Roberts, J.
These two cases are submitted together,.and involve, in the main, the.same questions.
In the first, the plaintiff seeks to establish a right to the whole of the flats, usually covered with water, and lying between avenue “A,” in the City of Galveston, and the channel of the bay; a part of which the defendant is alleged to have trespassed upon, and held for a wharf, &c.
In the second, the plaintiff seeks to establish a right to extend “Bath Avenue,” from avenue A, northwardly, to the channel of the bay, as a street of the city, and to keep it open as such; and to erect a wharf on the channel at the end of Bath Avenue, which space has been appropriated and used, for a wharf and warehouse, by the defendant; and for which, a fine of $900 is sued for, as being in violation of an ordinance of the city.
Both of the defendants claim to have a good right and title to the portions of said flats, respectively occupied by them, whether in front of the streets of the city, or of the blocks of lots between the streets.
Avenue A, is a street running nearly east and west, and is in that part of the city occupied by the defendants, about the line of ordinary low-water tide; and the land, title to which is in dispute, lies between that street and the channel of the bay, being north of said avenue A, and about 645 feet in width.
The defendants, beside pleading the • statutes of limitations, claim title under Menard, the original grantee, by a regular chain of recorded titles, down to themselves, which regular chain is admitted. Menard, as original grantee, claimed a right to the flats, as part of the east end of Galveston Island, sold to him by legislative grant, in 1836, and included in his patent, issued by the President of the Republic of Texas, in January, 1838, which calls for “ running with the channel of the bay," in the northern boundary of the league granted.
The plaintiff contends, that the legislative grant did not include the flats, as attempted to be granted by the president in the patent; that, notwithstanding the patent, the right thereto remained in the republic and state of Texas, and was granted to plaintiff by the act of the legislature of 1851. Also, it is contended by the plaintiff, that if the flats were granted by the republic to Menard, as part of the east end of Galveston island, they were dedicated to the public, as an open space between the city, and the navigable channel of the bay.
The Republic of Texas had the power, through its legislative department, to grant that part of the Galveston bay, which lies south of the channel, usually covered with salt water, which constitute what is called the “flats;" and thereby vest an exclusive right in Menard to the soil thereof, and to the full ownership of the same, just as if it had been dry land.
This power results, as a necessary consequence of the absolute sovereignty of the republic, over the territory included in its limits. The southern boundary of that territory was defined by
an act of the Texan congress, to extend from “ the mouth of the Sabine river, and running west along the Gulf of Mexico, three leagues from land, to the mouth of the Rio Grande,” &c. After annexation of Texas, the state, by an act of the legislature, re-affirmed its
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exclusive right to the jurisdiction over the soil, included in the limits of the late Republic of Texas,” excepting such as may be vested in the United States, by the Constitution of the United States, and by the joint resolution of annexation. (Hart. Dig., Art. 1631 and 1634.) This claim of the republic upon her coast, may not have been admitted by other nations, further than one marine league from the shore. (Angell on Tide Waters, 2 ; Vattel, 129.) That would very much have depended upon her power to enforce her claim, as we have seen in the case of the British seas, and Danish Sound. (Wheaton’s Law of Nations, 152-158; 1 Kent, Com. 29.) But as between her own citizens, in respect to the rights to the soil, which they might respectively acquire, the boundaries, prescribed and claimed by the government, is conclusive. (Vattel, 128.) Her right to an inland bay, such as Galveston bay, could not be disputed ; both as to right of property in the unappropriated soil, and in the jurisdiction of her government. (Id. 123, 124, 130.)
In the civil law, it is said, that the sea, bays and rivers, with their shores, were common; free to the use of any one, and are deemed to belong to no one. (Angell, 18, 19, 178, 179.) Vattel, on this subject, says, The shores of the sea, incontestably belong to the nation that possesses the country, of which they are a part; and they belong to the class of public things. If civilians have set them down as things common to all mankind, it is only in regard to their use; and we are not thence to conclude, that they considered them as independent of the empire; the contrary appears, from a great number of laws. Ports and -harbors are, manifestly, an appendage to, and even a part of, the country; and consequently are the property of the nation. Whatever is said of the land itself, will equally apply to them, so far
as respects the consequences of the domain, and the empire.” (Angelí, 129.)
