other was found many but dunes, sand containing pasture a reasonable amount of grass, salty some bays, lake, belonging one fresh water and the in- some stock parties’. terested holiday, inspection
“The 17th was con- but on the 18th the place tinued from Sauces de San Jose to ‘The of San Vicente’ nothing being- “Many pasture found but sand dunes with much grass, bays, salty some and one fresh water lake’. inspection
“On the 19th the to Car- was from San Vicente ‘Many nestolendas pletely which distance found sand dunes com- was grass, salty bays, lying pasture covered with some West, belonging and East some horse- to the interested stock parties’. inspection
“On the 20th the continued from was Carnestolen- Christi, Corpus das the Brazo de the above mention- ‘Where terminate’, being ed lands ‘some there found that distance belonging parties, lands wild horse stock interested also high grass dunes, many with sand sand hills covered with some great large Muelas; de and thick trees that are known as Palo oleanders, oaks, willows, plenty of herbs known short number reeds, anise, many lakes, pools, covered fresh water day permanent’. there On the same which are known to be angle Brazo, (ricon) were inspected opening on said where an high dunes, sandy ‘good lands, some found Pasture some sand side, places. many places its and low covered with willow trees on Judge 1828) day, (February certified the same “On ‘having inspection of the Lands concluded the visual *** inspectors Santiago visual Brazo Island called de closely’ examined were the other members committee Judge inspection examination of the witnesses from the taking into consideration concluded * ** lay from its center lines “(a) of the land ‘The of several uneven and broken reason terrain which deep floods, drainage gullies in time of caused *9 the is at when sea lands are overflowed of these some high tide. for a short pasture were inhabited lands
“(b) ‘That said savage of Indians known as Taran- by the tribe period peaceful). present are (though at cahuaces supply, permanent source of water ex- ‘Being a “(c) without season, rainy the during when various lakes cept the are filled. situated therein and reservoirs mentioned, the than Santiago.’ one entrance no “(d) is other ‘There Brazo de the aforesaid solely stock and said useful for horse concluded: ‘That lands are ” cattle.’ JUDICIAL OF SURVEY REPORT having Judge survey “The the as been official is certified begun February Corpus place at M. on 20 ‘at of one P. the having Christi’, place and as concluded ‘At the aforesaid consisted, Santiago’, February basically of Brazo de 1828. It running along generally South, a line North to the from Gulf Island, angle right of shore the across the Island traverses Laguna intervals, usually ‘the borders the Madre’ at 10,000 along February varas. The line shore on was run 21st, place Corpus 20th and from the called Christi to that Carnestolendas; report inspection; called both named 21st, Laurelitos, and later on the from to Los Carnestolendas thence, 22nd, Crucitas, thence, on the de San Juan las on day, running margin the same and after a transverse ‘to the laguna’, .place it was continued to Buried ‘The Stone Augustin’ Palmerito’ to ‘Pass of San which was land- way, middle, marked as ‘The half of the land’. being holiday, survey “The 24th a was resumed
25th, running traverse, and continued after from San Au- gustin landmark to Los Sauces de San Jose. On the 26th it again continued, (with place transverse) another ato called Devisadero; 27th, transverse, from thence on the after another Vista, Rancho de Buena report inspec- identified in tion. On the place 28th was run Buena Vista to called Alta; Boquilla point departure de Loma for another trans- ; continued, verse and on transverse, the 29th it was with a final Santiago ‘until we at the arrived Brazo de where this ” terminated.’ SURVEYOR’S OFFICIAL REPORT AND' FIELD NOTES At judge officially Matamoros on March certi fied that: Domingo Fuente, “The Citizen de la Surveyor ap- Official pointed by State, persons Governor as well as Island, being that denounced well being said me known to
personally present, analytic report (Plan delivered to me his consisting Demonstrativo) pages, including of six the corre- sponding map, page, and one blank and the calculation of what of, beginning said consists better shown and in ending analysis, Leagues said which consists of Eleven large (sitios) stock and six caballerías of land of which said consists, pasture plan I order whole to be attached to the *10 Dispatch (expediente) Instructive on this matter in order to Excellency, State, remitted to be His the Governor Excellency may may in view of which His order whatever be superior pleasure by his reason of the fact that his Decree been, things, January year 2nd of the current has in all com- plied possible. with as far as captioned by
“The Plan Demonstrative sur- official veyor :
“ Santiago, Plan of the Island denounced ‘Demonstrative by Balli, uniformly the ecclesiastic Citizen Nicolas and his Balli, Village nephew, Juan Jose resident citizens of the belongs, said Island Matamoros whom which lies between the Laguna length sea Madre. Its to north con- south thirty eighty sists of nine five cordeladas. Its width portion fifty at nine from East to its widest is cordeladas West diminishing proportion unequal end in until it ends toward each following angle, in an formed curvatures bends Laguna which the uneven width shores of sea and the causes large stock and six of land. This Island contains eleven sitios caballerías.’ survey, generally field notes of the
“De la Fuente’s conforming unimportant Report (with discrepancies) were Judicial map.” Plan Demonstrative and with his included OP COUNCIL ACTION 6, 1828, May Attorney instance of the at the Fiscal or “On General, ordered Alcalde of Matamoros Governor proceedings, seemingly him the entire file of which remit to had 7, 1828, expediente done. June On thus com- Consejo, Govern-, or Council of pleted, was considered ment, reported: which Santiago Brazo de the Island of which the lands of Citi- “The possessor denounced as ancient Balli Nicolas
zen Bachelor adjudicated to him has and his brother Government which Balli, surveyed nephew) have been Juan an (should ex- analytic report shows that the sur- pert as shown correct, appears legally but aforesaid vey lands is should, they nor appraised as has the visual in- not been have according to law because there out carried has been spection been determining step whether important the lands omitted standing that in running waters so the whole Instruc- contain nothing highest possible to indicate the there Dispatch tive advantages have reason of the lands can said valuation pools springs, fresh water lakes or fresh contain *11 water; salty (or such failure is of consid- water and brackish State, importance of the which will act erable to the interests future; detrimentally to its in view of this omission the Council important opinion is of the without fact this matter concluded, keep considered as and it cannot be is advisable to everything pending according it as matter until has done been law; hearing opinion (Attor- so that after of the Fiscal corresponding may ney General) the prop- title be issued on the erty parties, very in favor of interested for a who small sum money, respect to the size of the land and of its su- perior quality, they acquire (secure) will prop- sure valuable erty, isolated, (secure) sure because is and valuable because very it is abundant natural resources that constituted it rich. opinion notwithstanding of the This is Council but what has ” forth, it will set abide decision of the been Government.’
CORRECTED REPORT OF INSPECTORS comply “In requirements order to with the of the Council the Judge July 21, 1828, Matamoros on inspec- summoned the official tors, who had acted with him Inspection in the survey; visual and reported oath, these under “ * * They say, prove affirm generally by all the old settlers as well as those that are able to know and also people new tinuously who live at this time and who have traveled con- repeatedly over the Corpus, Island of above re- to, greater ferred part that the sandy; the land is that it does pools ponds not contain (fresh) of rain water sufficient to months, last more than six no matter how abundant the rains may be, and not more than three drought; months in time of being the case that there are two reservoirs (recojerderos) for water than can last six months in times of abundant rain- stated; fall as above periods, others for rang- shorter ing month, from three to one of this last fifteen, class there are small, very ning in all the island. That there has never been run- permanent springs water and water; much less that con- stantly, livestock, regularly, as well as the inhabitants who them, get for fresh water wells, care from holes or and even this parts island, except done in all eannot be at certain well places. said, marked That besides what has been the fresh water made, that are holes or the wells that have dug, mentioned, naturally and after above short duration turns accident, brackish; when, by permanent water, good drink, high found, then the sea has tide and is are surrounded causes the lakes which by, of, and form in the interior Island, said (the being low lands the Island place overflow where causing found) thus fresh water wells to be filled with water, necessitating brackish and holes other wells dug people, the use of the as well that. as for livestock ” grazes there.’
FURTHER OF ACTION COUNCIL expediente, “The report, with the inclusion of this new again Governor, again remitted to the who referred it to the Council, reported August 8, himto 1828:
“ ‘* * * (Consejo) The Counsel is not satisfied with what has been charge Dispatch done in this (Expediente) Instructive in the dis- required by opinion what was its seventh last July, Excellency’s and of Your Decree dated the 12th of the same *12 month, noted; however, because of the therein contradiction it (the counsel) may, agreeable Excellency, permit if it is to Your remaining requirements of the law to taken until this be concluded, matter is requiring proceedings, that these be if he placed record, extending party, to the interested it, corresponding copy legal shall demand of this testimonio or ” * * *’ proceedings. expediente Council, “The with this last action of the was by Fiscal, Attorney therefore referred the Governor to the or General, August 11, 1828, reported: on who OPINION OF FISCAL
“ Dispatch ‘There are defects noted the Instructive that necessary corrected, adjoining are to be to-wit: —The owners proper inspection survey should be cited to a visual lands; none, and if are there then that fact must be stated waters, judge. appraisement necessary For the it expert, for the Government to name one parties and that the interested right name it should another. The Council is when states reports there are contradictions of the ones that made that the visual says inspection, the first that there are lakes because year hold water for a whole and then in the that will sub-se- inspection they quent said that will last not more than is six that there months. It is to noted also is no landmark to mark be starting point of the and this one defect that must corrected. be
“ your Excellency may, pleasure, if it is order that the ‘Your Dispatch returned to the Alcade of Mata- Second Instructive inspection land; moros, may proper make the so that he place where there are no fixed requiring him to mark the bound- survey began; lines; place where the to cite the ary to show giving time, owners, them reasonable that Your adjoining Excellency may designate, state, they they may if within which any thereto, have adjoining claim and if there are no owners Judge say so; parties may then for the to the interested expert, together name an so that with the one named Government, they may appraise the waters the land con- tains; agricultural to state if there are are lands good only pasture; all for visual the ones that made the inspection suspicious have no interest as will render them aforesaid, contradictions; being account of their and this done, then Dispatch to return Instructive to the Government ”*’ * * necessary dispositions. for
REPORTS OF APPRAISERS August again “On expe- the Governor ordered the diente compliance returned to require- Matamoros ments of Appraisers appointed; Council Fiscal. were Governor, Manuel Garza and Antonio Maria Casas' Ballis; appointment qualifications Judge as to whose certified:
“ ‘ * * * appear I ordered before me the Citizens Manuel la Casas, being de Garza and Antonio personally Maria who present (both me), explained known I first the confi- placed dence in him the Government of the and to the appointment by his parties represent second the interested (ensenada) their interest in the islet is situated between sea, Laguna Madre, Corpus Brazo de and Barra de Santi- *13 ago, being advised, stated, and all together, they well that ac- cepted they accept, and appointment themselves; did the made of by form, I, Judge virtue present, thereof the took their oath in due making sign Holy in the name of and God the of the Cross they promised faithfully legally under which oath in to act and and conformity knowledge they already posses the and which * * *’ they may take that land. regard by appraisers, inspection expert “And with to the the Judge the certified: “ day ‘On the same and on the same date of the month and Alcalde, year, I, may the aforementioned order that I execute Government, by Supreme that has been ordered the started the already by journey point accompanied to the mentioned the two assisting by witnesses, experts named and two without summon- ing any (citing) adjoining were none at owners as there time on Island, always possession in the had been that Balli, having following day and on the Nocolas arrived Citizen Santiago, (or my place) of Barra de crossed with at the site com- Barra, side of the Brazo said mittee to the other where I expert appraisers conformity steps the advised the Domingo by Surveyor taken in the first de la made Citizen Fuente, they carefully the land that should observe going inspect appears were as well as what to be contradic- tory appraisers, appraisement expert in the first Longoria Miguel Salinas, report Citizens Yrineo whose Government of with reference to their the State distrusted Council; given Opinion valuation for the reasons having Corpus they inspected Island been so advised together me, examining thoroughly pastures, its Christi nature, permanent that concerns waters more or all less advantages may enjoyed the benefits or comparing appraised parties, what had interested been fairly impartially expert appraisers with what the second * * *’ knew themselves. reports by incorporating detailed “And after into his decree de- appraisers, each the Island minute of said which described it, especially value, pasture, and tail more to its or lack of permanence supply; its water and assessed its value at fresh forty sitio, Judge pesos per concludes:
“ ‘Having present with reference concluded business Bachelor Don Nicolas Corpus denounced Island Balli and Christi Balli, I, Judge presiding nephew, Juan his Jose survey, place justice state that in and truth where official Santiago survey began opposite de without the Brazo mentioning any particular the reason that landmark for ensenada, already tract a the or island situated as of land is banco Santiago Bar, Corpus stated, Christi Brazo de between reason, Bar, Laguna For that and be- Madre sea. water, entirely have surrounded there cause said land any time; adjacent at but it land owners never been very possession its ancient and first settlers has ” * *’ * duly cited. those that have been who are BY GOVERNOR
FINAL ADJUDICATION 12, 1829, expediente, referred the the Governor March “On proceedings appraisal other new to the At- enlarged reported 17th: General, on March torney who “ *14 proceedings hereinbefore set forth in this in- ‘The Judicial (expediente) with reference to the denounce- dispatch structive Balli, the Nicolas Juan Jose Citizens lands ment of Matamoros, jurisdic- situated of the lands in residents having Santiago, concluded, been the Island as tion known deposit price (11) of eleven sitios and to now remains surveyed, demanding were re- (6) which caballerías six ceipt Forty be for the full amount at the rate of exhibited sitio, pesos per they appraised; bearing ($40.00) as were money applied mind that the to to the credit be City conformity of Matamoros in with what is set forth in the your Colonization Law of this State. When this is done Excellency may Attorney Applicants cause may designate land to be cited so that each of his clients place he his where wishes land to be. In view of their statement adjudicated it shall equal part ordered that the land shall be be to each designating parts belongs part which to one and which belongs ordering Judge presided to the other and who place possession to respective at the them in of their causing parts, permanent the boundaries to be marked with ” noticeable monuments.’ TREASURER’S OF ACKNOWLEDGMENT PAYMENT 21, 1829, “The Governor on March referred the above order to Treasurer, who, day, acknowledged on the same that: “(cid:127) paid there Treasury ‘On date has been into the Four Forty ($446.00) belongs Hundred and six Dollars that payment (11) large State mayor) of eleven (ganado sitos for cattle (6) and six caballerías of land denounced the Citi- jurisdiction zens and Juan Balli Nicolas Jose in the of the town Matamoros, duly appears foregoing in the instructive dis- patch (expediente) ; your consequently Excellency may resolve ” proper particular.’ what is action to take in this GOVERNOR’S OF ADJUDICATION TITLE day “And on the same the Governor decreed: “ price for the ‘The sitios caballerías of land denounced having Juan Nicolas and Jose Balli duly Citizens paid, Attorney at the same time Citizens for the owners having thereof stated he is unable state the amount of adjudicated to each land that should be because should have among agree themselves, as to this let this (expediente) in- dispatch returned to the Second structive Alcalde of Mata- may put Applicants moros, he Citizens possession so conformity expressed lands in said terms Fiscal; protection and for their let opinion the interested for the appeal to this Government title parties property, ” judicially certified.’ will be OF JUDICAL ACT POSSESSION growing expediente again “By time returned to passed Balli Matamoros, Nicolas had Padre reward, his *15 Longoria Capistran y and Macedonio had succeeded Casas Juan Judge. 15, 1829, judge as Second On the new decreed: December “ * * carry That in order to out the orders aforesaid Supreme Government of and of Fiscal of the Su- the State preme State, Court of Justice of the same let the Citizen Juan appear Jose Balli be to for himself and as heir of the de- cited Balli, ceased Priest all the heirs of the said Nicolas likewise Corpus Balli to Padre who are entitled to half of Island they given possession corresponding end that be * * *’ provided by formalities law. continued, day: in a “And later decree on the same “ ‘* * * appear I me and those are command to before who assisting me, might Balli so that he the Citizen Juan Jose given belonging possession part to him in the Island of Corpus; I heirs mentioned in the likewise command other being being me, preceding appear, Act known all well to personally present, purpose for I made known them the which summoned, answer- were to which the first above mentioned ; being ed on of illness he has suf- That forbidden account which long time, possible personally him take it was not for fered a possession land, mentioned, he would em- but that above gave Power-of-Attorney power in favor and to this effect he of, brother-in-law, Solis, to the Rafael end his Citizen possession, the half of the island he take should part belonged him, manner the other like but also he, Balli, as Execu- was entitled to tor. the Citizen Juan *’ * * delivery possession, certifying to the of Juridical “And Judge continued:
“ * discharge my obligation Consecutively faithful and in Santiago transported myself to the Brazo de to be I caused Attorney-in-fact, assisting Solis, my accompanied by Rafael witnesses, instrumental to-wit:- Citizens witnesses Garza; Cavazos, and Anastacio lade Louis Cavazos Juan Brazo, Corpus, I over to the Island being crossed said on standing parties, and mentioned accompanied the above possession (11) place in of the eleven proceeded to I said caballerías, (6) large of which the Island six cattle sitios being comprehended it, composed; within Corpus Christi name, place Boquilla or site known sa “La of this the Island Vista,” Devisadero,” “El Alta,” of Buena “Rancho de Loma Augustin,” Jose,” “La “El Paso de San Piedra de San Los Sauces Crocitas,” de and “San Juan las “Los del Palmerito” Enterrada Santiago de and Brazo of which Laurelitos,” “Carnestolendas” possession land the Citizen Rafael took Solis in the name of principal, Balli, part belong late, his Juan Jose Balli, Bachelor Attorney appears Micolas as better from said Power of * * * dispatch. which is attached to this instructive I, Judge, protect said protect state that I would and did him *16 possession it, in may the ejected from he which with- be being heard, oath, out first legally adjudicated against, under and required and that he survey; will never be to have a new which possession presence was taken in by of those aforementioned legiti- virtue of which he is and must be considered the true and mate owner conformnity and lord of the half of said land in application adjudication for said land and the of it made to him application the Governor virtue of said and payment aforesaid; being placed possession likewise in part of the land that as Executor of the aforesaid late Padre have, he, himself, Balli he should so for his heirs and suc- own, may sell, exchange convey according cessors as their and which, to may legally their will. All of in ap- order that it thus ”*’ * * pear, judicial I entered of record aas act. JUDICIAL CONCLUSION OF PROCEEDINGS Matamoros, 25, 1829, “And at December he concluded the proceedings by certifying that: “ 1 * * * Having complied Supreme with the decree of His Excellency, State, ultimo, Governor dated March 21 having placed Balli, and the Citizen Juan for himself and for Balli, Deceased, his uncle legal Don pos Nicolas in actual and Corpus Christi; session of the in lands the Island of after hav ing receipt exhibited to me the of the Minister of the General showing legal payment Treasurer of this State had been them; ordered, presents each of have and these do hereby order, that, proceedings having these concluded terminated, dispatch protocolized the matter in this instructive my charge, party, Archives under the interested who possession, apply has taken his should to this Court himself and uncle, Balli, legal Don deceased Nicolas for the certificate Supreme decree, may referred the said so that with it he appear Supreme before State Government obtain the evi legal property, quiet of his title to said are in dence since ” * * *’ possession respective peaceful of their lands. “Legal of Title” or “Final Certificate Concession” from which, concluding governor Tamaulipas, for in the decree judicially apply, expediente the Ballis were authorized to seek to Those adverse to account is not evidence. (cid:127) Bourland, way: in this Miller and nonproduction for its investigate appointed commissioners titles to land situated Grande, under between Nueces Rio the act of Feb- 8, 1850, ruary report final Balli certified their that Nicolas proper from au- and Juan Jose Balli had “obtained title original They papers thorities.” also certified that all of the County presented titles connected with the claims Cameron November, 1850, lost “in the wreck were them in unfortunate passage while her the Brazo of the streamer Anson Santiago.” protocol an a final certificate such became Victoria, capital, records at state archive destroyed by troops in were the French claiming adversely Those State offered in evidence Balli last will and testament of the Padre Nicolas dated August 6, 1828, municipality an of Mata- which is archive of ; 5, 1909, copy November moros certified recorded County, Texas, county pro- clerk of office of the Cameron vides follows: agostadero (pasture *17 I declare as mine
“Seventeenth: Santiago, land) leagues composed of eleven which is Island land; surveyed (sitios) and I have and which I am had govern- allotted, present adjusting and at with the to there- so as obtain the titles ment to; my agostadero in half with and said should be divided costs, Balli, pays a nephew, provided half Juan that he my I so found in account book. of which will be memorandum (be known). may appear declare “Eighteenth: (labor) as mine a farm for the I declare small agostadero breeding in and mules and I have said of horses Santiago given I term which have halves for the Island Balli, my accompliance years nephew, Juan Jose of three signed and this end was made document which to between with a among my papers. us, found I so declare and which will be may appear.
