Rudder v. Ponder

293 S.W.2d 736, 156 Tex. 185, 1956 Tex. LEXIS 644

• Court: Texas Supreme Court
• Decided: July 18, 1956
• Docket: A-5192
• Status: Published

Opinions

Mr. Justice Griffin

delivered the opinion of the Court.

This is a suit to establish a vacancy along the Gulf Coast. The land in suit lies on Copano Bay in Aransas County, Texas. The respondents claim the proper boundary of the privately owned land on shore is the common law boundary along the contour line of 0.4 feet above sea level. The State, acting through Land Commissioner, J. Earl Rudder, et al, claims the true boundary line should be in accordance with Spanish and Mexican law. This point is 1.1 feet above sea level. The difference between these two elevations accounts for the vacancy. No party denies that the land covered by the sea under one or the other of the above contentions belongs to the State, and those who claim title from the State. The contest is the proper and legal location of the seaward boundary of the private property.

The case was tried before a court without a jury, and judgment rendered establishing a vacancy as to land claimed by the respondent, Ponder, but denying other claims of vacancy. The judgment of the trial court was that the common law rule as to the location of the shore line was the correct location. Only the Land Commissioner and the Attorney General appealed the trial court’s judgment. The Court of Civil Appeals, in an exhaustive and well-reasoned opinion, affirmed. 275 S.W. 2d 509. In their application for writ of error petitioners say: “The question before the court in this cause concerns the proper location of the coastal boundaries of the William Steele Survey No. 2 in Aransas County, Texas. One related question is whether the common law or the civil law should be applied in determining these boundaries.”

The pertinent facts are well stated by the Court of Civil Appeals as follows:

“After Texas became a Republic, but before it generally adopted the common law, Henry Smith, a transferee of the William Steele Land Warrant No. 840, dated December 8, 1837, caused John Talley, the Deputy Surveyor for Refugio County, to survey what is described in the field notes as T280 acres of land’ which fronted on the bay. Henry Smith, also a transferee of the Van Benthuysen Land Warrant No. 1188, dated December 20, 1837, caused the same surveyor to survey ‘640 acres of land’ adjoining the other tract. The surveys were made and the field notes prepared with plat attached, and the surveyor, in accord with the law then in effect, made his affidavits that the plat, field notes and the survey were made since the first day of August, 1838. These affidavits were dated and signed by the deputy surveyor on September 23, 1839, and on the same date were certified as correct by the Refugio County Surveyor. The trial court found as a fact, based upon presumption, that the field notes on the two surveys were not filed in the General Land Office until after January 20, 1840, when the Republic generally adopted the common law. The patents were issued by Mirabeau B. Lamar during April of 1841.”

From the above statement of facts it will be seen that the land certificates upon which the patents were later issued were dated in December, 1837. This was while Texas was a republic and prior to the Act of January 20, 1840, when the Republic adopted the common law as the rule of decision. However, it will be noticed that the patents were not issued until April, 1841, this being after the adoption of the common law. The State claims that as soon as the certificate was located and the field notes preparéd and certified as correct by the surveyor of Refugio County, the grantee in the certificates became the holder of a vested right of which he could not be deprived later by the adoption of the common law; therefore, the civil law applies. The respondents contend that up to the time of the issuance of the patent, the grantee had only an incomplete, inchoate and equitable right in so far as the Republic was concerned; that the patent having issued after the adoption of the common law that law should govern.

We hold with the contention of respondents and thus affirm the judgment of the Court of Civil Appeals. The Constitution of the Republic of Texas was adopted in March of 1836 and ratified in September of that same year. Article IV, Section 13, provided in part as follows: “The congress shall, as early as practicable, introduce, by statute, the common law of England, with such modifications as our circumstances, in their judgment, may require; and in all criminal cases the common law shall be the rule of decision.” 1 Gammel 1074. With regard to land titles it provided in Article VI, Section 9, that “all grants and commissions shall be in the name, and by the authority of the Republic of Texas, shall be sealed with the great seal, and signed by the president.” 1 Gammel 1076. In addition the Constitution provided, “so soon as convenience will permit, there shall be a penal code formed on principles of reformation, and not of vindicative justice; and the civil and criminal laws shall be revised, digested, and arranged under different heads; and all latos relating to land titles shall be translated, revised and :promulgated(Emphasis added). Constitution of the Republic, General Provisions, Sec. 7, 1 Gammel 1079. Among other things, Section 10 provided “* * * no survey or title which may hereafter be made shall be valid, unless such survey or title shall be authorized by this convention or some future congress of the republic.” 1 Gammel 1079-1081. This Section 10 also provided for the establishment of a general land office “where all land titles of the republic shall be registered,” and for the sectionizing of the whole territory of the Republic. Under the Spanish and Mexican law “sections” were unknown as a measure of land, but land was measured in leagues or sitios, labors and haciendos. A “section” was a common law term. To carry into effect the above constitutional provision to establish a general land office, the Congress of the Republic, on December 22, 1836, established a General Land Office and prescribed the number of “acres” of land to be granted to persons settling in Texas after January 1, 1837. On June 12, 1837, the Land Office Act was supplemented, and on the same day another act was passed instructing the president of the Republic to cause the “vacant lands' of the republic to be surveyed and sectionized in tracts of 640 and 320 acres each.” The Land Office had been closed in the latter part of 1835 due to" the unsettled conditions in Texas because of the struggle for independence from Mexico. The Land Office was not opened again until February" 1, 1838, and then by virtue of Section 39 of the Land Office Act of December 14, 1837.