From the very nature of the property, which the government possesses in its navigable waters, and bays, and bay-shores, it can be ordinarily best appropriated, by devoting it to public use; and by not granting away any exclusive right to it to any one. Because every one can use it, and derive advantage from it, and no injury is done to each other in its enjoyment. It often happens, however, that the public use and enjoyment, of this species of property, may be promoted and increased, by allowing portions of it to become private property; as for wharves, docks, and the like, in harbors and ports. If the government could not exercise this right, in severing this common property, and appropriating portions of it to private use, it would not only curtail the ordinary powers, which every nation has for self-development, but it would pre-suppose a deficiency, in the sovereign power, to control or dispose of what belongs to it.
At common law, the right to such property was vested in the crown, as a royal prerogative. The modern doctrine of the courts of England is, that it is vested in the king, as trustee for the public, and that he cannot, since the time of
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charta, make a valid grant of it. (Blundell v. Catterall, 5 B. & Ald. Rep. 268; s. c. 7 Eng. Com. Law Rep. 91.) There is no question, but that parliament may grant it. (Lowe v. Govett, 23 Id. 203; Angell on Tide Waters, 88.) The legislatures of the several states may grant it, if not previously appropriated by grant, prescription, or otherwise; provided, the exercise of an exclusive right, thus granted, does not infringe upon the rights of the government of the United States, in its power “to regulate commerce with foreign nations, and among the several states.” (Charlestown v. County Commissioners, 3 Met. Mass. Rep. 202; 21 Pick. Rep. 344; 4 Rawle, Rep. 9; Angell on Tide Waters, 87.)
There is nothing in this case, which could be construed into an infringement of this right of the United States; according to the views taken by Chief Justice Marshall, in the case of
Willson & Co. v. Black-Bird Creek Company, 2 Peters, Rep. 245; wherein it appeared, that the legislature of Delaware had authorised the damming-up of a creek, up which the tide flowed, and covered a deep, level marsh.
Whether, then, this legislative grant be considered with reference to the civil law, which was in force in Texas in 1836, or to the common law, to which her people were most accustomed, it must be held, that the government had the power to make it.
This species of property, being land covered with navigable water, embraces several rights that may be separated, and enjoyed by different persons, and may become thereby, partly private and partly public; as, the right to the soil, a right to fish in its waters, the right to navigate the waters covering it, &c. These may be acquired, separately and exclusively, from the proper granting power, or they may be acquired, as it has been held, in England and many of the states, by prescription, and immemorial custom. In some countries, they are held to be acquired as an incident to the ownership of the adjoining lands; as, for instance, the right of the owner of the land on the shore, to extend a wharf across the shore, or even .to low-water tide, or to a certain fixed distance. These riparian rights, have been held to have been acquired by various modes; as by grant, by statute, by long custom, by prescription, and the like.
The divisible character of the property, and the different modes of its use, and the diversified modes of its acquisition, have exceedingly complicated the subject, in England, and in the Atlantic states of the Union. Attention is called to this view of the subject, only to show, that much of the legal learning that has been elicited by this complication of the subject, cannot apply here. In 1836, when this grant was made, the government had just been founded, and the country had just been settled, except a few interior towns, such as San Antonio and Nacogdoches, which were the sites of military posts, and to that, mainly owed their existence and growth. The inhabitants were an agricultural, or pastoral people; and the fact, that the plan of the city, when laid off,
covered the remains of a pirate’s fort, not then entirely obliterated, shows the absence of commerce, and of commercial cities, upon the coast. No old settlements and usage, had conferred prescriptive rights on riparian owners; no immemorial custom, in relation to rights on the coast, had matured into a common law; and no statute had been passed, so far as is known, since the partial settlement of the country regulating or giving rights upon the subject. The coast was clear of such difficulties, and the government was free to make such disposition of its domain, covered with tide-water or not, as it might see proper, without jeopardizing previously-acquired rights.
The act of the Texan congress, passed on the 10th of December, 1836, provided, “that all the right, title, and claim, which the government of Texas has, to one league and one labor of land, lying and situate on, and including, the east end of Galveston island, be, and the same is, hereby relinquished in favor of Michael B. Menard, and such associates as he may hereafter include; and all the right, title, and interest, which the government of Texas now has in and to said land, is hereby vested in said Michael B. Menard, and associates as he may hereafter include; provided, that nothing herein contained, shall affect the vested rights of third persons.” (1 Cong. 70.)
The main question is, does this act confer the right to the shore and flats, lying south of the channel of the bay? If viewed as an ordinary grant of land, it does not. The coast, and to the extent of ten littoral leagues in the interior, had been reserved from colonization, since 1824, except by the consent of the general government of Mexico. It had not been the policy of that government to encourage its settlement, or the settlement of the islands, by which it is lined.