<<* [*] [*] [*] my my nephews heirs and “Twenty-seventh: I declare as nieces Balli, Balli, Balli, Rosa Maria Maria Juan Jose Josefa Maria Guadalupe Balli, Concepcion Balli, Maria the children of and they may among stirpes, Balli, divide them- per Francisco selves wealth, may enjoy equal parts, the same in my entire God; that with blessing and I such must order with Balli, father, Maria that when he Jose dies their maintain decency.” bury him they must Balli, by 1830, January Juan Jose Mexican notarial On Matamoros, act subsequently on archived October county recorded in the office of the clerk Cameron County, conveyed Santiago original Morales his one-half of Island, together league Padre with one-half more that he had acquired by uncle, inheritance from his the Priest Nicolas Balli. kin, At the same person through time his close either in an Attorney fact, appeared notary agreed before the Santiago might portion Morales take his lands in the northern Island, while the priest other devisees of the should take respective their undivided interests the remainder or southern one-half of the Island. There inis evidence the will of a niece of Padre Nicolas
Balli, May 13, 1833, of date archived in Matamoros and recorded in 1909 in the county office of the County, clerk of Cameron which recites: bequeath my godchildren I nephews
“Seventh: Antonio, Guadalupe, Maria, son of Rosa, and Jose son of the share that belong may pasture to me in the land of the Island.” Santiago Morales, February executed a document mortgage in the nature of a under the Mexican laws then in whereby mortgaged effect he half southern of the lands on acquired Padre Island him from Juan Jose Balli to Maria payment de los Dolores $1111.32, Garcia secure the Mexi- money. can Santiago Morales, July 17, 1845, by on subsequently act, Mexican notarial copy of which was recorded in the office of the county County, conveyed clerk of Cameron to Jose Maria Tovar the north half of the lands acquired by Padre Island Balli. Morales from Juan Jose *18 Guadalupe conveyed
Rosa Maria Balli and Maria Balli their own share in three Grisante Nicolas caballerías of land through by them Padre Island derived on uncle, inheritance from their Balli. the Priest Nicolas 25, 1846,
Refugio Solis, September conveyed on her interest Grisante, description with the to Nicolas same in the island as deed next amove mentioned. in the contained Solis, guardian, conveyed, Balli de as del Carmen Maria to Nicolas Grisante interest of her three October children. minor guardian Balli, children, the father his Francisco interests, their to whom priest
conveyed Grisante to Nicolas of Padre of one-half Island as the one-seventh chil- devised had dren of said Balli. Francisco Jose Maria Tovar and Nicolas Grisante, 31, 1847, on December filed for record office of county County compulsa clerk of Nueces testimonio of the proceedings in behalf of Nicolas and Juan Balli re- Jose lating to Padre Island. report Miller, A of the commissioners Bourland and in their legislature report final to the under their file No. for Cameron County, recites: apply
“Nicolas Grisante and Jose Maria Tovar for 11 leagues pasture granted originally land called ‘Padre Island’ Spanish subsequently Government to one Nicolas Balli nephew confirmed to him and his Juan Jose Balli the Mexican proved occupation Authorities. Witnesses of said tract of original grantee nephew said fifty and his for the last years; they kept requisite thereon the number of stock leagues, having entitle them to the never 11*4 claimants, They having adverse &c. obtained a title from the proper upon peaceably authorities resided the land for a years, leagues number of we recommend for confirmation 11 >4 only assigns original grantee, to the heirs or for we feel confident that the island called Padre Island or em- contains thirty leagues braces over land. It is therefore to be under- leagues stood that we recommended of said Island. *4 testimony For County.” this case File see No. 37 Cameron Said commissioners recommended for confirmation “11 ¿4 leagues only assigns original grantee, to their heirs or for we feel confident the island called ‘Padre Island’ contains or report embraces over 30 land.” The final com- the. missioners, accompanying papers evidence, title and other governor legislature was submitted to the as the act of the tq required, legislature and was him transmitted report for its action on each individual claim. This was referred legislature by the to a senate, select committee of the house and which re-examined each claim and provided drew a bill which grants for confirmation of each of and recommended Miller Bourland, grants and for confirmation of a number of commissioners had failed and refused to recommend. With re- gard grants thus recommended joint for confirmation the said: committee
“* * * making report, In their the Committee have been com- following pelled questions: to decide for themselves the Was original grant good or title founded in there an faith: Was it so, and if were its perfect, subsequently conditions complied *19 imperfect, perfectable? was it party Has the claiming, with: —If same, except possess continued for applicant to abandon when forced good etc.) (Such Indians, Did the cause? as incursion jacals, improvements, or fixed such as erect houses fences, etc.?
“ [*] * * * where committee have been able to decide each affirmatively, reported the claim questions these have mind, favorably. Therefore, bearing 8th in the law endeavoring February, constituting board; carry said believing, moreover, spirit; into letter effect in and doing citizens, justice her State will sheer to thousands of be whom, heretofore, around the arm unable to cast she has been protection, report accompanying confirm cer- we bill to forth, urgently tain passage.” its titles therein set recommend legislature adopted of Texas recommended bill thus approved February 10, Texas, as an act Laws of 1852. Gammel’s 8, p. 941; Digest Texas, Vol. 734, p. Paschal’s the Laws Vol. provided: Art. The act hereby right relinquishes
“That all of Texas her following original and interest in the described lands to * * * grantees thereof, legal assigns, their heirs and towit: * * County Cameron *. “(12) Balli Nicolas Jose Balli Juan eleven a half * *” * leagues called “Padre Island’: adopted The act thus was identical with the bill recommended joint committee, proviso the select with a in but added section 5 of the act as follows: * * * nothing “Section 5. Provided that act shall rights relinquish
so construed toas state territory the Island or lakes salt situated embraced in this act.” Tovar, previously registered The will of Jose Maria in the Matamoros, Tamaulipas, February
archives of probate county County, Texas, offered for court of Nueces proceedings subsequent his interest Padre Island which described, agreement fully was, by had inventoried and an approved county County, partitioned court of Nueces among By partition his heirs devisees. the terms of this one- league half at north end of acres Padre Island was Tovar, apart Praejedes set Tovar and Calixto children of said Tovar, and Jose Maria the remainder his interest north *20 218
half 11,785 of Padre Island described the order sale as all, having acres in surveyed, platted first been and subdivided each, into 24 lots of except 1, 485 acres Lot No. which contained acres, by 640 proper was sold the administrators under au- thority county County, Texas, of the pay court of Nueces the by costs of the administration and debts due the estate. Said pursuant lots Corpus were sold to the order of the at court public 2, 1859, Christi at auction November which sales were duly by county County. confirmed the court of Nueces 10, 1852, February From and after the act of confirmation of maps Padre Island was shown and delineated as titled land on by grantees the General Land Office reference to the names of and the act of confirmation as follows: “(1) Map County portions of the and of Nueces of the ad- counties, joining showing locality, the dates and claimants of grants by Spain several the Governments of and Mexi- co, compiled surveys by Blucher, from actual Felix A. District Surveyor, 20, November 1859.
“(2) Map County, of Nueces 1877.
“(3) Map County May, of Nueces Land General Office “(4) Map County, compiled by of Cameron and drawn A. B. Langermann, Austin, February, General Land 1880.” Office judgment
The trial court rendered adverse claimants possession to the State for the title and of Padre Island containing 135,213 described same as acres of land as the during surveyed by Boyles island was for the State J. Stuart year appealed 1941. The cause was to the Fourth Court Civil Appeals judgment and the of the trial court of State things County (2d) in all affirmed. 173 522- Nueces S. W. was granted import- 544. This court writ of error because of the questions ance of involved. claimants, having admittedly contends that State survey plats thereof and a return of
failed have Office, such and field notes to the Land under General 14 of the their claim Section Article Constitution of provided “shall It was Section of the be forever barred.” 10, 1852, February in which the Confirmation Act General respondents’ predecessors relinquished in title unto the Island, surveyed the same should to Padre title Land of the field notes thereof General Office a return made, required authorized and that Commissioner maps plotted of his office and issue the same to have patents therefor. 1876, provides:
Section Article Constitution residing “Persons Rio between the Nueces River owning grants from Grande for lands which emanated government Mexico, grants Spain or have been recognized Legislature and validated the State acts approved February 1852, August 15, acts, 1870, and other prevented "complying require- and who have country, ments of said acts conditions unsettled day January, complete shall be allowed until the first *21 surveys plots their field *22 writing Constitution, in framers of the presumed that the mind; in thus the section, may presumed to have had them grant; only applies to only applies to a valid Constitution government emanating Spain grants of from the the owners recognized expressly and validated had Mexico which been prevented “who have been by is limited to owners It the State. (validating) requirements acts complying of said with the from country.” apply It to does by of the unsettled condition Mexico, as, example, that Spain con- grants from all 356, 141, Hills, to 2 but 67 Texas S. W. in v. strued Clark Tamauli- the Mexican state of formal limits of those within for the placed of 1876 perhaps in the Constitution pas. was It grants specified relieving class of the purpose owners Constitution, 4 of Article 13 of the effects of Section by adoption of the Constitution after the annulled which was Railway Company v. in Texas-Mexican Supreme of Texas Court opinion 370, that the are of Locke, 12 S. We 74 Texas W. any remedy apply not in case special did reason for this Only grants needed grant with uncertain boundaries question. in made, resurveys, when have not been surveys. additional Such state. See Cor- by appellate courts of this though important 171, 95; App. 94 State State, S. W. rigan 42 Texas Civ. v. State, 41 Texas 101; v. The Civ. Corrigan, 94 W. Sullivan S. 416, Texas, 52 L. 645; 207 U. S. 89, App., Sullivan 95 S. W.
221 74, again Hills, Sup. quote Ed. 28 Ct. 215. from Clark v. 67 We 141, Texas 2 S. 356:W. government grant
“In where the of a former is con- cases firmed, survey important only when the has not becomes previously segregate surveyed, adjoining as to it from so territory, vague description or when the of the land is so as to require survey designate and fix cer- its boundaries with tainty.” suit, already pointed
The land in out as we have in our state- case, (or ment of the in- as follows: “The barras described lets) Santiago Christi, Laguna Corpus of the Brazo de necessary Madre sea.” identify and the No was bound- plat or aries to enable the Land Commissioner them on his maps. shows, platted As the evidence was so on the maps Land Office Cameron Nueces Counties before both prescribed and after the time limit 8 of Article 14 Section surveys Constitution 1876. Failure to make and file required by field Relinquish- notes as the second section of the February 10, 1852, ment Act of 8 Section of Article 14 slightest of the Constitution of has never 1876 been accorded the importance political either authorities of Corrigan, 101; the courts. State v. See 94 W. S. Schaeffer v. Berry, 705; Haynes State, 62 Texas v. The opinion, suggested S. W. 915. are also as was We Appeals, quoted Honorable Court of Civil section of the to construe the Constitution accordance the contentions necessarily would ques- raise serious constitutional light paragraph tions. In the Article of the Constitu- tion pro- of the United and certain States other constitutional visions, including obliga- prohibiting impairment those contract, tions of equal protection the denial to citizen laws, taking private property due without process and, Bradley of law remarked Mr. Justice Ross, 809, Sup. Gonzales v. U. S. L. Ed. 705: Ct. good “A man whose title was when the Constitution *23 adopted, was whether his muniments of title were on record not, by ipse deprived simple could not be of it a dixit of the Con- stitution, legislative any by more a than act.” rule, elementary
It an require too well established to the authorities, citation of that are not in forfeitures favored the will, possible, law. The if courts avoid them. It is not unrea an construction, consequences sonable to avoid the of order a forfeiture, grants construe to the section to that mean the owners of territory the
within limited described “shall be forever receiving from patent barred” a from of Texas if the the State surveys, etc., by are not filed with the the Land Commissioner specified, towit, 1, time January patent the The denial of grant an to owner of an earlier Texas valid the of would State taking a of property process without due of law. This is grant obvious when we consider that holder a valid the of government prior a question defend his title can where called grant. all prior the But evidence he has of his valid if the grant government of a holder valid a from former desired to title, have better evidence of his pliance it a could be obtained com- requirements quoted with the of the section Con- expenses required stitution. Thus it is to seen that for the com- ply requirements with the of the the claimant of a Constitution grant given was title. This valid a better evidence of his reciprocal government, is, in its in that the nature State Texas, give patent would of a title in re- a its best evidence grant government giving turn for the a owner of the to the survey, maps, plats, correct The considerations of both en- etc. grant ured the holder In of a valid Texas. language opinion employed our it would to the and to be violence every rule of hold that construction to the framers Con- grant a to land stitution meant that the holder of valid would ownership land have the forfeit his failure to same surveyed plat *24 emanating territory land in the former sover- ceded the eign, sovereign by was treaty the the which the terms of new respect. bound to Bourland and Miller were the commissioners investigation appointed of act. to make the the terms under They region affected, visited the held the coun- stated sessions ty counties, ap- of seats each of its and called for received plications legislative legitimate grants for of all confirmation protection treaty, perfect per- to entitled the the or of whether grants. proof adjudication papers fectable The title and other possession by presented by examined were the owners and report commissioners. The commissioners a detailed legis- application on each with their own recommendation to the perfect lature a as whether the confirmed as claim should be grant. or presented nerfectable In a number of cases com- way. qualified missioner’s re- recommendation in some was port commissioners, accompanying papers title evidence, other by governor was as the submitted them required governor legis- act by and was transmitted report lature for its action on each individual claim. legislature commission was referred to a select commit- senate, tee of house and which re-examined each claim for con- provide firmation qualified its own merits drew a bill to un- for confirmation of each recommended Miller arid grants BouT’hnd and for the confirmation aof number commissioners had failed or refused to recommend. This bill legislature was change except enacted without for proviso legislation inclusion here In discussed. earlier period legislative adopting proviso intent is made clearly appear. congress to more On December Republic joint authorizing Texas enacted resolution president $20,000.00, issuing scrip borrow land therefor. The third section of that resolution reads: “ * * * belonging Republic be, that all Islands to this shall hereby use, except
are
reserved
the Government
the Presi
specially by Congress
dent
Digest,
authorized
Hartley’s
to sell them.”
quoted
Delesdenier,
Art.
as
case
State v.
loc. cit.
8, 1837,
adopted
On
an
June
act for the relief of James
(Hartley’s Digest,
1810),
object
Erwin and others
Art.
discharge
government
debt contracted
scrip.
means of the
proviso:
sale of
This act contained the
“Provided,
granted by
that no lands
the Government shall be
gold
springs,
silver, copper
lead,
located on salt
or
or
or other
Quotation
minerals,
Republic.”