On December 14, 1837, before the Land Office of the Republic had actually opened, Congress passed an act establishing the land office and “* * * to reduce into one act, and to amend the several acts relating to the establishment of a General Land Office.” 1 Gammel 1404-18. This 1837 Act provided for a county surveyor to locate land certificates upon the vacant public lands in each county; a board of land commissioners to have general charge and supervision of the issuance and location of lands under valid certificates, and to transmit the necessary documents when the preliminary steps had been taken to the Commissioner of the General Land Office. The land commissioner, upon receipt of such papers in proper form, “shall forthwith make out in due form a patent for said land, and record the same in a book to be kept for that purpose,” and send the original patent to the president of the Board of Land Commissioners who, after duly making a record of the same, should deliver the original patent to the party entitled to receive the patent. Section 36. Section 7 of this Act provided that all patents should be issued in the name of the Republic of Texas and under the seal of the Land Office, signed by the president of the Republic and countersigned by the Commissioner, or chief clerk. This act also provided that the county surveyor should receive certain fees for his work in making the survey, “three dollars for each English linear mile actually run.” Section 37. This was the first time the English or common law mile had been provided as a measure of payment. All previous laws had provided payment for the Castillian, or metric linear mile — the Spanish and Mexican measurement. At all times since this act of 1837, all land matters have been set out in our statutes in terms of the common law, rather than the Spanish or Mexican law. Thus the Congress of the Republic of Texas in 1837, 1840 and 1841, in regard to land titles, carried out the command of Article IV, Section 13 of the Constitution of 1836 to introduce the common law of England by statute as early as practicable.

The case of Warren v. Shuman, 5 Texas 441, gives a concise history of the land legislation of the early days of the Republic. It is there stated:

“The Act adopted Jan. 29, 1840, (Acts of 1840, p. 139,) authorized the appointment of Commissioners to ascertain and report what certificates had been issued to legal claimants; and the Commissioner of the General Land Office was prohibited from issuing a patent upon any survey ‘which shall not have been, or may thereafter be made by virtue of a certificate returned as genuine and legal, by the Commissioners appointed under this Act:’ and a patent issued contrary to the provisions of the Act, is declared to be null and void. By an Act approved February 5, 1840, (Acts of 1840, p. 161,) locations and surveys, from and after the first day of May thereafter, were prohibited on certificates not certified as having been reported to be genuine and legal: and all surveys made contrary to the intent and meaning of the Act, were declared to be null and void. The Commissioner of the General Land Office was, by an Act of the 19th of January, 1841, required to issue patents upon all claims which had been, or might thereafter be recommended by the investigating Board of Commissioners. By the Act of Congress of the 4th of February, 1841, (Dallam, 334,) individuals holding unrecommended certificates, were authorized to file their petitions in the District Court, setting forth the grounds of their claims; and, on a verdict of the jury in their favor, they were entitled to a certificate to that effect: and the Commissioner of the General Land Office was required to issue a patent on said claims, in the same manner as if said claims had been recommended as genuine and legal by the Board of Commissioners, appointed under the Act to detect fraudulent land certificates. * * * (Emphasis added.) Warren v. Shuman, supra, p. 450.

Until such time as a patent had been issued by the Republic the owner of a valid and legal certificate for a certain amount of land, or an owner who had located this certificate on the unappropriated public domain, as against the Republic, had only an imperfect or inchoate right to receive such land. This was an equitable right and one which so far as third parties were concerned was a superior right to all other claimants locating after date of such owner’s original location.