On the next day after the passage of this act, another was passed, by which it was resolved, “ that all islands belonging to this republic, shall be, and are hereby, reserved for the government use, except the president be authorized, specially, to sell them.” (1 Cong. 76.) Which authority was given in June, 1837.
(1 Cong. 267, 268.) By this it was manifested, that a special control over the islands was assumed by the government. By the civil law, the shores of the sea, of bays, and navigable streams generally, as well as the tide-waters, were jealously guarded from private appropriation, and reserved for common use. As early as 1837, Congress, in establishing a general land office, for the distribution and disposition of lands, enacted “ that all streams, of the average width of thirty feet, shall be considered navigable streams,” and
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shall not be crossed by lines of a survey.” (Hart. Dig., Art. 1878.) The same act made provision for diminishing the front line of tracts, surveyed on navigable streams, indicating an anticipated advantage in the use of such streams for navigation. (Art. 1858.)
The well established doctrine of the common law, which is more favorable to private appropriation, than the civil law, is, that an ordinary grant of land upon a bay, whose tide ebbs and flows, does not convey the shore or any of the land of the bay covered with water.
In a grant made by the crown, of “ the Island of Brownsea and its shores,” a right was claimed to a bay of about sixty acres, situated at one extremity of the island, into which the tide flowed, and which, when the tide ebbed, was a mud flat; it was held, that this description, of itself, was not sufficiently specific, to pass the mud flat or bay, but as it had been accompanied by exclusive’ possession for forty years, the right was maintained. (Chad v. Tilsed, 6 Eng. Com. Law Rep. 171.) That case js important, in its application to this,- as indicating, that the terms of the grant were aided and extended beyond their usual import, by the circumstance of long possession; which was alone consistent with the fact, that the mud flat was intended to be covered by the grant, though not specifically and plainly expressed in it.
In the case of Martin v. War dell, it appeared, that a large tract of country on the American continent, was conveyed by Charles the second, to the duke of York, with both the right of domain, and right of government. The right of government
of the territory, was ceded back to the crown of England, by the assignees of the duke, and only the right of domain was rétained. It was held by the Supreme Court of the United States, that the right to flats covered with tide-water, within said territory, did not remain in such assignees, but was reinvested in the crown. (16 Peters, S. C. Rep. 369.) In that case, the assignees retained only such lands, as were subject ordinarily to private appropriation. They intended to remain the proprietors of what is ordinarily regarded as saleable real estate, as matter of profit; but not the guardians of the public in the administration of an interest, which is usually regarded as common to all, unless specifically excluded from common use.
Again, in the case of Pollard’s Lessee v. Hagar, it was held by the Supreme Court of the United States, that the flats covered with tide-water, in front of Mobile, were not retained by the United States, upon the admission of the state of Alabama into the Union, although the United States retained all the unappropriated waste lands in the state. (3 Howard, U. S. Rep. 212.) The object in retaining such waste lands, was for sale; and as these flats were not of a character of property ordinarily sold by a government, but usually held in 'trust for the public, it could not be supposed that they were intended to be retained.
In both of the last preceding cases, this right of property was held to be an incident of government, and passed with the grant of that power. It is to be observed, that in both those cases the right in the waste lands was retained, and upon a strict literal interpretation, lands covered with tide-water, such as the flats, would have been also retained. But by considering the character of the contracting parties, and the object of the party, in retaining the waste lands, and the uses and purposes to which such property, as land covered with tide-water, like the flats, is to be applied, and its immediate connexion with the common interest, of which the government is the protector; the conclusion was arrived at, that it was not intended to be retained.
The true reason for requiring a more certain and specific in
tention to a grant, in the case of lands covered by tide-water, connected with bays and other navigable streams, than in case of land not so covered, is believed to be, not any difference in the degree of right, possessed by the sovereign power of the state; but the difference in the character of the property, in its relation to, and connexion with, other rights, such as of navigation, of fishing, &c., which may be, and usually are, enjoyed in common by all the people of a state; and which are usually kept continually under the protection of the government, directly or indirectly.