Island of the
from State
Delesdenier,
Section 2 of the of decision, act ing the read: law the rule of common *25 of prior to first Republic in the
“That all laws in force September, 1836, and Pro- (except the laws of the Consultation force, except of in the in lands visonal now and Government Texas, as relate to the State of and and laws also such Coahuila lakes, lands, salt licks also of reservation of islands and and every description, made springs, and salt and minerals mines of be, are here- by Government) and the same the and General State by repealed.” early Republic provisions of laws of the have
These these by fol- Supreme in the the Court been construed lowing discussed 76; Delesdenier, v. 7 Texas Roberts cases: The State v. Terrell, Robison, 733; 105 Texas 101 Texas 110 S. W. Cox 426, 150 S. W. existed, First, public policy
Two
that land certificates
lines of
ordinary
located
issued under the
land laws must
be
belonging
state,
to
to
such
are
be
islands
that
lands
the
second,
only by special law;
shall
title minerals
sold
not
that
ordinary
express
designation by
pass
of
words
without
being*
grant.
the
policies
founded on
Both
were considered as
sovereign
express
policy
preceding
of
and the
and laws
the
legislature
in
policies
that
the
of Texas intended
continue
in
con-
final clause of the
effect. The reservation contained
the
1852, undoubtedly
the
February
refers to
firmation act of
regards
lakes; policies
policies
as
islands and salt
stated
both
Republic
proclaimed by
so
the acts
the
which had been
often
recently
re-examined
from
on and
have
so
been
existing policies by
Deles-
Supreme
in the
declared
the
Court
legislature believed,
certainly
did be-
denier
lieve,
If the
as
case.
the
public policy
was to
the
of the state
continue
that
originated
rights
public
lands which had
reservation of
lost,
government
meanwhile
and had not
under the former
purpose
final
easy
the intent and
it is
to understand
therefore,
legislature to
the
proviso,
was intended
The
clause.
treaty
Guadalupe
grants
pursuant
protect
as made
Hidalgo
except
quitclaim
relinquishment
and to
sovereignty
rights
a
vir-
had as
successor
those
government.
legislature
former
ture
reservation
verbiage
congress
using
that used
the same
as
did this
adopting
of 1840
law.
Republic in the Act
common
only explanation
public
is
with the
consistent
This
legislature
If it
so often declared.
does not ac-
policy the
has
legislature
adopting
proviso,
action of the
count for the
language
repugnance
a case of a
between
we
then
have
proviso
express separate
of Padre Is-
confirmation
legislative pur-
presumed
land. It cannot
there was a
recognize
grant
pose
an
Island
confirm the Padre
and then with-
individual
in the first section of
act
recognition through
general exception
draw that
last
statutory
elementary
construction
section of the act. An
rule of
applicable
general
provision
in such case is
where a
law,
City
special provision
prevail. Lufkin
same
must
Galveston,
437;
Cahill,
City of
99 Texas
Austin v.
S. W.
S. W. 552.
through
point
State contends
its fourth
error that
holding
proceedings
the lower courts erred in
had
government
1827-1830 with the former
Ballis with
vested the
right
either title
protected
or the
secure title
the character
treaty
Hidalgo.
Guadalupe
primar
This contention is
*26
ily grounded upon the
fact
the land in suit
situated with
is
leagues
in ten
of the sea and
the
under
fourth article of the Gen
1824,
eral Law
Republic
of Colonization of the
of Mexico of
previous
requires
approbation
supreme
which
execu
power.
upon
tive
Davis,
State relies
cases
Edwards v.
321; Republic
Thorn,
3
499,
Texas
subsequent
v.
3 Texas
following,
League
Egery,
cases
v.
24
264
L.
How.
16
Ed.
Egery,
267,
656,
655 and Foote v.
24 How.
L.
16 Ed.
and Christie
Pridgeon,
204,
v.
lowing to facts show that a final certificate was issued: that on January 19, 1830, conveyed Santiago Juan Jose Balli Morales original Island, together his league one-half of Padre with one-half acquired by than more he had uncle, inheritance from his priest 20, 1830, Santiago Nicolas Balli. On March Morales appeared judge ayuntamiento before the first of Mata- pleaded moros and gentle- that he had advised been “two grant men from Victoria” that from the state would not be given effect and that money he did not wish to involve his dur- ing years might the one or required two be to clear the title, him therefore he desired that Balli should return to pesos paid seven hundred purchase he had money, with the understanding that when Balli had cleared his title the sale to should, wished, given if Morales he so effect. Balli in effect answered that he gentle- was “not in accord with the two Victoria,” litigate men from but rather than with Morales he purchase money would return the if Morales desired. February 7, 1842, mortgaged Morales to Dolores Garcia the south half 226 Balli. On acquired
his lands on Padre
July 17, 1842,
Juan Jose
Island
from
conveyed
lands
he
north
of his said
one-half
1848, Morales,
September 4,
Maria
acknowl-
Jose
Tovar. On
mortgage
edging nonpayment
the debt secured
Garcia
terms, conveyed
compliance
half of
and in
with its
the south
Dolores,
Garcia,
the de-
his said lands to
son and heir of
Jesus
mortgagee.
proceedings
may
ceased
It
from these
be inferred
This
that Balli
his
of Morales.
cleared
title
the satisfaction
by taking
final
of title
would have
done
out the
certificate
been
judicially
apply. In
for
he
the recom-
authorized to
mendation made Miller and Bourland
is said:
(Nicolas
having
“They
Balli)
a title
obtained
Juan Jose
authorities,
upon
peaceably
proper
and resided
years,
11)4
for a
for
number of
we recommend
confirmation
grantees.”
assigns
original
to the heirs or
frequently
Final
the state
certificates
title were
issued
pro-
apart
expediente
Tamaulipas
from the
authorities
320;
ceedings
grant.
Bustamente,
47 Texas
v.
State
912; Kenedy
Haynes
State,
Pasture
v.
S. W.
State,
v.
683. The state archives of
Co.
111 Texas
231 S. W.
destroyed by
troops
in Victoria
were
French
912;
Haynes
State,
Kenedy
in 1864.
100 Texas
W.
v.
S.
683;
Company
State,
Pasture
v.
111 Texas
231 S. W.
Sais,
has
held in this state
v.
“ * * imperfect title extent an to the land claimed it is to that (It juridical possession act of and contained no final is recited no governor state.) from of of title the concession certificate right applicant, shows, however, adjudicated of the and It land, setting boundaries, apart of the with defined and extent, money at locality and which it and its was paid treasury (¡¡>30) into law of valued under the State, legality proceedings, and regularity with the of the treasury, attorney completion, by direction for their * ** by sanctioned the order of the Governor.
“* ** case, appears far as the record in this So right grantee, land, prop- party been as a entitled to had erly established, surveyed, and the land had selected and been boundaries, December, 1836, previous with defined to the 19th was, therefore, right could, reasonably and it would, such change gov- protected,
have been had there not been a ernment.” case, cases, 320, companion
In the Bustamente 47 Texas this court held that “final concessions” or of title certificates by governor 1848, Tamaulipas February 2, issued illegal were eight and void and each claimants situated so was re- brought by fused confirmation in suits the owners under the Act August 15, brought by 1870. Suits later the state to recover grants these Haynes State, same were decided this court in say: 100 S. 912.W. The court judge “The opinion learned who wrote the exhaustive said, Appeals substance, Court Civil the facts found justify grant presumption court would that a had Tamaulipas, the Governor of if it were not shown testimony the Governor of which was had issued void, Zapata, a final title to he because had not the power granted. to do issuing so at the time that it was title, authority, the final right without could not affect the existed, upon which the unauthorized act was based. (State Bustamente, 320). Therefore, discarding 47 Texas Canales, Tamaulipas, title issued year Governor of in the existing which, justi- we have the facts still if sufficient to fy presumption grant, of a must be sufficient to establish a right grant. If, therefore, upon evidence introduced was, Zapata the trial shows that Antonio day on the 19th December, issued, entitled to have a ought the State controversy, not to recover the land because such a title would protected by treaty Hidalgo.” Guadalupe case, And Gallardo 166 S. W. say: court *28 “* * * necessary re-open we do not deem it question the urged by the able counsel for property the State as to whether rights territory within sovereignty the over which the of Texas extended, protection treaty were within the was of the of Guada- Hidalgo. rights lupe in treaty That relation to such that has the
228 by Texas, repeatedly affirmed of law in has force Hills, 307; 67 Texas Sais, v. v. Clark court. State 47 141; Haynes State, further- We S. W. regard under these decisions in more it as established this State legislation, a title light and in the the and others of State’s Tamaulipas original Mexican of to lands within the State good against as the present that was boundaries of Texas government the date of the Act on December Mexican defining Congress Republic the boundaries of Texas of the so as to include that treaty of protection territory, of the is within the recognition in the courts.” and entitled to prior approbation respect presumption With government, supreme further said: Mexican it was “ * ** urges invalidity under the of that sale said, ground, want upon the it is Mexican law Tamaulipas it in authority to order in ab- the Governor by previous approval the su- sence of affirmative evidence of upon provisions preme government. is based This contention 3, 1836, or the Mexi- enacted decreed law of October regulations assembly President decreed can and certain Regulation connection, particularly No. ad interim its government depart- of the effect: the attributes to this ‘Until Treasury, are declared in what relates to mental boards 7, 1857), April (which said Governors was not done until law (bienes) (fincas) property nor lands make no sale of shall expenses departments, extraordinary nor said contracts ” government.’ supreme previous approval of the without the The court continues: ordering governor question, “In sale capacity purported authority. His and under
acted his official recog- power, to him the exercise of denied but act was but previous regulation quoted. approval nized the government true, necessary, Supreme is- to its exercise was regulation. question But the provisions under long is, lapse presumed after this it not be here arises should knowledge light years, our the conditions of' country, previous approval that such then obtained given? so, government supreme think sale We public principles in relation of the acts of under established authority, capacity purported under in their official officers legitimate usurped authority presumed. rather to which than 678; Peralta, Ed., L. Strother 19 How. United States v. v. Jarvis, 1137; Ry. Lucas, Pet., Ed., Texas Mex. 410 9 L. Co. Texas, 541, W., 210.” 7 S. *29 ruling Boyles, The same was made in the case of Barrow v. (2d) 61 S. W. assigned why no. second reason the title right Tamaulipas pro- to title was in the the vested Ballis under that, ceedings governing is because it is claimed the council grant. Tamaulipas approve did application not Ballis’ the for. a. It expediente (consejo) is true that in the the council indicated that it was dissatisfied the with what had been done in instructed dispatch because some of the contradictions contained it. However, the council stated: agreeable may, your “It Excellency, permit if it is to the re- maining requirements of the law to taken until this matter be is concluded.”
Therefore,. very the document which the State claims to be disapproval a that indicates it was the attitude the council agreeable might parties, governor,: interested if to comply requirements with all pointed of the law out general attorney (fiscal) might and that the matter concluded. proceedings The State further contends that the as disclosed expediente pursuant were not had to Article 26 of De Tamaulipas
cree No. 42 of the Colonization date Statute of 15, 1826, December petition the Ballis their did file proper forty with the days authorities within the term of from publication the date of the of the law and that the island con granted tained more land than was allowed to be said under laws. Section 26 of the Colonization Law of of De 15, 1826, provides: cember
“Designators government of land which time of the ancient perfect adjudication present did not their to shall themselves respective according authorities continue its course to the effecting thereof, forty days state same within the term publication law, contrary from date of the of this and on the open designation lands said shall be considered as vacant.” respondents proof contrary appears contend that to the Diego petition governor de face Leon’s expediente of December which the as archived was begun. petition presented shows that he had theretofore Said incomplete governor judicial an testimonio of the the proceedings act and Santiago to Balli of “the Island of consisting Corpus Bar and terminates at Christi land”; Reynosa that he had searched achives at found, protocol had not proceedings, for the such been may have forwarded from which he inferred that it government year the Count seat of 1800 when about copy of the governor; solicited new that he Sierra Gorda was expediente proceedings form of in the event not, petition be con- that his and if archives of Victoria *30 and Miller sidered new island. The a denuncio of the same 1850, commission, in found: Brownsville Bourland which sat at applied for (a) Tovar Maria and Jose Nicolas Grisante Island, originally pasture land called Padre 11^2 Balli, granted and government Nicolas Spanish the to one Mexi- nephew Balli the Jose confirmed to him and can Juan his occupation authorities; proved (b) the that witnesses grantee original nephew his said tract of land the said fifty years. for the last the Padre
Under this record it cannot be doubted designator Island “in Balli of the land of Padre Nicolas was a presented government” that he him the the nor time of ancient authority respective its course accord self to ing continue to of the coloniza Tamaulipas is that the date law. It true Diego petition being 15, 1826, tion de Leon’s law December 11, 1827, period times is more December between these than recognized court, forty but, days, this as has been law, forty-day period not but from did run from the date Robertson, publication. its In date of Houston cit. it is loc. said: governments, it was an
“But under the former undoubted binding obligation principle until after laws were of no that the * * * duly .they promulgated. These decrees were trans- were authorities, published in them their mitted to the inferior respective jurisdictions.” Quoting again Bradley Ross, from Mr. Justice Gonzales 809, Sup. Ed. 30 L. Ct. U. S. any did not take effect in “But laws the Mexican states there; country, promulgated
part
were
and as
until
Kinney,
present county
situated
Dolores was
about
Monclova,
probably much
than that as
more
200 miles
communication,
ran, and
in that
as the means
roads then
dilatory,
probable
region
were difficult
at that time
promulgated
prior
at
was
Dolores
that the Act of March
April.”
18th
interval
expediente
us
that the
shows
between the
before
promulgation
a
and its
at Mata-
enactment of decree at Victoria
moros, according
above,
reasoning
quoted
same
as
would
petition
at least
fact that de Leon’s
several weeks. The
11, 1827,
dated
indicative
the fact that on
December
is not
presented
Tamaulipas
same date Balli
himself to
authori-
fact,
petition
perfect
ties
order to
title.
his
As matter of
event,
prior
attests that
done
In
date.
was.
designator
whether or not
of land in the time
the ancient
government presented
proper
himself
authorities
before
timely
Tamaulipas
de-
was for the officials of the State of
where,
here,
governor,
January 2, 1828,
cide and
doing
proceedings,
ordered
continuance of the
his
action
so
years.
is conclusive after more than a hundred
Hardiman v.
Herbert,
The State also contends that under colonization law Tamaulipas adjudication the State of an could not be made to 125,000,000 (5 square leagues) an amount of more than varas and that the is therefore void this case. Article 25 law, among things, colonization other limited *31 adjudication 125,000,000 an to of square the amount varas. According grant to the official of the island the leagues, state two Ballis was 11.15 amounting leagues. to an excess 1.15 31 of the Section coloniza provided grants tion adjudi law that “more than two cannot be cated to one and this individual should the incz*easednumber of necessity. his herd or demand it flocks For violation in these cases the ownership State shall recover the thereof.” Con struing together therefore, appears, these articles it power grants officials the state had the to make two of five or, individuals, each to one individual case of two twenty leagues legally granted. could It is definite from the testimonio that Nicolas Balli asserted a claim under the ancient government. provided by The law 26: Article
“Designators govern- of lands which in time the ancient perfect adjudication ment did not to present their shall themselves respective authority according to continue its course to affecting thereof, forty state the same within the term of days from publication law, the date of the of this on the contrary open designation said lands shall be considered to as vacant.” quantitive There was no limitation of which we are aware government.
under the king’s ancient The vacant domain was the special perogative. Milmo, 1, 21, Sheldon v. 36 S. W. 413, 419, February (3 Acts of 941, 947) Gammel’s Laws legislature where the confirmed title to the San Juan de Carici-
tas,
Spanish grant
County,
said
con-
a
situated in Cameron
leagues.
opinion
of-
tain
We are of the
where
106%
governor,
mem-
Tamaulipas,
ficials
such as
general
fiscal,
attorney
did not
bers of the council and the
or
granted
Ballis,
any objection
make
to the amount
being
grant
with law
considered such
accordance
upon
contrary
the oft
not
thereto.
This conclusion
based
expressed
governments
pre-
rule that
must be
officers
former
scope
powers
sumed to have
within
of their
unless
acted
contrary
Garza,
appears.
presump-
Jones
“The object: gress, for their shall have provide independence, and national To sustain “1. security exterior of the nation in and its preservation
relations. States, peace Union of the and preserve Federal
“2. To in Conferedation. order the interior public and among independent of the States them- To maintain “3. according selves, government respects so far as their Constitutive Act and this Constitution. obligations
“4. and proportional equality To sustain the of rights possess point in law.” States of
The constitutive act or the constitution made no declaration ownership public as to the of lands in states. the several Texas, State in of of Coahuila and its constitution March right ownership declared that both and full of administra- disposition public tion and vested within its borders were (cid:127)in the state. In Article it declared: subjects relating “That in all Confederacy to the Mexican delegates right power general congress its to the same; belongs government in all that but to the internal State, liberty, administration said independence retains its sovereignty.”
