Mitchell v. Bass

33 Tex. 259

• Court: Texas Supreme Court
• Decided: July 1, 1870
• Status: Published

Opinion

Walker, J.

This action was brought by Bass against Mitchell, to try title to a strip of land, supposed to be about one hundred varas in width, lying between labors one and two, adjoining the town of G-onzales. Bass claims under a State patent, granted to him April 4, 1856. The jury found for the plaintiff, and the defendant appealed. The defense was a plea of not guilty, and a special answer setting up that the land was.not subject’ to entry; that the labors numbers one and two called for a public highway as the boundary between them; that the highway had been dedicated to the public use by the authorities of Mexico, or the State of Ooahuila and Texas; that by non-user, the public had lost the easement, and by the common law the road bed had reverted in fee to the contiguous owners. The case was appealed to this court and decided in 26 Texas Reports, 372. The defense, upon the facts proven, would have been good according to current authorities at common law; but the queries suggested by the court on the former hearing, to-wit: “Does the foregoing doctrine of the common law apply to grants extended by the government of Ooahuila and Texas to colonists in 1831 ? Is the rule of the civil law in like cases the same as that of the common law ? or, according to the former, does the soil of the public highway remain in the public ? These are questions of some difficulty, but they must now be-answered, for the law in force in 1831, at the time when the grants were made to labors numbers one and two, must govern this case. This was the civil law, and by that law the title remained in the sovereignty to all roads and highways; and upon abandonment of the service reverted to the public. If so, in this case the land was vacant, and Bass’s patent from the State entitled him, upon the evidence in the case, to recover. (See Arts. 179 and 180, Schmidt’s Laws of Spain and Mexico; 4 Martin, La., 97; 5 La., 132; 14 Tex., 173; 19 La., 62; 3 Annual La., 482.) There are no other matters appearing upon the record which require notice. The judgment of the district court' is affirmed, and restitution of the premises ordered.

Affirmed.