In view of the full force of this rule of construction, we are satisfied, that this legislative grant was intended by the contracting parties to include the flats, so as to build a city upon Galveston island, with streets and lots running up to, and bordering on the channel of the bay. This conclusion is arrived at, from considering the object of the grant, its locality, and the acts of the contracting parties in relation to it. (1 Wheaton, 116; Vattel, 311; Broom’s Maxims, 536; 4 Gill & Johns. 1; 1 Coke on Lit. 59.) This was not an ordinary sale, or donation of land, as1 upon certificate or scrip, for indefinite purposes; but it was a specific grant, directly made by the government, for a specific object; and it must be understood and construed, with reference to such object. In the same act which made the grant, a part of the east end of the island, including the fort, was reserved; “also one block of lots in a suitable part of the town, for a custom-house, and other public uses, to be selected by an agent, to be appointed by the president for that purpose; to be selected on or before the first day of public sale of lots at that place.” The act also stipulated for the payment of fifty thousand dollars for the league and labor, thus granted to Menard. (1 Cong. 71, § 4, 5.) The president was required to make a title in the name of the republic, upon the pavment of the money. (Id. § 2, 3.)
These provisions show unquestionably, that negotiations had transpired between the government and Menard, for the building of a town upon the island of Galveston, which would be a
port of entry; and that the subject was practically surveyed, and well considered by them. This is confirmed by extrinsic circumstances. The grant was .made large enough to include that part of the island, nearest the bar, where it was practicable to build a town of any considerable size, and where the channel of the bay approached nearest the edge of tide-water. This particular locality was pointed out, as the suitable point for the town, by its relation to the passage into the gulf from the bay; by its situation being suitable to protect vessels as an harbor; by its position in reference to the Trinity and San Jacinto rivers, Buffalo bayou, and East and West bays. The island was cut off from the main land, and surrounded by shallow water, which prevented the approach to the dry land by vessels, but which also cut off all communication with the island, except by water. The only approach to the town, that could then have been anticipated, was through this navigable channel. The town was yet to be built; even building materials, firewood, and provisions, had to be brought to the place by water. The necessities of the country required its immediate erection, as the principal port of entry oh the coast, and as the best commercial depot of the republic. Commerce constituted the only inducement to its settlement, and by that alone, must it start into existence. Wharves must be built at great expense, in order to build up the city. How far out must they go ? The ordinary tides, rose only eighteen or twenty inches, and advanced and receded about two hundred and fifty feet. From the action and reaction of the waters of the gulf and the bay, through the pass, as affected by the winds, the tides, three or four times a month, overflowed the strand, (avenue B,) which would extend the flats to a width of about seven hundred feet, and as often receded nearly or quite to the channel. Again, five or six times in the year, during the winter, the tides receded to the very channel, leaving the ground entirely free from water; and as often arose to Market street, (avenue D,) extending the flats in width, one thousand feet.
The rule of the civil law, made the shore extend to the line of the highest tide in winter; and if that be adopted in interpreting
the grant, it forced out Menard’s right to erect a town, one thousand feet from the channel, and left unappropriated the whole of the intervening space, upon which no one could erect, with any security to himself, any warehouse, wharf, or other building, which were then, as well as now, so necessary to build up the city, and facilitate its commerce. And he had no title, and could convey none, to the lots on the strand; which were from the first sales, regarded as the most valuable for business houses, and upon which the leading business of the city has ever been transacted.
The rule at common law, would restrict the grant to the line of ordinary high tide. Even ordinary low tide would leave a strip in front of shallow water, over three hundred feet. At none of these points would wharves have accomplished any beneficial connexion with the navigable water of the channel. We cannot entertain the idea for a moment, that the parties contracting, in reference to the erection of this commercial city on the bay, contemplated it to be laid off south of the highest tide of winter, or even of ordinary high tide, and made no provision whatever for vesting in any one the right to erect permanent wharves, to communicate with the channel. No one, at that time, could have been induced to hazard the expense of erecting wharves, without being invested with a permanent right,—if not in the soil, at least in the franchise regulated by express law.
If, then, it be admitted, that the contracting parties understood and appreciated the difficulties of the enterprise, and desired its success, (which we cannot doubt,) then it reasonably follows, that they intended to do what, under the circumstances, was absolutely necessary to its accomplishment; and that was, to vest in some one, the right to erect wharves upon the channel. It could not have been designed, at that time, to vest the right in the corporate authorities of the city; for there were then no citizens here to incorporate, and no corporation of the city existed for several years afterwards. (1840.) The president of the republic, it is fair to presume, was consulted, and participated in devising the plans for so important an object; and
fully understood what was the object, and the extent of the grant; and hence, in executing the title, he designated the northern boundary,
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beginning at the northeast corner of lot No. 10, in section No. 1, as represented in the plat of survey of the island of Galveston, made by R. C. Trimble and William Lindsey, under direction of the secretary of the treasury, and running thence, due north, one hundred and fifty varas to a stake; thence eastwardly with the channel of the harbor, in the bay of Galveston, and with the general course of said island, at the distance of at least one hundred and fifty varas from the shore, to a stake one hundred and fifty varas from the extreme eastern point of said island,” &e. The reasonable construction of this call is believed to be, (when considered with reference to the object of the grant,) that the line shall run from the beginning point eastwardly, keeping at least one hundred and fifty varas from the shore, to the channel, (and not in a direct line to the nearest part of it,) and then along the channel, as long as its direction corresponds with the general course of the island; and when it does not, then at least one hundred and fifty varas from the shore, to be continued with the general course of the island. It was, doubtless, contemplated at first, and so understood by the president, that these shallow flats would here, as elsewhere, be filled up, out to, or near, the channel, and become a part of the town, with streets and blocks of lots, as other parts of the town. Hence the right was conveyed by him out to the channel, so that the whole plan of the town might be laid off, with reference both to its present wants, and future development.