In Article 15 it declared that: “* * * property all kinds vacant within its limits and all legal property intestate belong without successor shall State.” provided congress In Article 97 it is state power proper
shall have to “enact what is for the administra- tion, preservation and property alienation of the of the state.” Fisk, It was observed Chambers v. loc. cit. pp. 526 and that: general government, recognizing “The the State of Coahuila Texas, organized constitution, as under its conceded the right administration, effectually of internal though as independent had sovereignties, states by first free and and had agreements concessions, joint gov- formed the Federal * * * ernment. “ * ** open, express right Here is an claim of to the vacant state, power disposition. domain provisions with the full These of the constitution the state are annulled or * * general any way by government, controverted Hemphill, referring Justice Mr. Chief to the General Coloni- August 18, 1824, said, zation Law Mexico in the case of Thorn, Texas, 506: Republic v. however, pretense, part was no “There gov- federal *33 lying agency, lands could, by ernment, her own colonize that she from, and state, previous purchase without of a the limits within * * * property of, authorities. the state consequent assent ** acknowledged in the state virtually to be is soil refusal of recognized in the court view was same Palacios, 150 W. S. in the case a writ of error general congress upon by the limitation made restriction or No any public within domain to alienate power of the states given unless effect be free will could at their own their borders the at- to consented to the have particular can be shown state congress, general tempted or restriction limitation August 18, 1824, (Sayles’ Mexico of Law of in the Colonization congress lays 40). a scheme Laws, down Early The federal Art. Republic. undertakes to colonize It of colonization within Republic, conformably territories of thereto the regulations general rules and provided in the afterwards Laws, 41). enjoined Early 21, (Sayles’ Art. It November they should, legislature states that upon of the several regulations laws or for their possible, make colonization soon as things conforming states, in all to themselves respective regulations act, general and the constitution constitutive provisions law. This decree contains several in the established right dispose public limiting their the several states these, Article is a One limita- lands their borders. within granted may quantity of land that be an indiviual. on the tion beyond power the federal was held be after limitation This Fisk, organization of the states case of Chambers full merely recommendatory and to on the Texas be state government. limitation contained Article Another reading: Leagues. cannot and Coast coloniza- “4.—Border —There leagues twenty comprehended any lands within of the limits
tion nation, foreign coasts, ten nor within with- of out the general approbation supreme previous executive power.” congress general possessed Undoubtedly power entry foreigners prohibit Mexico,
permit, limit or into designate they might in which the localities and to reside while foreign This status continued. marked the their constitutional power public organ- over the of the federal lands in limits government power the federal states. ized was of course regard to the situated lands within unlimited the territories. enacted of Coahuila Texas three The State different laws on disposition subject of colonization public domain, Decree Colonization viz: No. Law of March
235
190, providing
47) ;
Laws,
No.
(Sayles’ Early
Art.
Decree
1825
Early
28,
(Sayles’
land, April
1832
of
the settlement
vacant
of
Laws,
;
272, providing for the sale
58)
Art.
and Decree No.
66).
26,
(Sayles’, Art.
These
public
March
lands at auction
in the cases
by
Supreme Court
decrees were examined in 1848
Davis,
241,
McQueen’s Heirs,
Edwards v.
of
Goode
two
321,
Thorn,
The first
Republic
laws Colonization Law of Tamau- 1826, lipas 15, Early Laws, (Sayles’ 1, p. December Vol. general 132) 17, Law of Colonization November (Sayles’ Early Laws, 1, p. 138). 16, 24, 1825, Decree No. the Colonization Law of March Texas, provided
Coahuila and in Article 7 as follows: Leagues. “Art. 7.—Border and Coast executive take shall —The leagues twenty bordering care within frontier on the United leagues line and States ten litteral coast of the Gulf Mexico, States, within the limits of the no other settlements shall be made approbation than such shall meet the Union, executive of petitions whom all future on the sub- ject, accompanied by corresponding report, shall be trans- mitted.” Thus application the consent of the state to the within the Law,
limits Article General plainly Colonization ex- pressed. The Coahuila and Texas here undertakes and prevent any commands its executive to whatever, settlement foreigners, whether Mexicans or and to issue no title to such property within the restricted area unless and until the set- application tler’s for title shall have been submitted with the proceedings thereon to the executive of the ap- union and his proval had approval thereon. It was after such the su- preme lawfully title executive that could be issued the state applicant placed possession. executive and the The federal government prevented immigration could have foreigners region designate into this or other chose to under its clear powers and long without state constitutional state law remained law. So as this public force the lands in the bor- or coastal der state executive without obtaining prior approbation president of Mexico was power necessarily void because the make grant, such a even citizen, especially
ato Mexican had been withdrawn the state general powers itself from the of its executive. April 28, 1832, repealed
Decree No. the state law of act, law March therefor a similar substituted 7, being prohibition “not of old Article limited settlers composed partial of two-thirds Mexicans.” This was at least a act, given by withdrawal but state’s consent the earlier prohibition in the main it left the in force. 26, 1834, all
Decree No. the Act of March abandoned *35 previous plans public It omit- of laws of settlement of the lands. all in the ted and border restrictions on the settlements of lands coastal leagues. required state In 32 it executive Section appoint “to the commissioners should at once titles who issue residing Nacogdoches, and those inhabitants of the frontier of colonies, they occupy.” lands These east of Austin's to the lands leagues; in therefore this act were the border and coastal to an termination of the state’s consent amounted absolute Indeed, it amounted to a command the federal restriction. grants at once in the mentioned in 32 state should cases Section supreme executives. approval of the federal issued without the Supreme decided Court In the three cases grants attempted and Texas supra, under the Coahuila or showing 1832, respectively, without laws of 1825 supreme had prior approbation federal executive of the being void, obtained, within the the lands of course were held But, leagues. power the state executive or coastal border grants approval under Act of without issue such such opinion clearly upheld. summarized in This is 1834 was Thorn, Republic Hemphill Justice Chief it said: wherein state, but alone from an officer of the issue
“The title could an president was essential constituent of the approval public portion of domain power, and without his in restraint This rightfully appropriated. condition could not be public was over the lands general power the state of the by provisions in the state laws and enforced sanctioned March, 1825, April, and in the com- colonization * * * September, 1827. instructions missioner’s 1832; of the law virtue by was issued “This title decree, national of the that, as those well terms validity.” to its president was essential of the approbation McQueen’s Heirs, 3 said, in Goode the court And 241: necessary “It inquire is not here to whether the restriction imposed granting by general govern- power on the of the state rightful authority not, ment was the exercise of because grant, us, made, at the time the it case before was equally repugnant general gov- to the law of the state and the supreme ernment approbation to make it without * * * republic. executive of the “At the date of plaintiffs to the ancestor below, congress the court had never assumed to act on the leagues, domain way within the border other than in conformity strict passed by with the colonization law the con- congress stituent republic. congress Had the of the state border, passed a law for the settlement of this land on the granted authorized its executive to have the same to new set- tlers, might questioned judicial have been well whether the adjudicated tribunals of the state could have such act to be un- void, ground constitutional and repugnancy of its federal presented constitution. It would have a case of conflict political authority govern- between the of the state and federal ; might ments and it have been insisted that it would have to be them, settled beyond between judicial and was the control of the say legislature tribunals to the state had transcened its powers.” *36 pointed It was further out that both the constitutions of the Republic and of the State of Coahuila and Texas reserved to legislative department interpretation of the constitu- tion. In Article 165 the federal constitution reads:
“Congress right interpret alone has the the Constitution in doubtful cases.” constitution, And in congress the state 97, Article
given enact, power interpret, “to repeal amend or the law government relative to the administration and internal of the branches,” in all its and in State “the tribunals Article 172 it is directed that being justice and of solely courts authorized law, applying interpret shall never suspend same nor their execution.” proceeded: then court “If, then, legislature an act of the there had state right grantee,
gave property to the without of reference to the executive, forming federal approbation of the a rule prop- myself say erty, not feel authorized to I would that it was void general re- repugnant of the to the colonization law because being re- repugnant of the public. It not to our constitution Texas, present public institutions. nor inconsistent with our myself I authorized to withhold the benefit would not feel plain- legislature and Texas from of Coahuila the act they below, under which if it would sustain tiffs * ** title, the acts of can no doubt claim . There be Texas, they congress are and far as the state of so Coahuila rights completed, and to applicable to contracts executed government by consummated, those from the former derived the date of the declaration of Texas at were citizens who independence, regarded prop- general, as the law must in congress ; any supposed repugnancy acts of erty of the and that republic constitution, state or to the constitution force, considered; they Mexico, are still cannot be abrogated annulled the constitu- unless have been republic to, Texas; repugnant otherwise tion of the or are with, incompatible of the new and institutions the laws government.” above, comments, quoted were made the basis court’s Webster, 616, 16 Texas when of the decisions in Blount v. grants in of the state the border court had before it one obtaining appro- the state law of 1834 without made under holding executive, supreme court federal
bation
grants
ruling
under the law
in the Blount case such
since
consistently
followed
1834 were valid. This rule has been
including
arising
1834,
v.
act of
Johnson
all
Smith,
under the
cases
Shaw,
41 Texas
Cowan
Johnson v.
Williams,
v.
The rule announced
Goode
v.
in state executive to case. law commanded the this That promptly without vacant were colonized care that all the lands anything exception delay paralyze proceedings. The to or general 11, in Article read- made to command was embodied ing as follows: Leagues. “Art. Border the same man- 11.—Littoral —In foreigners projected by
ner shall he take care that no town be leagues upon within situated of ten littoral the coast of the Gulf Mexico, State, previously within the 'limits of the without obtaining approbation supreme the consent and of the executive that, Beyond of the Union. far line so said he shall also take care permit, the sites con- as the new towns be established ones, present stipulates tact with the and with the he conditions empresarios.” with the congress express Here in terms the state fed- consented to a power eral restriction on its lands within the coast leagues. consent, however, expressly This was limited to the projected by foreigners” case of the establishment of “towns that area. The federal restriction within was the constitutional power general congress. consent, needed, if state’s given clearly expressed. the restriction thus It cannot be general extended to a either restriction or settlement within that area by foreigners. citizens Mexico insists that decisions the cases of Blount Webster, Williams, 16 Texas Cowan v. 49 Texas Smith, grants Johnston v. which involved from Coahuila and Texas made commissioners under the act theory were March held be valid on the president approbation through of Mexico was shown general government April Aug- resolutions of the ust, dated in not in cases, are accord with this We view. Those reveal, opinions upon in them were proposition decided grants by authority law of Coahuila and 26, 1834, previous Texas of March probation were valid ap- without supreme executive of Mexico. This conclusion clearly shown to correct following the use of the lan- guage (21 722) contained Johnston case. : grant, plaintiff claims, under which “The was issued Smyth, under the the 26th the 32d Commissioner article of the law March, 1834; decision of the court in the Webster, Tex., 616, settled, case of Blount v. has in reference grants present, of the character that neither settle- ment, the consent nor executive Mexico was federal validity. necessary Power, 14, to their Smith v. Tex. 146.” ours). (Italics *38 Trevino, involved The case of Cavazos grants of Tamau- of the the state authorities State leagues lipas and the land was within ten coast. situated grants seems held to be valid. The case involved were except opinion in of court to have been noticed other Welder, the in where the case of Wood court commented:
“* * * of question from the State the title in emanated distinguishable may possibly from similar and be * * Texas, *. from the of titles State Coahuila opinions Tre- the at the of the decision in court time authority rarely in this have cited as vino’s case seem to been reasoning the contained cannot to some of state. We subscribe us, opinion, to reasons herein- in it seems clear the Tamaulipas but grant stated, land from state before league previous without situated within the border valid being supreme first approbation of Mexico executive obtained. through fifth, sixth and contends its seventh The State awarding
points respond in erred of error that lower courts superficial to entire area of Padre Island. The ents title grant respondents contend that the include entire island leagues square of land. The limited to contentions was not of ^ proceedings specifically are that the as shown more the State grant, valid, leagues expediente if disclose a 11.15 in the legislature grant land; confirmed the act of the which that the llyí leagues County Cameron none was limited to County; to is entitled recover the excess Nueces grant actually granted and that amount 11.15 over the uncertainty in that for indefiniteness there is void land, identify the way which was intended to no is now separate land granted not intended and to to be grant. proceedings all the In as disclosed in within the included pertaining land, documents expediente and other record, pass is said bounded the island to be shown north, by on the Corpus Christi that of de Brazo or barra Laguna south, Madre, Santiago west and on on the Balli asserted 1811 that his Nicolas claim the sea. the east grazing (the agostadero island) “La Isla” was to surveyed adjudicated. Through had been he asserted he had attorney pre he asserted that fact theretofore his incomplete proceedings governor testimonio an sented original may have of which grant, forwarded for a year government applica- and made about the seat Santiago. again, tion for a of the land of the And island Santiago for the land of the island of terminates at the *39 Corpus stated, governor Christi Bar and consists of 19 sitios. The >2 2, 1828, January surveyor proceed on that the “shall inspection Santiago.” survey the visual The island judge Matamoros, 8, 1828, February of the second instance at directing survey survey inspection, and visual ordered a Santiago. and demarcation of the land of the Brazo island of de judge residing The further certified that he had notified those Santiago survey near the Brazo de that such was to be appearing any opposition right and “there pos- to the Corpus adjacent Brazo,” session of said island of to the and on February 20, 1828, judge certified: ‘.‘Having inspection concluded the visual of the lands and * * Santiago islands called Brazo de inspectors *. The visual closely.” other members of the committee were examined 5, 1828, judge officially On March certified that the sur- veyor appointed by governor state, as well persons island, who presented denounced the said analytic report, plan demonstrative, or “and the calculation of said land large consists of eleven for sitios stock and six caballerías officially captioned: land.” The demonstrative is Santiago, Plan of the “Democtrative Island of denounced uni- formly by Balli, nephew, ecclesiastic Citizen Nicolas and his * ** belongs, Juan Jose Balli to whom said island which lies Laguna length between to north sea and the Madre. Its from south thirty eighty consists of nine five code- ladas. from East portion fifty Its width to West at its widest diminishing nine portion toward unequal pro- cordeladas each end in angle, following in an
until it ends the bends and curva- Laguna tures formed the shores of the sea and the which causes the uneven width the land. This Island contains eleven large and six sitios stock caballerías.” surveyor’s field notes of the were The included within map. plan consejo demonstrative reported his council 7, 1828: June Santiago of Brazo
“The lands of the Island de which the Citi- Balli possessor denounced as ancient zen Bachelor Nicolas adjudicated has to him Government and his brother Balli, (should duly nephew) surveyed.” have Juan been July 21, appraisers report in their referred to Christi, Corpus August and on land as the island of report judge their interests (en- certified to “islet senada) sea, Laguna Madre, that is situated between the Brazo * * Corpus Santiago, day de and Barra de And on the same that : “* * * may in order I execute what ordered has been Supreme Government, already journey started the point accompanied
mentioned experts the two named and assisting witnesses, two summoning adjoining without owners as there Island, always were none at time on that which had * * possession Balli, of the Citizen Nicolas *.” And further: “* * * they inspected together Corpus the Island of Christi me, examining thoroughly pastures, its more or waters * * permanent less of nature *.” *40 judge
The further recited: “Having present concluded the business reference to the Corpus Island of Christi denounced Bachelor Don Nicolas nephew, Balli, I, Judge Balli and presiding his Juan Jose survey, justice place the official state that in and truth the where survey began opposite Santiago the Brazo de without mentioning any particular landmark for reason island, tract of land already is banco ensenada or situated as stated, Santiago Bar, Corpus between the Brazo de Christi Bar, Laguna reason, Madre the sea.- For that and be- entirely by water, cause said land is surrounded there have any adjacent any time; only never been land owners at but possession very has been of its ancient and first settlers * * *” duly who are those that have cited. been fiscal, attorney general, The or the declared on March to the with reference denouncement of lands made Balli, Matamoros, citizens Nicolas and Juan Jose residents of jurisdiction in that of the lands situated known as the island Santiago having concluded, only “It remains now (11) deposit price of (6) eleven sitios and six caballerías * * surveyed judge were second at Matamoros 15, 1829: recited December Balli appear Juan Jose be cited to “Let the Citizen for him- Balli, the deceased Priest heir of Nicolas self all likewise Balli of the said Padre who are heirs entitled to half of given Corpus to the end that be the Island the corre- provided possession with the formalities sponding law.” decree: And in the same * ** appear Juan Jose
“I commanded to before me the Citizen belonging might given possession part Balli so that he * * *” Corpus; to him in the Island replied: party And the interested
“* * * gave empower, he and to this effect would he Power-of-Attorney of, brother-in-law, in favor his the Citizen Solis, possession, Rafael to the end that he should take belonged him, of the half of the Island that also and in but part he, manner like of the other to which Juan Citizen Balli,.was entitled as Executor.” regard judicial possession, judge With act declared:
“* * * Corpus, I crossed over to Island accompanied parties, standing the above mentioned pro- I said land place possession (11) large ceeded to of the eleven sitios for caballerías, (6) cattle and six Corpus of which the Island of being composed; comprehended it, Christi within the Island name, place of this Alta’, or site Boquilla known as ‘La de Loma Vista’, Devisadero’, the ‘Rancho de Buena ‘El ‘Los Sauces Jose’, Augustin’, de San ‘El Paso de ‘La San Piedra Enterrada Cruitas’, Laurelitos’, del Palmerito’ and ‘San Juna de las ‘Los Santiago ‘Carnestolendas’ and Brazo de of which land the Citi- possession zen Rafael principal, Solis took in the name of his * * Balli, Juan Jose strong equally record contains other evidence which is *41 expediente. as contained in the It seems clear to us that nephew, under the record in this case Nicolas Balli and his Juan sought Balli, acquire, to and the Jose official of the of them, intended cede to an entire island which agostadero enclosure, regardless an or considered as natural quantity or the area or stated details of the survey. official y Sanchez, Diaz v. 234, In the case 226 Veve U. S. 33 201, Sup. say: L. 57 Ed. the court Ct. may by well “A tract be so known name that it can be de designation. conveyed and without other- And scribed cases there are ranch, where, a island, or of in the sale an or of a well- by plantation, the limits described prevailed, name have known discrepancy a it and was between descrip there other when Lodge Lee, out in the same deed. terms set tive 6 Cranch 237, L. Ed. 210.” 3
244 grant Lodge granted in the case of v. Lee to Thomas land, Eden, lying
Lee upper “all that being tract or island of called George County (following specific and in Prince with a description).” definitely held
It was that: “* * * grant island, name, River, by a of an in the Potomac superadding thereof, and courses which distances the lines resurvey island, part on are now found to exclude will pass the whole island.” O’Donnell, Sup.
See United States v.
S.
58
U.
Ct.