So, also, did the city company understand it; as is evidenced by their acts, most unequivocally, during several of the first years of their operations. As early as October, 1837, a customhouse had been built upon a water block, selected by an agent of the government, and a warehouse was also erected, at that time, upon a water block, by McKenney & Williams; both of which were destroyed in the great hurricane of that month. This was before the patent had issued. In the spring of 1838, the town having been surveyed, and a map made of it, lots were
sold at public auction. The map showed regular blocks of lots, and streets and avenues, running nearly north and south, and east and west. The bay line was not straight, so as to correspond with the avenues, running east and west, but curved inward, to the south. The survey showed blocks and half blocks, in the water, about the middle of the survey, where the channel approached nearest to the shore. At each end of the survey, the blocks were extended down to, or near to the water, and so as to reach three and a half blocks north of avenue A; and had they been marked out into the water, would have reached the channel of the bay, or farther, for a considerable distance in front of the city, including that part of it, in which the defendant’s wharves are situated. The blocks are numbered from east to west, at each end of the survey of the town, just as if they had been marked out and numbered all the way in the water between the two ends. North of avenue A, and in front of the city, is a line of half blocks marked out in the water, numbered 14, 13, 12, 11, 10, 9, 8; thereby leaving it to be understood, that the corresponding numbers in the block 1, 2, 3, 4, 5, 6, 7, would be considered as laid off, to any one who might purchase.
In order that there should be no misapprehension .on this subject, a meeting of the directors of the Galveston City Company was held on°the 17th day of April, 1838, (the patent, defining the boundaries, having been issued in January preceding,) and by them it was “ ordered, that sale of lots, in the city of Galveston, shall be held on Friday, the 20th inst., and it shall be the duty of the agent to have it made known at the time of sale, that the survey of the city is yet incomplete, and that lots are yet to be laid off in front of those represented on the imperfect plan, now prepared for exhibition, but that when a complete survey is made of the entire city, the lots corresponding with the general plan, now presented, will be conveyed to the purchasers,” &e., (proceeding to describe the size of the blocks and the size of the lots, and manner of numbering them.) This notice was given at the sales, and the map representing the matter, as here stated, hung in the office of the company for many years,
and was constantly referred to as the recognised map of the town. This notice is not a reservation of a right by the company to extend the town, if it should choose so to do; but it is in the nature of an undertaking by the company, that lots would be laid off, or considered as laid off, in front, corresponding with the general plan, so as to exhaust the entirety of the land, granted to them, up to the channel. This shows that
11 the entire city,”
when completely surveyed out, would reach the channel, corresponding with the general plan, then imperfectly mapped, as plainly as though it had been so expressed. And the purchasers of lots on the strand, (avenue B,) would have been greatly surprised to learn that an unbroken strip had been reserved on the north of them, by which they could be cut off from free access to the channel, which was well known to be the only highway of commerce, that could be reached from the city.
By the Supreme Court of Kentucky, where subjects of this character have been often and fully considered, it was said, “that although the cross streets did not appear to cross Water street, yet such extension prospectively, was considered a virtual and necessary consequence of locating the town at such a point, and on such a river.” (City of Louisville v. Bank of United States, 3 B. Monr. 144; Kennedy’s heirs v. Covington, 8 Dana, 61.)
That the private appropriation of lots on the channel, for wharves, was contemplated, and that streets were to be left open for public use, out to the channel, was abundantly illustrated by the practical action of the founders of the city, in reference to the subject. In May, 1838, about a month after the first sales of lots, four wharf privileges were granted on lots, and the land in front of them to the channel, to wit, to McKenney & Williams, on lots in block 684; to Levi Jones, on lots in block 737; to James Reed, on a lot in block 737; and to M. B. Menard, on lots in block 681. Also, in 1840, one was granted to A. C. Allen, in front of block 735. Upon all these grants, wharves were built out to the channel, and used, without any encroachment upon the streets running to the channel. This uniformity
in appropriating lots, and the ground in front of them, for the erection of wharves, and not that in front of streets, as laid down on the map, at this early day, by those best acquainted with the object and intention of the grant, is extremely significant, as to the want of a right to appropriate the streets; and, on the other hand, it is unreasonable to suppose, that those persons would have embarked in the business of erecting wharves there, had they entertained the least doubt of the right of the city company, to convey the land to them for that purpose, in front of the lots, to the channel. When the lots were sold, mere certificates of purchase were given; and in 1840, deeds were executed by the company to previous purchasers, in which they say, in reference to the notice given at the sale of lots, “ that the said company expressly reserved to itself the right of laying out other lots and squares, with streets and alleys, on the north part of the city, up to the channel of the bay, in conformity with the general plan exhibited at the sale.”
The notice referred to at the sale, amounted to something more than a reservation for the sole benefit of the company. But, admitting that it was a reservation for their benefit, of the right of so laying it off, it does not follow, that they thereby reserved the unqualified right of doing anything else with it, other than that of so laying it off in blocks and streets, according "to the general plan of the town. It was not until 1844, that we find the city company assuming to transfer any interest or right in the ground in front of the streets, pointing to the channel. The manner in which they did so, manifested a want of entire confidence in their absolute right to it. The deed made in 1846, under which Menard claims the ground in front of Street 22, assumes to convey only “ all the title the company has in and to the ground;” and that, under which he claims the ground in front of Street 21, (made as late as 1850,) assumes only to convey a wharf privilege; whereas, the same deeds convey lots, and the ground in front of them, absolutely, without any such qualification. The particular mode in which other
wharf privileges have been granted, on ground in front of the streets, is not stated in the record.
The Act of Congress of the 5th February, 1840, incorporating the City of Galveston, defines its corporate limits, by reference to the patent, as follows : “ All that section of territory, lying between Seventh street and Thirty-first street, including the harbor and anchorage of Galveston, and running from the front line on the bay, as defined in the patent or deed, to the Galveston Company, from the government of Texas, to the gulf between the streets aforesaid.” (4 Cong. 273.) Here is a recognition on the part of the congress, that the title to Menard to the east end of Galveston island, had been made by a definite line, constituting the front line of the bay, in reference to the harbor and anchorage. This is at least evidence, that the government understood the grant to Menard to extend to the channel. And if satisfied that it was excessive, such a confirmatory reference would hardly have been made to it by the legislature. The 14th section of the same act empowers the mayor, with the consent of the council, to appoint wharfingers; as it may be directed by any ordinance. The same power was continued in the Act of 1844.
■ Thus, the congress anticipated that the city might establish wharves, and regulate them; and that such a privilege would not be inconsistent with the recognised fact, that the front line of the bay, where wharves must be built, was made the boundary of Menard’s grant. But this must have been upon the construction, that it was originally intended that the town, to be built on the island, should have streets running to the channel, which would, as it was thought, give the city control there to erect wharves.
By the strict letter of the legislative grant, Menard’s right of property did not extend to the channel. It is extended there, only by resort to the plain intention of the contracting parties. Shall it be extended, then, for the benefit of one contracting party, and not the other ? That would pre-suppose that the object of the government, was to enable him to make a private
speculation. Whatever may have been his object, the only object which, it can be presumed, the government had, was to build a commercial city, and port of entry, on this channel; not to be shut up and taxed for private aggrandisement, but to give it ultimately the means of self-preservation, by a control of the appropriate avenues to the channel of commerce, upon which it was built, whenever it became able to establish and improve them.
The dedication of the streets, does not rest alone on the map or plan of the town, in connexion with the channel of the bay, and the notice proclaimed at the sale, and other auxiliary acts of the interested parties, which, by themselves, might be sufficient ; but also upon the same necessary implication, which extends the right of the city company, to the channel; founded upon-the plainly manifested intention of the contracting parties, in accomplishing the object for which the contract was entered into, and grant made.
As declaratory and confirmatory of this original intention, the legislature of the state, passed the Act of 1851; which enacted, that “ the corporation of the City of Galveston shall have the power and privilege of opening all the streets running north and south on the bay side of said city, to the channel, and shall also have power and right to erect wharves at the end of said streets, as they may deem proper.”