708,
This case of State v. held: S. W. body having subject matter of sale was a land “The only identity fact, survey law under the and distinct necessary to define its exact boundaries.” applicable to us that the true rule in this case
It seems Property, Thompson Real Sec. as follows: stated only points description of a tract of land name to evi- “A showing body generally aliunde the existence of a of land dence designated, and such evidence is known the name admissible apply the land intended. A the name to by that passes the title to the entire tract known such name ** * general grant by a to be limited sub- In order for a name. definitely description an intention must sequent particular such particular description. appear terms from the surveyor ordered the official be doubted It cannot Santiago Christi, Corpus survey island the entire nephew his had denounced and Balli the Padre Nicolas which, subject dues, survey payment inspection, adjudicated Tamalipas The of had to them. governor of charge proceedings surveyor judge in certi ficial judge’s survey officially as directed was made. The that the fied plan surveyor’s report demo proceedings of government duly to the council were submitted strativo had The land been denounced to be correct. it found upon have been based an earlier This could sitios. Ballis % surveyor The fact Spanish authorities. survey by the *42 containing sitios, land as 11.15 the Tamaulipas measured of Tamaulipas survey was on that drawn must be inference Tamaulipas of were the authorities basis different a leagues pasture of land the island of number in the interested appraisers inspectors of reports The contained. rough land its area and contained made it clear that much of was many surveyor Tam- sand for state of dunes. The official along aulipas approximately ran north to south a line angles gulf right and at and at intervals shore of the island 10,000 Laguna usually of cross the shore of the varas lines to straight lines, Had the as it was Madre. lines been in fact by shore undoubtedly surveyor, computation his would assumed approximately correct, if the shore lines were have been but irregular along lines, imaginary his or the course of curved his Regardless approximate only. of the de- calculations would be calculations, survey possible in tails of the errors the record exhibits, part opinion, a our clear intent on the of the officials Tamaulipas of entire island. we have of the State cede the As pointed above, out under Section 23 of the Colonization Law Tamaulipas proceed- of ings of effect at the time the State these had, paid were the amount be to the state for the lands adjudicated to from the kind land in- them was determined volved, grazing land, where, such as uncultivated or woodland. So case, specific adjudication in this as was of a tract of land boundaries, only purpose survey well defined natural of a money paid was to ascertain the amount of in dues to inspection judicially state. The visual had determined wood island contained no suitable for cultivation and no pasturage. only need, therefore, for land. Its value was survey inspection for the was for the visual ascertain grantees pay. required amount in dues the were law to leagues was measured not the number of in the entire This island, plain under terms of area but the statute pasture land it contained. the number refusing court, a writ of error This case Cor- State, rigan App. approved 42 Texas Civ. 94 S. W. speaking remarks of the court say: court nothing day, in that time and “It unusual when the granted, originally Surveyor Ynojosa was General Tamaulipas, or of states of other Mexico border- the State original frontier, grants ing so should these regarded large The lands were excess land. to contain pasturage worth, principal pur- value was and their little fact, all familiar who have had to in- poses. It is a occasion lying original grants territory, vestigate within that large generally excess.” contained Gilbert, 247 S.
In the case of Stover W. *43 246
841, involving survey River, a which called for the Brazos thence following down the specified distances, river course and which actually line ran generally at distance from the river and parallel with except its course due to bend of the river there departure was a place. considerable at one held It was it is not uncommon for field notes to be thus run so as to adjacent exclude stream, surveys lowlands to a but that such should be construed to include the land to the banks of the river, following p. the rule stated in 9 C. J. 189. See Oklahoma Texas, Sup. 268 U. S. Ct. L. Ed. 1057. areWe opinion doubts, any, if as the- extent and bound aries of a juridical Mexican are resolved the act of possession. Russell, In the case of App. State 38 Texas Civ. (writ refused) S. W. 289 it is said: grants
“The two call for the Santanita as their south bound- ary reaching point line. In this the distance falls short when surveys establishing are constructed from the calls northern surveys. testimony line Canales, shows that surveyor general, surveying instance, who did the in this * * general thing grants as a so located as to an create excess *. If there should be pre- doubt as which of the calls should vail, that for course and distance or the north line of Santanita, the right long-asserted it should be resolved in favor of the juridical possession under which is shown this * * * relating case. There is some juri- evidence to the act of possession justify dical which would the conclusion that it ex- Santanita; tended to the north line of the and whatever doubts indulged late date could be in with reference to which prevail, of the calls should should be resolved in favor of that construction that would include and embrace land determined juridical possession.” the act of Sais, In the procedure case of State v. was congress Tamaulipas outlined which the in Decree 24 of the October, 1833, required 19th of under its law. Under the earlier Tamaulipas procedure substantially laws of was the same. grant by We have found no of a instance inspection precede where the and visual did not juridical possession title, act of and the final concession of patent equavalent to a under the later Texas laws. The act always juridical possession has a judicial considered interpretation survey. construction or of an earlier types Three grants passed of Mexican have been the Federal courts. They include: grants by specific
“(1) boundaries where the donee was en- tract; by quantity, (2) one or more the entire as of titled to larger in a tract out of land situated described speci- quantity entitled to the the donee was boundaries where fied; grants place par- (3) or of a certain rancho some specific where name either with without boundaries ticular according if donee entitled to the tract to the boundaries according given, given, if to the limits of tract as *44 by proof possession.” of shown the settlement 337, States, (8 Wall.) Ed. 75 U. S. 19 L. Alviso v. United States, 827, 469, 305, Higueras L. 5 18 224, Ed. v. United Wallace States, (10 Wall.) Hornsby Ed. 77 U. S. 19 L. v. United grants type mentioned is more like the which The first 900. Tamaulipas. of The cases of v. emanate from the State State 274, 369, Co., Gallardo, 166 S. State v. Indio Cattle 106 Texas W. Schutz, 308, 316, 578, (2d) v. Johns 47 Texas 154 S. W. 356, belong Hills, 141, 2 the third 67 Texas S. W. Clark grant arising of type. cited to a case in the have We belongs Tamaulipas properly second class. of State juridical possession of Padre Island the act of In the case possession expressly clearly juridical The was ordered is by shown. Tamaulipas possession governor of of the State was the formality by by given required proper judicial law of in the jurisdiction in land which the was situated. It was ficer not surveyor judicial necessary of for the this case monuments, any for the reason that the land to erect was ficer an north, east, by south and on the west the sea. island bounded right Tamaulipas of had to recover the State Whether enough necessary say for us to determine. It is is not excess right Tamaulipas, in the of if remained State that whatever Texas, right and that such was ex any, passed to the State by the island relinquished to the owner of the Act of pressly 10, necessarily February conclusion 1852. This Confirmation ruling this court case Clark follows 141, Hills, 2 S. W. ' through points its last three of error contends The State allowing respondents a re erred in courts the lower field notes made sur covery land as described involve the owner State veyor Boyles. The contentions and the location the tidal island ship of accretions that at the time It is asserted boundary the same. line of Tamaulipas, accretions the sea law of grant, under sovereign. respondents contend property of became that accretion, and alluvion effect erosion law of grant practically time of Tamaulipas at the State the same as the rule of the common law and all fast high above mean tide which has formed on the shores of Padre grant belonged Island since the to the owners of the soil. primarily replies upon arising State cases under modern civil law codes. It is clear from the decisions of this court rights respondents of the State and must be determined in the light of the civil law in at effect the time of the as it Tama'ulipas. Letzerich, existed in the Miller v. (2d) Texas 248 49 S. 85 A. L. R. W. and authorities incorporated cited. It cannot the law be doubted that in Las was in Siete Partidas date of the effect the State of at the grant. fact, September 21, 1821, In when Mexico gained independence, Spanish municipal its law inwas effect adopted and so continued until the state its first civil code on accession, June 1871. The laws natural which include accretion, Partidas, are treated in Las alluvion Siete 3 Par- tidas, 28, pp. seq., Edition, Title Laws 827 et part provides: Translation. Law 26 in Scotts’ everything men, decree that that rivers take from “We little little, the amount of cannot so that be ascertained because *45 belong it not all removed at once shall is owners of untied, and that land to it is those from whom it is taken which have no further interest in it.” shall Spanish law was taken from the Institutes of Justin- 1, 20, ian, 2, Title which been Book Section has translated as follows: by your alluvial soil added the river to “Moreover the . yours by impercept- of nations. an the law Alluvion is
becomes ible gradually by increase; is added alluvion which is added so perceive person no one can how much is added at of time.” moment English and accretion of the of alluvion common The rules origin Spanish have their civil law from this text law and the from the The text institutes does not mention in the institutes. sea, only rivers. The same true of but accession question arises Partidas. The as whether the men- text of the (in texts) example is to considered as an rivers tion of general principle of a law whether the rule illustrates which applied in is to be cases rivers. Ro- in the texts stated ap- entertained the view that the rule law commentators man that rivers were mentioned as a declara- plies to all alluvion general principle of law. tion of England Lords, by
In it was the House of in the case decided Yarborough, Bligh English 4, 147, Reprint, of Rex v. N. S. Vol. p. 1087, along by that additions reliction the sea accretion and property adjoining shore become the That decision owner. by Supreme in was followed of the United States St. Court County Lovingston, 46, Spain Ed. In Claire 23 L. Wall. rulings adjudicated preservation judicial there was no in commentator, Escriche, Joaquin Spanish cases. Dr. a noted Alluvium, Legislación y Jurisprudencia, “Diccionaria de word 149, p. said: properties situated on its
“The alluvium that the sea adds to shores, belongs right also of accession to owners of property, said who are authorized to construct dikes in order preserve it.” accession, p.
And he id. as: defines natural right thing gives ownership “The in what it us produces, accessorily all united to it nature above what is alone, man.” without the intervention of the work of by way
And of illustration: slowly is the increase of our land that the river adds “Ours along bank,” citing insensibly to the fields we own the river Partidas, Title Law 26. Amandi, Spain, his Commentaries the Civil Code of Yol. p. Spanish had written after the law of accession inquired: in 1866 and twice modified statute right enjoy alluvion? the sea “Do lands bounded law, appears re- the doubt must be our ancient Under of those owners whose lands were bounded solved favor the sea.” *46 Spain later modified two enactments
In this law was Cortes, ports and the law of the law of waters of 1866 change the in effect in Ta- Those statutes cannot law of 1880. any light properly maulipas in fact throw in 1825 and cannot Tamaulipas upon at time. Dr. Mariano the law was Madrid, Rubio, of Barcelona and has stated of the Universities English Spanish alluvion from laws of derive that both Institutes, 1, 20, paragraph Book Title wherein Justinian’s it is said: “By a hidden increment and is is understood there alluvion slowly is added added alluvion so considered that one space cannot know how added.” much each of time is
Although neither the Partidas makes men- nor the Institutes alluvion, tion of seashore Dr. Rubio continues: “But Spanish juridical this omission of the Law has no con- trol, principle applicable Spain because the time of law since distinguit, distingere immemorial: lex Ubi non nec nos debe- mos, distinguish applied. is here to be law does between maritime and fluvial alluvion nor rule which establish can distinction, serve as a basis is due ex- omission clusively give to the fact that alluvion in the does not rise sea because, there, person lawsuits one interested. The is Law, Roman consequently, the Partidas was elaborated (cid:127) cases, having the basis of the solution of concrete and these not covering arisen alluvion, percepts maritime law exists.” no Any distinction that can be drawn between the alluvion up by rivers and accretions cast must arise out of the sea based, law the seashore rather than that of accession and be suggested by Rubio, as upon Dr. the ancient maxim that property passes private seashore is common and never into hands. seashore, accession,
The law of the like the law of originally great systems jurisprudence derived in both from the Institutes of Justinian and the ancient Roman law. Thus the law of the seashore in effect in when made, in this case was like the law of alluvion and accre- tion, Partidas, which, was that stated Las Siete England, early common law of differs some details Roman law. It is stated in Partidas Title Law Scott’s Translation, Edition, p. 820: ground designated “And all that is the shore of the sea which high tide, during is covered with the water of the latter at year, whole whether in winter or in summer.” Manuel, (1 Recopilación, In the Institutes Aso and White’s p. 70) it said:
“By part shore the sea we understand whatever of it water, is covered with whether in winter or summer.” Justinian, 1, (Sandars The Institutes of Book Title Trans- lation) the Roman declared law be: things By
“1. these are law nature common to man- *47 running air, sea, water, consequently kind —the the the approach shores of the sea. seashore, is the No one therefore forbidden to habitations, provided respects that he monuments not, buildings, sea, subject the law are like the of nations.” percept law,
This of the Roman which makes the seashore property guid- public property, common and not remains as ing principle nearly jurisdictions in all or all which acknowl- edge changed statute, by the common law unless code or in jurisdictions changed all civil law as well. The law in France was change in Spanish by 1804. The first the was made the law Spanish Waters, 1866, together Law of enacted with the laws alluvion, change prior accretions and no but there had been - towit, independence, Sep- the effective date of the Mexican tember land, part always Thus the seashore was no but an
adjunct of the sea. The sea classification and the shore property as sea common is as old Roman as oldest law, by very meaning but its nature and there could never be an accession to the seashore as the seashore was defined in the law Spain, grant which was effective in when the in this case was made. seashore was defined to “all be ground designated the shore of the sea which is covered during year, water of the latter the whole whether winter or in summer.” tidewater, Since there any could no to land accession below change changed ipso in the tide line facto If seashore. upland sea land, encroached owner lost his he had no
redress; adjoining seashore, if alluvion formed the latter line, by very receded with the tide nature of the accre- tion new alluvion which formed above tide line should contiguous part upland become a estate. Appeals, It was assumed Austin Court of Civil Company, case of The State v. Texas & Cattle Land App. Civ. 78 S. that the rule of the common law W. belonged
to accretions to land the seashore sea Spanish owner was the of a same case made in 1807. That case and was instituted State At torney general. attorney gen It is be assumed that the then Supreme eral entertained the same view. error Writ prosecuted Court not to have been State. seems Couden, presses Ker v. S. the case of U. *48 Sup. L. that “was 32 dealing Ct. Ed. 432. The court in case Philippines, with the as it not with law existed country, prevails mixed antece- that in this whether of which (Italics ours). to dents or the common law.” It seems us Waters, passed Spanish a which was construction the Law in possibly in the State could not control the law in effect grant in Tamaulipas in this case. when the any pointed political authorities to of the are action We arriving gives Tamaulipas aid in us the State problem. we been cited at any solution of the Nor have correct government upon ques- by any department the declaration the feel to follow rule which tion involved. we inclined Thus great commenta- of the seems to have the concurrence of some upon opinion is founded (quoted above) tors and which in our grant ques- in justice, the sea to the natural that accretions gov- 1829, belong tion, in not to the the law as existed under ernment, upland estate. but the owners boundary question the of the location of
There remains the survey upon surveyor grant. what the con The was based high judgment of lower line of tide. The sidered the mean interest was to effect that had no courts to the State survey. No was made of lands enclosed high tide. It is con purporting line the line of winter to be grant line under is limited tention of the State that time at the law force lying judgment the land between the line should have for State respondents high con and mean tide. The winter tide Appeals, the same con and make tended in the Court Civil finding here, support a is sufficient to tention that the evidence line fact there is no difference between substantial actually surveyed by high sur of veyor Boyles. winter tide and the line Appeals reviewed Honorable of Civil Court respondents. We the contentions of the evidence sustained are view. in accord with that Appeals, judgment which affirmed of the Court of Civil court, judgment affirmed. trial 20, 1944. adopted by Supreme December
Opinion Court * Rehearing 7, 1945. overruled November Sharp, dissenting. Mr. Justice rehearing. for After a care- is before us on motion
This case States, Supreme the United denied. * Writ Court of of certiorari 1269; S_______ Sup. U. Ed. Ct. L. ful my consideration of the motion I have decided withdraw original dissenting opinion therefor the fol- substitute lowing : squarely presents question
This case respond- whether ents are State, entitled to receive of land from the 30% although surveyor’s regard- the record shows that the field notes ing specified definitely leagues; this land 11.15 the Ballis paid leagues; 11.15 that those held under the Balli who leagues; claim asked the State to confirm 11 and that % carry obligations in order to out its confirmed such claimants leagues. 11% *49 majority holding I opinion think the of this in Court errs (1) is State not entitled to recover the land on Padre land, Island in (2) excess of the the land acquired 11% by formed accretion to Padre Island since the Ballis holding their claim from the Mexican Government. I think the point clearly against on the first records under which is the Act of 1852 and the
respondents holding claim this land. The point clearly contrary on the second is to the decisions and against public policy relating of this State accretion islands. following
At supplemental the outset I desire to make the appears nego- statement of It facts: Balli Nicolas had some regarding Spanish colony tiations land with the former of Nuevo Santander, organization Tamaulipas which became the under the State general of the Mexican in 1824. The Government colonization Tamaulipas, law of the State of of December (Sayles’ Early Laws, 89) provided Article the method of obtaining government. applied title to land for under the former 11, 1827, acting through Balli, On December Nicolas his attor- ney fact, presented peti- his Governor complete tion for Spanish proceedings, testimonio of the earlier or, absence, Tamaulipas. its for a new title from the applied petition The land for is as follows: described Santiago “For the land of the at the Island of that terminates Corpus Bar Christi and consists of sitios.” 19% proceedings by Spanish
No Balli under the Nicolas Govern- found, application ment were considered as a new application by Jose, nephew jointly, Nicolas and his Juan under January 2, 1828, Tamaulipas. the law of em- Governor original pro- decree the that neither the bodied ceedings his statement dispatch nor the instructive found in the had been government, archives and that he had determined that Matamoros, summoning surveyor the Alcalde of named after by Government, Domingo Fuente, de la should Citizen survey proceed inspection instruct him to with the visual legal Santiago, steps of the lands of the that other Island of provided respond- Unquestionably should be taken as law. survey. ents’ claim for this land la must rest on de Fuente’s 5, 1828, submitting judge Surveyor On March Official Domingo report de la Fuente’s on said land stated that such Leagues report land as shown such “consists Eleven large (sitios) for stock and six of land of which said caballerías * * pasture consists, whole .” pasturage, That not much the island was suitable for largely dunes, salty bays that shore, it consisted in its sand amply supported by reports is made to the Mexican relating Government to the island. brings showing report
This us to the made de la Fuente survey the method and land and the field manner his of this survey notes of into such him. He divided his Figures. Figure copied four The field notes of One are below following quoted in order to show the method used him. report: from his
“Demonstration. *50 F.F.F.F.