This is the only distinct, direct grant, of absolute authority, which the act contains. The third section, gives power to fill up such portions of the flats, below ordinary low tide, as may be deemed necessary for public purposes. This may be construed to indicate a legislative belief, that Menard’s grant did not extend below ordinary low tide; or it may mean to give such police authority, as may not be inconsistent with the rights of others. Be that as it may, it is evident the legislature sought, by this act, as it has expressed it, merely to relinquish to the city such rights as it possessed, without affecting “ the legal title to wharf privileges, held by persons in said city.” If Menard’s right did not extend below ordinary low-water tide, then this precaution
ary reservation was unnecessary. For, through him alone could they have acquired a legal title, as against the government.
This act is construed by
the
Act of 1852, “ not to alter or impair any of the rights heretofore conveyed to Michael B. Menard, his heirs and assigns, by patent from the late Republic of Texas.” This Act of 1852, again recognises the right of the city to erect wharves at the end of the streets, on the channel. Had the legislature considered that the unqualified right of property was conveyed to Menard, by the patent, out to the channel, and that there had been no dedication of the streets that far, then, of course, the authority given, to erect wharves in the streets upon the channel, would have been in direct derogation of his right. Both of these acts are predicated upon the assumption, that the city has the right to open the streets to the channel, and erect wharves, unless it has lost it. For the purpose of relieving those who have, in good faith, made improvements previous to the Act of 1851, it provides that they shall not be interfered with, upon a certain condition. This is designed to protect them, notwithstanding they may be in the streets, although they might not have a legal title, upon condition that a certain half block of lots, with the land in front, be conveyed to the city. It was intended by the legislature, as an equitable adjustment of contested rights, between the claims of the city company and of the city, by which those who had erected wharves, in good faith, previous to the Act of 1851, in the streets, or on the ground in front of the streets, should be allowed to retain the exercise of wharf privileges there, and an additional privilege be given to the city, as a compensation for the loss, by the entire appropriation of the north half of block 682, and the ground in front of it.
In the case of Bass v. Fontleroy, 11 Texas Rep. 698-708, where an act of the legislature, incorporated a city, and donated lands included therein, for the erection of certain buildings, and the balance to be applied to education, and afterwards the charter was repealed; it was held, that until the trust had
been executed, it was competent for the legislature to change or abolish it; that the conditional trust, for educational purposes, being a public charity, while unexecuted, remained subject to the same legislative power; and that both trusts were extinguished by the repeal of the charter of incorporation; so that a trustee could not be appointed by the court to administer them.
The appropriation of the streets to the channel, in front of those laid off, according to the plan of the town, by the understanding of the contracting parties in its foundation, was necessarily prospective, from the condition of things at the time of the grant, and at the time of laying off the city, and selling the lots; and this right never having been exercised, until the Act of 1851, it will be worthy of consideration, should the question practically arise, whether or not the state legislature did not have the power to make this equitable adjustment, as it seems that the city company have complied with the conditions imposed upon them, by making title to the city for north half of block 682, and the ground in front of it. It is not necessary to determine that question, as it will hereafter be shown.
The right, then, of Menard, and his vendees, to the soil in the flats; in front of the lots, out to the channel, is fully recognised. This may, in the course of time, when they are reclaimed, by being filled up, so as to become the site of business houses, be subject to the right of opening cross streets, when it can be practically done, and where such right may not have been lost. This right to the soil on the channel, in front of the lots, may be devoted to wharves, and the like, without being subject to the control of the public. Lord Hale says:
“
If A. hath, the
rifa,
or bank, of the port, the king may not grant a liberty to unlade upon the bank, or
ripa,
without his consent, unless custom had made the liberty thereof free to all, as in many places it is;
for that would he afrejudiee to the frivate interest of A., which may not he taken from him without his consent.’’
(Angell on Tide Waters, 180; Blundell v. Catterall, 7 Eng. Com. Law Rep. 91; Irwin v. Dixion, 9 Howard, 33.) A restriction to this right of property, common to all property, which it will not be ne
cessary now to notice particularly, is, that being in a navigable harbor, and port of entry, it must not be so used as to be a common nuisance. It is held, at common law, that the king himself cannot authorise a common nuisance.
(Supra,
and see Commonwealth v. McDonald, 16 Serg. & R. 390; Angell on Tide Waters, 199-209, and note.)
The right, also, of the city to the opening, improvement, and use of the streets, running out to the channel, with the right to build and control wharves in front of them, is fully recognised.
Whether this right has been taken away, in whole or in part, by the running of the statute of limitations, is the remaining question. The general rule is, that the statute does not run against .the state. If the right to these streets remained in the state until used, then the state had the power to make the equitable adjustment, contained in the Act of 1852; which would give the defendants a right on easier terms, than they could acquire it, by the statute of limitations. If the right to these streets was conveyed to Menard, with the qualification, understood and annexed, of dedication; and they were dedicated, to the town and public, for common use, then, the same rule does not necessarily apply.
The view entertained, cannot be better expressed, than by a quotation from an ably discussed case in the Kentucky Reports. “ It only remains, then, to enquire how far any portions of the slip in question, have been freed from the dedication to the public, and become private property, by an adverse possession and claim, of individual right for twenty years, before this suit was brought. That the public right, as growing out of the dedication in this case, was subject to be divested and defeated by such possession, admits, as we think, of no doubt. The dedication was not to the use of the commonwealth, as a corporate being, and invested no title or interest in it. The maxim,
nullum tempus occurit regi,
is, therefore, inapplicable. And there is nothing to exempt the right, which vested really in the
town and its citizens, to be upheld by them for the public, from the operation of the statute of limitations, or from the presumptions arising from adverse claim and possession, as they would apply in ordinary cases of private rights, or public easements. (Rowan’s Executors v. Town of Portland, 8 B. Monroe, 259.) This case applies, in many respects, to the one now under consideration, and sustains the view taken of it. (See also Angell on Lim. 392, and note; 1 Cush. Mass. 313, 395; 1 Iredell, N. C. 535.)
Our statute of limitations of five years, confers upon the possessor “full title, precluding all claims,” except that of the gov-eminent, and saving the disability of nonage, coverture, or insanity. (Hart. Dig. 2392.) By our statute, also, the right of entry is barred in ten years. (Art. 2390.) It has been often held, as to ways and water-courses, that if the right of entry be barred, the right of recovery is lost. (Angell on Lim. § 300.) The possession, which will give title to a street, tinder this statute, should not only be under claim of a deed, &c., but it should be adverse; and so exclusive in its nature, as to give notice, unequivocally, of an assertion of individual right to the street. This strictness in the rule, as to possession of streets and other common property, results as a necessary consequence of the character of the property, and the uses to which it is applied. Nothing short of a visible appropriation of it, to the ex-elusion of the public, except at the' discretion of the possessor, can, in such case, be held to be adverse. (Angell on Lim. §§ 390, 392, note, 402, note, 403; Wheeler v. Stone, 1 Cush. Mass. 313; Drake v. Curtis, Id. 395; Williams v. Buchanan, 1 Ired. N. C. 535.)
To apply these principles to the cases before us:—Luffkin’s wharf has been in his possession over five years, under a deed duly recorded. He has used it as his own, and charged wharf-age regularly, and paid taxes thereon. His wharf was built in the street; and the wharf, and houses erected in connexion with it, cover the whole front of Bath avenue; leaving no doubt as to his assertion of exclusive individual ownership, as his own
private property, during all the time. The judgment of the court below, sustaining his defence to the action, is not believed to be erroneous, and therefore it is affirmed.
Menard’s claim is embraced in three grants from the City Company. The first deed included lots, and the ground in front of them; and on that it was originally built, so as not to interfere with the street, running to the channel. The second deed conveyed certain lots, adjoining those in the first deed, and the land in front of them; and also the right of the company to the front of Street 22. The third deed conveys block 740, and the ground in front of it, and also the wharf privileges in front of Street 21. It is to be noticed, that the ground in these streets, is conveyed as tracts distinct from the lots, though embraced in the same deeds. Upon Street 22, there is not
any wharf
or other structure shown to exist, and, therefore, the statute of five years does not apply to it. On Street 21, there is some sort of wharf, or structure in connexion with a wharf, erected since the grant made to it by the City Company, in March, 1851; but it does not appear when, or that it was before the passage of the act of the legislature of December, 1851. Hence, neither the statute of five years, nor the equitable adjustment in the Act of 1852, is shown to apply to it.
The judgment of the court, therefore, so far as it sustained his right to the lots, and the ground in front of them, is correct; and may be so far sustained: and so far as it denied the right of plaintiff to recover, and hold as streets, Nos. 21 and 22, it was erroneous; and so far must be reversed. And the judgment may be reformed, and rendered in accordance with this opinion.
Judgment in the case against Menard, reversed and reformed; in the case against Luffkin, affirmed.
Wheeler, C. J., did not sit in these cases.