“A.A.A.A. Figure and Extension of the island from North to South “The Figure. B.,A.
over First times, hundred and streached one and ten “The cord was shore, B. Y. the cord from East to West over was entered the La- forty terminated on the border times and stretched guna, of triangle ten a formed that was one hundred and and was longitude forty of latitude whose surface of and cordeladas square hundred thousand varas which five counts and five is Corpus composes de Christi. From north the Riccon is what following edge B. of the shore over C. to south hundred times and reached the site stretched three cord was Carnestolendas, over H. the cord was from East to West C. of fifty quadrangle a was formed of three four times and stretched longitude forty of latitude and whose of hundred cordeladas forty and five composed counts hundred of square area is forty varas, B. Y. of cordeladas and and is because thousand triangle four, formed that also has three hun- fifty is H. of C. longitude dred cordeladas of and fourteen latitude which is forty fifty four, square the difference between and area whose fifty varas; is five counts and two hundred thousand D, twenty C. to the cord was hundred stretched two and times, Laurelitos, five and it Los reached to from East to West fifty quad- over D. the cord was stretched nine times and a G. rangle twenty was formed that has two hundred and five corde- longitude latitude, fifty compose ladas and four of ten eighty counts and six hundred seven thousand five hundred varas, square fifty and C. H. is of and because four D. G. of fifty triangle nine twenty is formed of two hundred and five longitude, latitude, cordeladas of and five on account of the fifty nine, fifty difference between four and which has a surface fifty of one count and three hundred six thousand two hundred fifty square varas; and over D. E. the cord was stretched one times, seventy hundred and five and it to- de las reached San Juan Cruicitas; from E. East West over F. cord was stretched forty quadrangle six times and another was formed that has one seventy longitude hundred latitude, forty five cordeladas of and six of fifty whose surface is ten counts two hundred varas, square forty thousand and since F. six and D. E. G. fifty triangle nine there formed a was has one hundred seventy longitude five cordeladas and thirteen of latitude square eight forty whose area is two counts and hundred fifty varas; three thousand seven hundred E. A. over twenty cord stretched two hundred and it five times reached Palmarito; the BuHed Stone El from East over West A. rangle thirty quad- T. the cord was stretched three times and a eighteen
was formed that has a surface of counts sixty thousand, varas, five hundred and square two five hundred trinagle and a hundred has surface three counts and six fifty fig- fifty varas, six thousand two hundred and and the first eight aggregate ninety ure was concluded. All its divisions counts fifty and six hundred and six varas.” thousand two hundred (Emphasis mine.) Figures Two, Three, survey He continued his and Four
along Figure the method used in his One. In those Figures points, pass he calls for certain definite follows: “The Jose,” Augustin,” Devisadero,” of San “The of San “El Willows *51 Vista,” Alta,” “Boquilla de Buena de Loma Rancho and “Brazo Santiago.” by saying de He concludes his field notes that “the thirty cord was stretched times and it reached to the Brazo de angle.” Santiago survey terminated in an where the He sums following language: up survey in the result of his eight to seventy total two hundred and “The sum amounts fifty eighty hundred two counts and seven one thousand hundred stock, large square and six is sitios for varas. Which eleven caballerías.” n reports in by and others terms de la Fuente The used English,
relating and into to been translated this have interpreted compared more modern have been and instance, by surveyors. present day a sitio is used For terms league land; equivalent a equavalent a is a caballería league; equivalent to part and a 50 varas. fractional of a cord is words, 11.15 In other and six caballerías means eleven sitios leagues of land. report map notes and
De la Fuente attached to his field
showing
pursued by him in
the manner
method
detail
and
prominent
making
survey, as
such
well
the distances
survey.
worthy
points
of notice that
used to make such
It
embracing
by
map
by
land
made
de la
claimed
Fuente
Madre,
Laguna
not show
shore lines
the Ballis does
making
projected
contained in his field notes he
the calls
side, and he
from the shore line on the Gulf
mentions
border
Laguna only
undisputed
the Mexican
one time. It is
by
report
de
distrusted the correctness of
authorities
Fuente,
reinspected.
land be
la
commanded
law
fixed
colonization
State
The
running
grazing
dry
per
price
at
sitio and that with
land
$30
greater
competent
price
persons,
fixed
“two
water at
Laws, 457;
and the settler.” Gammel’s
chosen
executive
Leon,
appraisers appointed, Man-
v. De
for this Treasury paid into there Four this date has “On Forty belongs ($446.00) Dollars that six Hundred large (ganado (11) payment eleven Sitios cattle (6) of land denounced mayor) six caballerías the Citi- jurisdiction Balli in the of the town zens and Juan Jose Nicolas * Matamoros, *.” possession certifying juridical judge stated: *52 proceeded place “I possession in (11) of the eleven sitios large
for caballerías, (6) cattle and six of which the Island Corpus of composed; being comprehended Christi is it, within the Island of this name.” grant
There is no evidence in the record to show a Spanish land undisputed from the Government. It is that if the application, judge’s" decree, Ballis made the as authorized the “legal Governor of for the issuance cer- “grant” tificate of title” or “final concession” or from Mexi- Government, application can and and if the Governor acted on said grant, issued such certificate or such certificate or was not introduced in evidence on the trial of this case. This action, record any, does not show what if the Governor took application “grant” on the upon “final certificate” or based receipt reciting payment Treasurer’s $446.00 payment in land, of eleven sitios and six caballerías of denounced n by the Ballis. surveyed variously in 1828 was recited to be situ- Corpus Christi,” ated on the “Island of the “Island of de Brazos Santiago,” Santiago.” and the “Island of The name “Padre original appear Island” did not first proceedings. in Its appearance many years was in deeds made later. In 1850 referring we find Grisanti Tobar to a certain 11% pasture being land as called Island.” “Padre reports From survey by at made the time of the lade length acreage Fuente the of Padre Island and the embraced undoubtedly therein were about the same as when commission- ers report Bourland and Miller made their 1851. De la Fuente began survey place “Corpus his at the and concluded Christi” place Santiago.” reasonably appears it at the of “Brazo It de de la Fuente used Gulf shore line as the base line for survey right-angle his and ran his transverses from such shore Many objects survey, line. are for in are called his des- map part cribed on attached thereto and made the rec- survey ord. The various calls and how distances upon made are is described much detail. This suit based survey by Boyles survey island in 1941. The shows 135,213 Boyles long acres. testified miles contains 1/4 island, survey purpose that the his was to cover entire order to ascertain its area. He testified that he did further footsteps fix the lines undertake to follow the de la Fuente or showing map survey. la island of de He made Fuente’s acreage therein, map survey his said contained acreage comparison as contained it was shown in also survey. Boyles that at the time la further testified de Fuente’s is- head of on the he made his he a few stock saw nor appears It that neither the State land. respondents also record *53 surveyed the lines undertook to and establish locate by in Island la of land Padre de Fuente. The amount contained substantially reported by the same as Bourland and Miller is Boyles. is not convinc- reported by this it as that From record ingly now surveyed de la Fuente cannot shown that the lines be located and established. juridical possession
Respondents that contend the covered Unquestionably of the Ballis to Padre island. the claim the entire them, Island, leagues paid for or the denounced to 11.15 dealings primarily with the on their and transactions must rest and the authorities at Mexican authorities Vic- survey during years de- toria the 1827-1829. De la Fuente’s leagues, they only leagues paid for 11.15 scribed 11.15 plain quite It that when we consider the character land. is application claim filed and the land at therefor, time the made thereon, only reports and the made land the Ballis pay in for was the were interested or desired to land suitable They pasturage. not in sand were interested dunes salty bays, purpose unfit at that time for were value; quite report of no and it obvious from his that were is survey. them no de la Fuente did not include in his There is tending in this to the Mexican au- evidence record show grant Ballis, intended entire Padre Island to thorities only leagues survey payment showed 11.15 and the because the survey and the received was for that amount of land. The receipt leagues, judge Treasurer’s it as 11.15 and the describe juridical possession certifying land to the this stated placed purchasers possession he of the “eleven sitios for large and six It shown that the Mexi- cattle caballerías.” is not land, grant and it issued a final to this can Government ever patent undisputed the State never issued a therefor. conclusively surveyed paid land facts show amount of for, nor the State ever and that neither the Mexican Government granted the entire island. When the State confirmed title to discharged duty Treaty full under its title to 11 nothing Guadalupe-Hidalgo. There is in this record show give possession judge of the land em- intended survey. so, la If he had done his act within de Fuente’s braced Ledoux, binding. 129 valid Pinkerton v. not have been would 399, 706; 346, Ely’s Sup. L. Ed. Admr. v. The 9 32 Ct. U. S. Sup. 840, 142; States, L. 18 Ct. 43 Ed. 171 U. S. United
259 States, Camou v. The Sup. United 171 U. S. Ct.
L. Ed. 163. survey calls contained in the de la Fuente control government making grantee
intention of the accepting land, it. That called for a definite amount presumption government and the grant is that did not intend to State, (writ refused) ; more. Welder 196 S. W. Jur., p. 123, boundary Tex. vey sec. And if the sur lines such fixed, de la Fuente can be located and the holders of the Balli claim are entitled to the land described such survey. Jur., p. pp. 140-146, 7 Tex. sec. 6 secs. 23. It fol right granted lows that whatever Padre Island not to the Ballis Tamaulipas, passed remained in the State of Texas, State, right and is now owned unless such especially relinquished to Balli claim land was to the holders of the the Act of 1852. *54 respondents State contends that are not entitled to claim any part and recover upon of Padre Island. This contention rests Section 8 of Article 14 of the Constitution 1876 2 of and Section 1852, of the relinquished Confirmation Act of in which the State leagues to the claimants of the Balli y title 11 called “Padre Island, County,” provided Cameron land such should be surveyed and a return of the field notes thereof made to the Office, General Land and that the Commissioner was authorized required and platted maps to have the same on the of his office patents undisputed issue thereof. It is of that the claimants comply this land did not with either the Act or of 1852 with Section 8 14 Article of the Constitution of 1876.
The State’s further contention is that the claimants of this asserting land are forever barred from a claim to the land be- they comply provisions cause failed to with the of the Consti- Respondents, hand, tution. on the other assert their title by proceedings to the entire island was covered Spanish governments, which emanated from the and Mexican by 1852, as well as the Act of Confirmation of and that it was unnecessary comply for the claimants of the land at that time to provisions quite with plain It Constitution. that the Legislature by applica- the Act of 1852 intended to confirm leagues land, y upon tion of Grisanti and Tobar for 11 based map de la Fuente. The and field notes filed leagues by him are definite and in detail the describe 11.15 grants land. of this State have held that The courts land Spain which emanated from the Government of or that of ,260
Mexico, definitely previously surveyed and which had been with boundaries, grants recognized described had been which State, resurveyed. validated De la Fuente’s need not be leagues map field notes and of the 11.15 describe the boundaries surveyed by my sufficiently opinion him. In are definite surveyor surveyed by de la enable a locate fix lines Fuente, Legislature carry to con- out the intention the survey. Corrigan 11leagues firm of land such See v. based on State, 95; Corrigan, 171, App. 42 Texas 94 S. W. State Civ. 101; State, App. Sup., 94 41 Texas Civ. S. W. Sullivan v. 89, 645; Texas, 416, Sup. 28 Ct. 95 S. W. Sullivan U. S. 274; 141, 215, Hills, 52 L. W. Ed. Clark v. S. agree overruling majority opinion I this contention of the State. not that Padre Island could have sold
It is also contended would Ballis because such sale law, expressly provided settled Mexican have violated the that the ten not its within Government could sell
Mexican approbation Supreme leagues Execu- the coast without Laws of Power of the National Government. See General tive (1 Mexico, August Gam- No. dated Colonization Laws, 97); Article Law of mers Mexican -Colonization strengthened Laws, (1 39.) And furthermore this is Gammel’s grazing land were than six the fact that more person, Mexico. provided the laws of sold one Aug- Mexico, No. dated Laws of Colonization See General ust Laws, (1 98.) 1824 Gammel’s respondents’ Appeals held that title to of Civil Court *55 Treaty protected of under the entire Padre Island was the Guadalupe-Hidalgo. the laws and decisions That court reviewed relating support question, of its conclusion said: and (1871-72), Tex. it was held 35 “In v. Trevino Cavazos unnecessary was approbation federal executive that the leagues grant validity littoral land within the of a of the a S. by to Mexican citizen.” 173 W. of the' Governor 522, 532.) (2d) only by foregoing one cited Court of Civil case is the the The decision, and that case was
Appeals its rendered to sustain Court,” and has never been cited the “Reconstruction 291; Taylor Murphy, Texas 1 v. 50 approval this Court. See regard- Tamaulipas laws Jur., provisions of the xxxii. The Tex. ing by this in the fol- grants construed Court land have been of DeLeon, Sais, lowing 60 Texas State v. v. cases: State
261 64 support holding Texas 553. These cases do not in the case Trevino, of supra; v. Chambers, Cavazos cf. Wilcox v. 26 Texas 181. prove The burden rested on the Ballis to federal approved grant, Davis, executive of Mexico their Edwards v. 321; Republic Texas, 499; Texas Thorn, The v. Texas Goode Ballis,did McQueen’s Heirs, The not The do this. Power, grant case of Smith v. involved the title to leagues four that had been made Coahuila opinion In Texas. the Court said: question authoritatively repeated
“No more settled court, decisions of this than that the consent of the federal execu- grant tive of validity lands, Mexico was essential to the aof present, of the character of the within border and coast leagues.” Appeals The Court of further Civil held that if the title to protected Treaty this entire island not under the of Guada- lupe-Hidalgo, the attempted Act of 1852 “cured all defects Tamaulipas-authorities, of the island declared the things valid, title to in all relinquished all claims of the State thereto.” Appeals This conclusion of the Court Civil assumption rests Government, on the the Mexican based survey Fuente, granted on the of de la the entire Island Padre Ballis, relinquished and that Act of the entire island to the claimants of Balli claim. majority it, opinion, as I understand holds that
respondents Island, are entitled to upon all of Padre based proceedings emanating Mexican Government and de la survey, 1852; independent Fuente’s of the Act and the case Trevino, supra, holding. support Cavazos is cited of that majority support assump- conclusions must find proceedings tion that had with the Mexican Government pass were title de sufficient to Padre Island and that la survey island, Fuente’s covered entire and that when the bought only leagues they paid acquired for Ballis of 11.15 all I the island. submit de la Fuente did undertake to island, survey only pas- the entire but undertook to land, acquired ture and that the Ballis a claim from the Mexi- paid leagues 11.15 for can Government for 11.15 leagues. evidence, applied further Tobar As Grisanti and land, pasture and the Act of liy confirmation leagues. 11 y2 1852 confirmed *56 17, 1833, Tamaulipas grants limited
The law of November breeding DeLeon, leagues persons stock.” 64 “six State Texas 552. of which the This was maximum amount land individual, as Mexican federal law be united in one allowed to Laws, property. his own Article 25 of Colon- Gammel’s 98. adjudication Tamaulipas ization Laws of an authorized varas,' square an each of land to equivalent individual of 120 million leagues. provided that “more than five Article grants individual, adjudicated two cannot be to one he removes demand it of should increased number of those necessity. state shall For violation in these recover cases Laws, point ownership is 458. thereof.” 1 Gammel’s Ballis, adjudication in- that one was made to the as two grant was There a second ever dividuals. is no evidence that applied them. If we concede for on to them or either of grants argument’s for were made to each sake two grants foregoing laws, those would Ballis under either Island. not have all the land Padre covered Santiago Balli in the Mexi- sued Juan Jose In 1830 Morales money paid by part purchase Balli for him to can courts of bought Island, Balli. He Morales had from based Padre ground right recovery on “that the denouncement of his invalid, Corpus will be because claim Island Christi strength of required by law.” has taken the course On the money purchase Morales recovered his statement showing Balli, that Balli held an uncertain title from thus Mexican Government. foregoing Padre Island could not contention Since to the Ballis because sold the State of
have been closely law is Mexican have violated the settled such sale would by the if the to the further contention made related island it is to the entire not entitled to title State is recover 11% land in all of the excess entitled to recover relinquished will be con- two contentions the A.ct together. on the These contentions turn construction sidered of 1852. Act land, patent there evi- to this no no issued The State govern- having the Mexican issued a final dence ment, virtue respondents are entitled and unless authorities, from the Mexican papers obtained title of their the State virtue thereto from claim must rest their the Act discussing gross dis- Appeals, after Civil The Court of acreage la in de Fuente’s shown
crepancy of the Miller, said: of Bourland the estimate
263 probability “The is that there an was excess and that there also were accretions. The writer is rather inclined to credit the estimate, Bourland and especially Miller in view of the fact survey the de la Fuenta apparently purpose made for the estimating of pasture island, the amount of land in the for of paid, State should be rather than for outlining purpose of the boundaries of the island which was entirely surrounded water. attempt la De Fuenta did Lagfuna completed Madre shore line. He his sur- vey eight days.” This was the condition of this title when Texas won in- her dependence from gained Mexico in 1836. After Texas her inde- great pendence a deal of ownership confusion arose as to the lying lands in Texas between the Nueces River and the Rio Grande, within which area Padre Island is located. w&s There grave legality consideration, doubt as to the under grants as well as other from the Mexican Government. The State carry obligations Treaty Texas undertook to out its under the Guadalupe-Hidalgo, Legis- which was ratified in and the authorizing lature in 1850 a law appoint enacted the Governor to investigate two upon report commissioners claimed Mexi- can titles Grande, to land between the River Nueces and the Rio pass upon and to same as to whether or not each should be con- Laws, firmed. Gammel’s
William H. Bourland duly ap- R. Miller quote James were pointed commissioners, following as such and I report their written recommendations them relating to Padre Island: apply “No. 37. Nicolas Grisanti and Jose Maria Tobar for pasture leagues 11 granted by originally ‘Padre called Island’ 1/2 Spanish Balli, Government one Nicolas subsequently nepheio to him and his Juan Jose Balli confirmed * * * by the Mexican Authorities. We recommend for confirma- leagues only, assigns original tion to the heirs or 1/2 grantee, we that the island called ‘Padre Island’ confident feel contained, leagues or embraced over 30 land. It is therefore leagues to be understood that we recommend said 1/2 testimony land. For in this case see File No. Cameron mine.) County.” (Emphasis recommendation, Legislature
Acting upon pertinent February parts 1852. The thereof passed the Act read as follows: Texas, That Legislature “Be it enacted right interest hereby relinquishes all her of Texas
the State thereof, original grantee following lands to described legal assigns towit: their heirs and County
“Cameron Balli, half eleven and a (12) and Juan Nicolas Jose *58 called ‘Padre Island.”’ (5) provides:
Section nothing to construed as that in this act shall be so “Provided rights salt relinquish of the islands or of the to State territory in this act.” lakes situated in the embraced Laws, 941, 946) 10, February (3 The Act of Gammel’s 1852 County.” Prior the Balli land under the head of “Cameron lists 1851, Legislature time, that in had defined boundaries County. undisputed about is that Padre Island is of Cameron It length, present counties 110 miles in and that it lies within Nueces, Kleberg, Kenedy, Willacy, It is also and Cameron. undisputed County not embrace to that time did that Cameron the whole Padre Island. regarding in of the State rule of strict construction favor grants
grants relating applicable is to Mexican islands grants Republic of Texas. well as to and the State Menard, Delesdenier, 76; 23 v. v. State 7 Texas Galveston 221, repeat 349; Jur., has p. 155. This Texas edly 34 Tex. sec. Court legislative grants announced rule the well-established State, strictly in favor of of land must construed explicit granted in unequivocally clear and whatever not is ambiguity Any statute must is in the terms of a terms withheld. Giles, 143 operate Grayburg v. Oil Co. favor of State. Magnolia v. 497, (2d) 680; Petroleum Co. S. Texas 186 W. Walker, 929; Empire Fuel 430, (2d) &Gas 83 S. 125 Texas W. 265; 138, (2d) Texas, Dolon 47 S. W. v. State of 121 Co. Bradford, 695; 361, (2d) Walker, v. 49 State v. 121 Texas S. W. 515, 1065; on Statu (2d) Lewis’ Sutherland 50 S. W. Construction, 2, 548; Mining tory v. State Co. Vol. sec. Coosaw 537; 689; Carolina, 550, L. Ed. 12 36 144 U. S. S. Ct. South Co., 139 Transportation v. Pullman’s Palace-Car Co. Central 478, Bowlby, 55; Shively 152 Sup. 35 L. Ed. 11 U. S. Ct. 331; J., pp. 1122, sec. L. Ed. 39 C. S. 14 Ct. U. S. 664; L., p. 1220. 18 R. C. clearly manifest, foregoing rule of the The wisdom applicable to this case. particularly rule is Delesdenier, supra, In 1851 this Court in the case of discussing public Republic policy of Texas with islands, reference to the reservation of said: “By Dig., 127), adopt- January (Hart. the act of art. ing laws, repealing law common all former former reserving islands, etc., especially Government continued were force.
“And, although exist, no excep- such laws are known to Congress tion indicates the belief of the that islands at that time location, subject-to not were and its intention continue such laws force.” Legislature In 1851 reported Bourland and Miller leagues.
the island contained little more than Boyles In 1941 surveyed reported island it contained about 30% leagues. quite It is obvious de la Fuente did undertake survey the entire island. had Commissioners them before record of de la applications Fuente’s Grisanti and pas- Tobar confirmation of the 11% land, ture made their Legisla- recommendations to the *59 leagues only. Legislature ture 11 The ac- for confirmation of % cepted adopted such recommendation and the Act of 1852. The recognized leagues State that Act the claim for and con- 11% same, firmed and those who claim under the Ballis are entitled leagues. to the 11%
The State in several instances filed and has suits recovered State, excess App. 89, land. See Sullivan v. 41 Texas 95 Civ. 645, 416, Sup. 215, 274; S. W. v. Town of 207 S.U. 28 Ct. 52 L. Ed. Heard Refugio, 349, (2d) 728; 129 Texas 103 S. W. Find lay State, 956, 30, v. 651; 238 S. W. aff. 130 Texas 250 S. W. Post, 401, v. 468, 169 S. Id. 106 Texas W. 169 407. S. W. State, 89, In App., 645, Sullivan v. 41 Texas Civ. 95 S. W. 207 416, 215, 274, Sup. brought U. S. 28 Ct. 52 L. Ed. the State suit leagues by all land in for excess of the confirmed the State 6% leagues full Act of 1852 for the amount of and no 6% more. Defendants claimed that the land involved emanated from leagues grant Garza, a Mexican of to Pedro de la made in 6% 1832, by confirmed the Act of 1852. In that suit the construing the In State recovered excess. of Act 1852 the said: Court survey provided of the act “The confirmation was to originally granted by of the land the Mexican made authori- legally ties, Hills, include other could not land. Clark v. and 145-146, survey
67 Tex. S. W. And if the caused to be by made the owners of the in this case under act of original grant confirmation included other more land than or thereof, by made virtue it would be void as to such other land or excess.” affirming Supreme Court United States State,
judgment of the Texas Court Sullivan v. 207 U. S. 215, 218, Sup. 52 L. Ed. said: Ct. Legis- contemplation “It have been within the could claimant, surveyor, picked out should lature have this State, survey, power mere matter of bind grant nearly is double size of that which confirmed relinquishment.” statute of Refugio, 129 Texas of Heard v. Town of
The recent case (2d) acres involved an excess 43.9 103 S. W. leagues granted by Coahuila within the four bounds Refugio. for, and excess was sued to the Town Judge Smedley in the held that it could be recovered. Court opinion said : course of the Refugio acquired the Town of under the the title “While may merely incipient equit an law have been
colonization Refugio Byrnes, may title, suggested is in Town of able n sovereig disposition subject to the have control 268;; Dignowity, (Dittmar v. S. W. Pence 608, 610), original title Cobb, the nature S. 155 W. act, by unimportant That the act confirmation. authorizing requiring Commissioner of Land Office mayor and their of the town suc to issue aldermen land, patent had effect for the cessors four legal corporation title and vesting as a absolute in the town dedicated, (and more) that was ownership the land no of all of *60 by granted Law. Town to the town the Colonization or reserved (2d) (Com. App.), 29 S. 1041.” Refugio W. v. Straunch of mine.) (Emphasis any never claim the State asserted
Respondents contend any part of Padre Island after con- any over control or exercised They by Act also the of contend firming Balli claim the by maps land is not claimed the State. show this official that the history the of the times and nature of keep the in mind Let us passed. It well known that of Act 1852 when the this land level, practically sea and only a few feet above land is comprising frequently all, Padre Island is land all, not of if during land, by flooded storms. Much of this as shown re- ports, improvements of consists sand dunes. No substantial of any nature have ever located the island. on The sand dunes salty bays years, and had no material value until recent when gas oil part They and were in that discovered of are now Texas. very prospects. valuable account of the mineral The record only grass shows that the land with on it was desirable. The buy land, they paid did want Ballis to the undesirable only leagues. for part 11.15 If the did not with State the title liy2 leagues by 1852, the land in excess of ofAct such belongs excess still And State. the State would not be deprived right merely of its to claim such excess land because State; some officer failed to assert title to same for the nor right by lapse time, would it lost its of reason or on ac- possession payment taxes, count adverse or the or because map on some it was not shown that the land was claimed State, protect- because some officer had been derelict in ing rights State, of the App. State. Sullivan v. 41 Tex. Civ. 645; Id., Sup. 95 S. W. S. U. Ct. 52 L. Ed. 274; Weatherly Jackson, (2d) 259; 71 S. W. Refining State, Humble App., Oil & Co. v. Tex. Civ. 162 S. W. (2d) 119, writ refused. Respondents right further contend that the State has no under this record assert claim to the land in excess of leagues y2 relinquished by the 11 tention in the State. Let us test this con- undisputed controlling connection with the facts as following reflected undisputed this record. The are facts: (1) application That the for the from the Mexican Gov- attorney ernment in fact for Nicolas Balli and Juan Jose containing leagues; Balli described land 19y (2) Ballis, upon based de report, paid la Puente’s leagues pasture land; (3) 11.15 the certificate juridical possession leagues; (4) described the land as 11.15 Tobar, acquired that Grisanti and who the Balli claim to the acquired Government, applied from the Mexican com- investigate appointed to missioners such claims for confirma- leagues pasture land”; (5) of “11 that Bourland and tion >2 a, leagues Miller recommended only, and 1/2 confirmation of were the same document stated confident that the island land; leagues (6) or embraced over 30 contained that the Legislature adopted the recommendation of the commissioners enacting relinquished right Act liy2 land, Island, called “Padre State Cameron public policy County,” keeping but the State rights any of islands or reserved salt territory covered said Act. lakes situated *61 268 leagues
That' 11 y was the amount of land covered grant running through is the dominant fact this case. The sur- vey leagues, payment leagues, covered 11.15 was made for 11.15 juridical pasture possession and certificate of was for the consisting leagues. asked of 11.15 The claimants under Balli leagues land, pasture the Act y> the State granted leagues. y of 1852 them Can it be said that doing grant Legislature holders of the and the of Texas were acting thing a vain and useless and were without reason authority passed? without when the such Act of 1852 Until held, best, only passed grant Act was at the holders of the questionable undisputed claim. Under the facts can Legislature seriously intended the Act contended Island, Padre 1852 to of the entire confirm leagues land, specifically when the Act contains more than 30 language leagues. used the Act confirmed When the 11^ recognized governing by any tested rule the construction of statutes, long-established pub- with the considered connection relating lands, submerged policy lic it is of the State to islands and Legislature clearly did not intend to re- evident that linquish y and Tobar more than and confirm unto Grisanti land, survey, la and the as described the de Fuente leagues. 11 y entitled to recover the excess over State is point involves the doctrine of ac- The next to be considered written the State. Much has been cretions to islands owned accretions, pur- no subject it would serve useful but on the applicable to principles and pose the various rules to discuss countries. and in different What- in different States accretions will here are cited and discussed authorities and decisions ever ascertaining purpose re- whether the State the sole be for right Padre Island to the accretions to linquished its of 1852. Act Letzerich, 248, 49 S. W. Miller In case of through Court, speaking Chief L. R.
(2d) 85 A. Cureton, said: Justice Republic Texas in the before in force “The statutes light law are to be construed of the common introduction validity legal law, effect of civil Mexican adoption grants land made before the
contracts
according
law in
civil
determined
law must be
common
grants.”
time of the
at the
effect
rights
guarded
zealously
'her
in the sea-
always
has
submerged lands, and has
never
her islands
and in
shore
*62
passed any
rights
relinquishing
law
her
in such lands. This
repeatedly
grant
along
ordinary
Court has
held that an
pass
seacost does not
title to
land that
is covered
water,
grantee
shore, which,
and
“takes
to the
at
law,
ordinary high
common
tide,
which,
is the line of
but
under
law,
highest
the civil
is the line of the
tide in
44 Tex.
winter.”
Jur., p. 127,
Furthermore,
sec. 99.
Texas retains its control and
ownership
bays
of the islands and the waters of the
and Gulf
leagues
for
Art.
three
Hartley’s Digest,
from the shore. Act of
127;
Delesdenier,
76;
v.
City
of Galveston
Menard,
349;
Jadwin,
App.,
State of
Tex.
Civ.
refused;
S.
Robison,
writ
Texas, 358,
W.
DeMerritt v.
granting of though land on an island even Section 5 had not been included in the City Act of 1852. The case of of Galveston Menard, supra, involved the construction of an Act of the Congress Texan passed 10, 1836, authorizing December part relinsuishment of of Galveston ques- Island to Menard. The ownership bays, flats, tion of the etc. under the arose in that case for decision. This Court in an ex opinion haustive written Roberts, Mr. Justice reviewed the concerning power authorities grant, make such authorities and acquired sea, which showed who bays rivers, shores, grant, their under such a and in the course of the opinion it was said: power results, necessary consequence “This of the abso- sovereignty republic, lute territory over included in boundary its limits. The southern territory of that was defined congress, an act of the Texan to extend from ‘the mouth of river, running along gulf the Sabine Mexico, west leagues land, three from to the Grande,’ mouth of the Rio etc. Texas, state, by After annexation of an legislature, act of the right jurisdiction re-affirmed its ‘exclusive to the soil, over the republic Texas,’ in the limits included such as of the late excepting may States, by in the be vested United the constitution of States, joint United resolution of annexation. * Hart, Dig. arts. 1631 and 1634. *. said, law, sea, bays it is rivers, “In the civil that the common; shores, free to the any one, were use of their and are belong to no one. deemed >¡í $ >¡1 H* ^ is, question right does this act confer main “The to the flats, lying shore and bay? south of the channel of the If viewed ordinary grant land, coast, as an extent of ten littoral it not. The does interior, had been reserved colonization, gen- except since the consent of the government eral policy of Mexico. It had not been the of that government encourage settlement, its or the settlement of the islands, by which it is lined. day passage act,
“On next after the of this another was passed, by resolved, belonging which was ‘that all islands republic, be, hereby, govern- shall and are reserved for the use, except president authorized, specially, ment to sell *63 Cong. given authority June, them.’ 1 76. Which in was 1837. Cong. 267, By manifested, special 1 this was that a con- government. By trol over the islands was assumed law, sea, navigable bays, civil the shores of the streams generally, tide-waters, jealously guarded well as as the were private appropriation, from and reserved for common use.” For a discussion of the that are doctrine accretions not al- fronting sea, following lowed to land on the see the authorities: Corpus Juris, 40, 1437, 239; p. Napoleon, Vol. sec. Code Book II, 1, 556, 557, 558; Justinian, Section Articles Institutes of Re- Edition, 1852, by II, 1, Cooper, vised Thomas Book Law Title 1, 87; p. Partidas, 28, 3; Third Book of the Title Law Kent’s Commentaries, Edition, 3, 427; Jur., 44, p. 13th Vol. Tex. Vol. 127, p. sec. 100. pointed have definite statement We as to Tamaulipas 1827-1830, law of in what find civil was but we do 29, 1871, Tamaulipas adopted code, on June that civil among things following: which other contained the ponds owners of “Art. 894.—The estates bounded lakes or acquire the land uncovered the natural do not diminution waters, by extraordinary that which is nor lose inundated flows.” adjacent islands which are formed in'the “Art. 898—The seas domain, public are of the state no one can
to the coast ac- except govern- in them concession property from the quire ment.” controlling the law in must be conceded this case
It is Tamaulipas in in force the State law 1827 to the civil during period acquired 1830, the Ballis their claim from assumed that government. It can be law then in force
271 Spain. applicable in law civil in the State of law, Spanish Respondents admit that “the ancient in their brief Partidas, munici- mainly to be the in Las continued found Siete Congress of pal present of Texas until the law within the area law was Republic adopted Law.” The common the Common 1840, approved rule “that the com- adopted and this Court in Texas.” force mon law as modified our local conditions 868, 870, State, re- App., writ v. 196 S. W. Welder Tex. Civ. 1124, 597, Reib, Grigsby 153 S. W. 105 Texas fused. See also Lands, 1011; 1915C, 1915E, R. A. Ann. Clarendon L. 1 Cas. 185, McClelland, 23 Agency Texas S. W. Investment & Co. 1100, 179, L. R. A. 105; Id., 22 L. R. Texas 23 S. W. A. 105; p. Jurisprudence, sec. 9. Vol. al, Manry et In the v. Robison case Cureton, writing opinion 438, 446, (2d) S. Chief Justice W. relating Court, exhaustively the authorities of this reviewed common, civil, arising rights riparian under owners adopting pointed and Roman law. He out that those nations most suitable adopted a which was the Roman law construction opinion briefly quote from that to their conditions. We follows: “England adopting Roman law as to its nontidal streams Vinnius, by Selden,
adopted Mr. the construction insisted others, (Vol. 49), title of the Farnham Sec. streams, riparians extended to the center of the because *64 Franch, conditions; Spain, to her while indicated construction was siutable and by adopted interpretation Gaius that Mexico 9, 107), generally (Scott’s Law, p. and followed Civil Vol. 1, 49), (Farnham, to that title the American courts Vol. Sec. streams, long occupied, was in the all so as the beds of public navibale sovereign, was because construction suitable their conditions. selecting interpretation in its the nations named “Each of long beds, ownership of stream so as Roman law as to occupied, rule which was suited to its conditions.” best chose Spain, operated province of under the a was also Florida to the in 1819. until it was ceded United States Spanish law civil Development McRae, v. Apalachicola Land & Co. The case grant 505, a 393, title to from the Lower involved 86 Fla. So. Co., grant, to John Forbes & Indians and Seminole Creek Spanish having alleged confirmed authori- as was given to transfer such leave Colin in 1811 ties Florida, opin- in an exhaustive Supreme Court Mitchel. relating Spanish law, to the authorities ion, reviewed held that under the civil Spain law in provinces, force in and its when affecting modified provinces, ordinances grants sales submerged and tide lands to invididuals were contrary general to the sup- laws and customs of the realm. In port many its cited, including decision City cases were Menard, Galveston supra. Supreme Louisiana, State, Court of a civil law case of Zeller Club, v. Southern 837, Yacht 34 La. Ann. held Ponchartrain, accretions to the shore of Lake a tidal lake, property were the property of the State and not the abutting owners. Company Couden, The case of Ker 268, & 223 U. S. Sup. Ct. L. Ed. involved accretions to land in Cavite, Loqzon Island, Phillippines, where the civil law ad- mittedly through was in force. The case went the courts of the Philippines finally Supreme reached the Court United States. Plaintiff in error in that case contended: “The Supreme Philippines holding law, Court erred in that the Partidas, as written declares that land above seashore belongs formed from accretion the sea to the Crown and not riparian Laws, 3, 4, 6, owner. Tit. 28 ed Partidas.” having Defendant error controversy, contended: “The land in been formed year from time to time since the down to present, by accretion, accession or occasioned the action of sea, became, formed, part public as was a domain and, Spain, such, became, upon of Philippine acquisition by it of the Islands, part public a domain of the United opinion Supreme States.” Mr. Justice Holmes wrote the for the dealing Court of the United States. He stated that he was Philippines, just dealing the law of the law of are as we here with the Tamaulipas keep and Texas. It is well in mind that Texas, Tamaulipas, long Philippines period were provinces Mexico, Spain. of State, time of which independence won her and Texas won her inde- pendence Supreme from Mexico 1836. The Court of United law, States held in effect under civil while accretions trial, occurred 1811 to the date of the such accretions be- longed sovereign to the United States as the which succeeded *65 rights Spain Philippines. Mr. Justice Holmes was by training, qualified scholarship, experience well to review bearing accretions, question the authorities on the and we quote freely opinion from the written him in that case as follows: conveyances under plaintiffs claim title from the
“The owner
273 upland. Philippine courts held that under the Par- tidas, III, 28, 3, 4, 6, Tit. 26, Laws 24 and and the Law of Waters 1866, the title to Government, the accretions remained question the vexed brought has been to this court. question “That the is a only by vexed one is shown not different Spanish views of contrary commentators but provisions of modern codes and the occasional intimations of the doctors of Institutes, 2, 1, the Roman law. Justinian’s 20 (Gaius 70), II. Partidas, 3, 28, 26, give followed the allu- vial increase of river banks to the owner of the bank. If this is to be taken example illustrating general as an principle a there anis end of the matter. But the Roman law is not like a deed or a modern prepared code History plays large uno part too a flatu. generalize to make it single safe to passage from a easy in so Alongside fashion. of the rule as to we rivers find that right of recognized alluvion is not ponds, 41, for lakes and D. 1, 12, a repeated rule often codes, g., in the Philip- civil law e. pine Civil Code of Napoleon, Arts. 367. Code Art. Italy, Code, 1865, Mexico, Civil Art. 454. Art. 797. If we generalize, are to analogy of lakes to the sea is closer than that of agris rivers. —We find further jus that In limitatis allu- vions right locum non hrnbet. And the of alluvion is denied for agrum cwptum, manu which was limitatum in order that it might it (exactly) granted. be known 41, 1, what was D. gloss 16. The denying Accursius treats as the this reason for jus again alluvionis. If generalized, might this reason were it contrary lead to a passage result from the in the Institutes. Grotius arbitrary, governed treats the whole matter as to be rules, local and both the doctrine toas rivers and the distinc- accurately tion as to enough. bounded lands as rational De Jure 8, 11, B. cap. respectable & P. Lib. 12. A modern writer thinks preserve concerning that it was a passage mistake to definite- ly grants Digest, Demangeat, bounded Remain, Droit Puchta, Pandekten, 2d ed. (‘antiquirt’ 165), sec. far but so view, as we exceptional have observed this an and from the older commentators that we have examined down to the late Girard, Romain, brilliant and admirable work of Droit 4th ed. passage accepted part seems to as of the law. At that, said, go all events shows as we have it is unsafe to much beyond what we find books. And to illustrate a little fur- uncertainty may ther the to the Roman doctrine we add that opinion goes mentions the that alluvion from Donellus the sea private owner to remark that texts cited do not IV, it, Opera (ed. 1828), support n., c. De Jur. Civ. peculiar rivers, of the Institutes as and treats the rule as also stating passage on the in his comment rule Vinnius seems *66 do, Huberus, hand, while to on the other that rivers fur- thinks ought Praelectiones, II, principle prevail. nish the that Tit. to 1, 34. tides, rivers,
“The seashore flowed unlike of the banks sovereign public Spain belonging power. property; to the 28, II, 3, 4, 3, 43, 8, Partidas, III, Tit. 4. Inst. 1. 5. D. Tit. proposition it a laid down And somewhat different that as to rivers if it should be held by a vested title is withdrawn that stronger Perhaps what a accessions to was owned before. argument on that the river could be based the rule the title to changes Ill, changes place. river Tit. 28. bed Law 31. Inst. 2. as the its Part. 7, 23. D. 41. 1. 5. But we are less concerned precedent this, theory in a like with the than with matter agree general we his view. whether with Grotius not in The or go beyond Spanish up, they help commentators do not little way that the naked statement one or the other. It seems to us prevailing Spain found in best evidence of the view is to be presumably Law it. The codification which embodies Philippines Waters which became effective validity September, doubt, no to of which we see reason declaring (playas), after like the that shores Partidas sea, part spaces alternately are covered and uncovered use, 1, 3, goes public Arts. of the national domain for shores.by ‘Art. lands added to the the accessions thus: 4. The belong public the sea domain. and accretions caused sea, (longer) washed are not waters When utility, necessary objects public for nor for the and are industries, guard special nor for the coast establishment of service, (will?) property of shall declare them Government estates, same.’ adjacent in increase argument
“Notwithstanding article is concerning accessions to the shore while it declaration futile sense, is, tide, in a literal washed we such remains principally plain it includes and means additions think that turn dry subject pub- all land. These remain the shore ownership until the Government shall decide that unless lic they purposes for mentioned shall de-
are not needed belong provisions adjacent estates. later them clare salvage, &c., public shall easement ad- in Article advances, simply sea recedes or as the deter- vance recede private ownership public nor shall exclude the that neither mines place. Spanish customary public from the new Law use Waters, Law asserts the title like the Ports rights private although public when there is no it confers need. foregoing presumption provisions
“The that the the Law understanding express Waters as to what the codifiers been, inexpugnable earlier had law becomes almost when we find leading adopted that the law other civil countries have the same *67 laying Napoleon, doctrine. The Code after down the rule Roman rivers, 556, 557, for alluvion in Art. adds at the end of the latter pas l’egard Article: n’a lieu ‘Ce droit des des la reíais mer/ adopted controversy which seems to have been without at Marcade, Explication, ed., 2, p. Conference. See further 5th vol. compare Journal, 307, 329, 439. And 2 Am. 324 Hall’s Law 333. Italy, 1865, 454, The Civil of Code Art. is to similar effect. See also, Chile, Code, Supreme Civil Art. 650. The Court Louisiana private in like manner acquisition confines the of alluvion to running streams, right rivers private and denies the Club, case And lakes and the sea. Zeller Yacht v. 34 La. Ann. provision Code, 510, of the Louisiana Art. like is those France, Italy Spain. The first court of instances below judgments Supreme refers to Spain of the Court of seem that to look in the same direction. We have neither heard found nor anything on the approach other side seems to us to the fore- going weight, speak considerations in respect not we must opinion feel for the concurrent both the courts be- upon low a matter of law local with which are accustomed deal.” policy of this State has been to reserve its shallow sub- merged public’s use, lands prohibit any for the ministerial selling words, officer In same. other it takes an Act of Legislature convey Packing such lands. v. Lorino Crawford Co., 51, (2d) 410; Bradford, 142 Texas 175 S. W. State v. 121 515, 1065; City (2d) Mann, Texas 50 S. W. of Galveston v. 135 319, 1028; Hynes (2d) Packard, 143 S. W. v. 92 Texas 562; Robinson, 45 S. v. W. DeMerrit 102 Texas 116 S. W. 796; (Civ. App.), Dincans v. Keeran In S. W. 603. DeMerritt Robison, supra, quoted approval v. Court from the Rosborough opinion following: v. Picton the
“ ‘According law, ordinary to both the common and civil an along seacoast, grant by of land the ministerial officer pass government, did not the title to of the land under water beyond line. line was fixed the coast This or common high tide, by ordinary point reached at the the civil law highest boundary mark tide. exterior at the line law grant (Sayles’ and Hewitson was the to Power seacost of the Early Menifee, Laws, 108; 718), Hamilton v. 11 Tex. and no given sea, them over the waters of the authority or was are, inlets, soil under them. bays and These well- grants principles, settled reserved for use. Hence the common colony passed commissioner title to land Menard, which was not under the waters sea. Galveston v. 349; Heidenheimer, 23 Tex. B. Galveston Surf Co. 562; Law, 1, 456; Mundy, Arnold v. J. Am. Den v. N. Dec. Sawyer, 226; Waddell, 9 N. 10 L. C. Martin v. 16 Pet. Ed. Hynes opinion approved by 997.’ That was v. Pack- this court ard, Rosborough Picton, 563, saying: 92 Tex. 45 S. W. ‘In App. 113, 12 Tex. Civ. 34 W. the title to the same S. involved, Appeals very was in a clear Court Civil opinion by Judge the land decided that Williams title, subject Hynes the officer who executed the grants. right passed by no think the such decision We having title, Hynes, conveyed none, and correct. no was liable ” upon warranty.’ his covenant of found, cited, in- nor
No case has been
has
consideration.
volved
facts of the
under
facts similar
case
*68
upon
called
to write on the
This Court has not heretofore been
However,
precise
upon
questions
has
called
to
in this case.
it
coming by
accretions,
pass upon
question
presented
the
in cases
appeal
v.
Appeals. In the case of State
from the Court of Civil
Jadwin,
presented
question
(writ refused),
the
This record shows Island, pay pasture land on Padre and those claim- ing The fact that under them are entitled to none of excess. buy worthless and undesirable the land the Ballis did grant, deprive title the State of its at the time of the did not right deprive to recover land. the State of to such To leagues, which excess existed land in excess of amount of in 1852 and exists 11J4 original now, contrary to what the *69 would be Legislature actually had in intended what claimants asked passing 1852. and Tobar when the Act of Grisanti mind that liy2 leagues pasture land to them confirm State Legislature Ballis, acquired and the from the had 11leagues award to the land to them. To now confirmed land in excess of the Balli claim all the of the 11*4 holders well, bays leagues, together and accreted with the lands policy public of this contrary State directly to the unbroken approximately Doing simply means this the Act of 1852. and 20 bays, dunes land, thereto sand leagues and in addition and undesirable and not accretions, worthless considered grant, very now but valuable time of the for at the paying worth minerals, production of will be lost potential on account having paid anything ever the claimants’ without to the State therefor.
278 majority
I clearly think the contrary decision in this case is weight authority long-established public policy seacoast, submerged lands, this State reference to the islands, islands, and accretions formed the sea to and hence compelled change power I feel policy dissent. The rests exclusively Legislature, with the does rest with I courts. think the entitled State is to the land excess of the yi leagues II original and to the accredited land formed since purchase. This case should be reversed and remanded. 7,
Opinion delivered November dissenting. Simpson, Mr. Justice agreement Sharp’s views, ex- I am in with Associate Justice dissent, pressed footsteps his to' effect original surveyor, Fuente, extended de la can be traced. The title one to the Ballis is no doubt a valid not intended to and should be sustained. But I was conclude only pasture land on an island cede to the Ballis entire but process surveyed it. This land was while the title was being extended; showing plats are the results of this footsteps record; principles, and under established upheld original surveyor followed and the title should be Hills, survey. 67 Clark v. within the boundaries his 171, State, App. 356; Corrigan 141, 42 Texas Civ. S. W. State, 101; affirmed 94 Sullivan S. W. S. W. App. affirmed 207 U. S. Ct. 95 S. W. S. Civ. L. Ed. 274. majority law of ac- on the view of
I with the concur cretions. 7, 1945. November
Opinion delivered dissenting. Alexander, Justice Mr. Chief permitted respondents opinion that should I am of the llyú of Padre land off the East side recover Island, by Mr. dissent Justice concur and I therefore' Sharp. Attorney originally presented the case time this At the not entitled to recover respondents were contended
General placed on emphasis was the as- No Island. any part of Padre *70 only part to recover entitled respondents were signment that rehearing urged now it is for the motion On the island. respondents only leagues, are entitled to recover and I am of 11^2 opinion that this contention should be sustained. my I views as follows: summarize nephew negotiated
At the Balli pur- time and his for the chase of the land from the Mexican Government in 1828 the permitted person leagues purchase only law one six of land. nephew purchase only leagues. Balli and his could twelve The inspected Mexican Government had the land two or three definitely times order to quality ascertain land conveyed purchasers charged price be and the to be there- survey for. laDe Fuente made the of the land for Balli and his nephew and the Mexican Government in 1828. His field in- *71 to find nephew were unable and his to Balli
The successors they produce a re- land, to were able papers to the but the title for showing paid the Mexican Government had ceipt Leg- they applied the Texas leagues. consequence aAs 11.15 appointed a Legislature relief. In 1850 islature for investigate the and Bourland composed of Miller commission Legislature. Miller and Bourland report to the back claim part follows: reported in leagues only, for confirmation recommend “We 11% that the original grantee, assigns we
heirs: or
confident
for
feel
oner SO
embraces
or
Island’ contained
‘Padre
called
island
recom
that we
understood
to be
leagues
land. It
therefore'
testimony
leagues
For
said land.
only
mended
11%
mine.)
(Emphasis
County.”
File No.
Cameron
see
case
in 1852 the
noted that
commissioners were of the
It will be
leagues
thirty
over
opinion that Padre Island contained
of land.
applicants
granted
However, they
only
recommended
Legislature
granted
leagues.
subsequently
“11Vi
11%
leagues
Padre Island.”
called
law as it existed at the time the
under the Mexican
Since
negotiated
land,
purchase
Balli and
parties
for the
his
leagues
land;
only
purchase
twelve
and since
nephew could
leagues
only
they actually
for
11.15
their field notes called
paid
leagues;
only
Miller and Bourland
11.15
and since
for
Legislature
approval
of this
a
recommended
leagues,
Legislature granted only
11%
51,000 acres,
unwilling
approximately
I am
or
11%
leagues,
135,000
approximately
approve
judgment
30%
acres, of land.
granting
majority opinion
not in accord with the
I am
respondents.
of the island to the
whole
majority
with the view of the
on the law of accre-
I concur
question
tions,
I do not consider
decision on this
decisive
but
question involved
this case.
Opinion
November
delivered
or
notes
1,
January
be filed
respondents’
and that
claim are
not
forever barred
their
admitted failure
file such field
notes.
Thomson,
New York
&
Land
Texas
Co.
Texas
v.
88
920;
Hills,
141;
S.
Campbell Gibbs,
W.
Clark v.
67 Texas
v.
Notes
thereof
return their
notes
Office,
failing
to the General Land
and all
claimants
do so
barred,
nothing
provided
shall be forever
in
section
shall
any
already
be construed as to validate
titles not
valid or to
rights
persons.”
interfere with the
of third
main
State’s
contention is that on account of the claim
comply
ants’
quoted
Relinquishment
failure to
with the
Act and the
provisions
Constitution,
of the
to Padre Island
legislative
had been
and all
forfeited
from its
benefits
confirma
quoted
tion have been
It will
lost.
be noted that
of
section
any
by
the Constitution
appel
has never been considered
of the
surveys,
late courts of this state. Provision was made for
field
identical,
patents
similar,
notes and
in terms
and in some cases
in
those contained
2 of the
Section
Act of Confirmation
1852,
11, 1858,
right
February
relinquishing
of
in
of
the Act
County.
Hills,
of the State to
lands
certain
in El Paso
Clark v.
141,
11, 1860,
February
pro
and to notes of such file the field Land Texas. of New York with the Commissioner of The case 169, Thomson, Company Texas Land Texas S. W. & 920, State, upon relied deals with an unlocated land cer- obligation merely An unlocated land certificate is “the tificate. of desig- government entitling the owner it to secure following quantity requirements of law.” nated recognize Relinquishment Act of 1852 was “to The effect" perfect validity and render the title as of Mexican Hills, against S. W. 356. State.” Clark through point next its third The State contends legislature, holding erred in Sec lower courts February not refuse to relin tion 5 of the Act of did general final clause of act quish title to Padre Island. provides: of confirmation nothing act shall construed in this be so “Provided rights of the islands or salt the State relinquish the territory in this act.” embraced lakes situated procla- Texas, Legislature at its first after session Hidalgo, adopted Guadalupe appro- an treaty mation treaty By approved give its act effect. priate measure investigation for the provided titles to February
notes only leagues cluded 11.15 off the East side of the island. la definitely While de Fuente’s field notes call for the east or granted boundary side of Gulf the island at the east of the land to be nephew, Balli only and his there is for the one call Laguna island, west side of the and that is at north end very survey the island where it is narrow. The was made beginning going along at the north end of the island and south measuring by stretching the east side thereof and a cord— — part way from east to west of the across the island at intervals approximately length five miles each. The of these measure- given. ments from east to west were The amount of the land in- survey by assuming imaginary cluded was ascertained an connecting line to south the extreme west ends of the north Many stretched across the island. cords measurements halfway from east to west did not extend cording across the island ac- present dimensions of the island. Miller and When they inspected the island found that it con- Bourland thirty fact, In than of land. at the time tained more negotiating purchase nephew were Balli and his that the island contained over nine- in 1828 admitted land leagues. survey la made de Fuente for the land to teen leagues. only nephew Balli and his contained 11.15 aside to set therefore, survey that the de la Fuente apparent, It is along strip land the east side of the a narrow included surveyor footsteps can be followed island. located. completed nephew Balli and his his de la Fuente After leagues. only 11.15 paid for