In discussing the time at which the State gave up its title to public land, Mr. Justice Lipscomb, speaking for the Court in the case of Hart v. Gibbons, 14 Texas 213, at p. 215, says:

“* * * The question cannot be regarded as open in the Court at this time, as, since the case of Hosner v. DeYoung, (1 Texas R. 764) it has been the uniform doctrine of the Court, that the State did not surrender the dominion and control of the public domain, until final and complete title had been issued. * * * No incipient or incomplete title, acquired during that interval, could present any legal bar to a restoration of the rights of the first locator. If the patent had issued to the appellant (the junior locator) before the passage of the relief law, the patent would have given him a valid title, not to be affected or impaired by the Act of the Legislature. * * * The pretention that an incipient title to a part of the public domain creates such a vested right as to place it beyond the control of legislation, cannot be sustained as a conclusion, either from the legislation or from any judicial decision. (Emphasis added.)

“It has been contended that the authority given by Statute (Hart Dig. Art. 3230) to sue for land on which the plaintiff had located a valid certificate, is a recognition of the fact that the fee, by such location, had passed from the State. This is not a fair inference. It amounts to nothing more than this, that the person holding the incipient title shall recover and hold against all who cannot show a better title, but does not conclude the State. It is competent for the State to say what degree of title, less than the fee, shall be sufficient to sustain an action for the protection of the rights of the party, whatever they may be, against those who have not an equal or superior right. This the State may well authorize, without a relinquishment of the fee in the land sued for.”

The case of Hosner v. De Young, 1 Texas 764, in discussing the right of a certificate holder to force the county surveyor to survey land out of the unappropriated public domain, Justice Lipscomb said:

“That the fee, being in the Government until it passes into a perfect grant, no suit can be sustained, to compel the government to divest itself of the title, until the political authority has prescribed the mode in which it shall be done; that in all such cases, the political authority can establish, alter and modify such regulations from time to time, as may be deemed necessary in maturing an imperfect into a perfect title; that this control is necessary to the protection of the public domain, and a consequence resulting from the fee being in the Government.”

To the same effect is the case of League v. De Young, et al, 2 Texas 497, 500. The League case was affirmed by the United States Supreme Court in 52 U.S. 185, 13 L.Ed. 657.

• ■The case of Keith v. Guedry, 103 Texas 160, 122 S.W.. 17, and 125 S.W. 5, was a contest between two certificate owners as to which had the better title to the common land covered by both certificates. Guedry held his title under John P. Wilds, whose original certificate and survey and field notes on the land in conflict was prior in time to the certificate and field notes and patent isued to John M. Bowyer, under whom-Keith claimed title. The Wilds certificate was isued on January 15, 1845, in lieu of a certificate dated July 4, 1839 by- the Board of Land Commissioners of Jefferson County, Texas. The 640 acres covered by the certificate was surveyed April 30, 1856 by the county surveyor of Jefferson County, and the field notes recorded in the surveyors’ office on April 30, 1856, and filed, together with an attached map showing the location of the land, in the General Land Office on July 14, 1856, but no patent ever issued thereon. On March 27, 1886 these field notes were endorsed in pencil as being in conflict with the John M. Bowyer survey. .The Bowyer claim was by virtue of a certificate issued on January 24, 1879, in lieu of a certificate to Bowyer dated August 9, 1851. The Bowyer lands were surveyed March 30, 1881. The field notes of this survey were filed in the General Land Office on April 12, 1881. On October 25, 1881, these field notes were endorsed as in conflict with the Wilds survey, and on November 9, 1883 endorsed as having been corrected. Patent was issued on these field notes on July 2, 1886, and duly recorded in Hardin County (originally Jefferson County) in 1897 where the land was then situated.

By statute of August 30, 1856, it was prescribed that all surveys and field notes, in the same condition as Wilds was, should be returned and filed in the General Land Office prior to August 1, 1857, and upon failure to do so, the survey should be forfeited. Wilds’ survey and certificate were not returned and filed within the time prescribed. Upon trial, judgment was rendered by the trial court for Guedry, the claimant under the Wilds title. This was affirmed by the Court of Civil Appeals. The Court of Civil Appeals held (1) that the issuance of the certificate to Wilds constituted a contract between him and the State under which he was entitled to .appropriate 640 acres of the public domain, and (2) that the location and .survey of the land and return of the field notes to the General Land Office under that certificate constituted a vested right in the owner of it to that survey of land. All these things having been done prior to. the act of August 30., ■ 1856, it was claimed said act could not divest Wilds of-his ownership of the 640 acres.-The Supreme Court reversed and remanded the cause to the trial court upon the holding:

“It is true that a survey under the Wilds certificate and the return of the field notes and certificate would have constituted a vested right in that land to the extent that it secured to the owner of the certificate a right to perfect his imperfect title to the land in the manner and time prescribed by law, or that should thereafter be prescribed; but it did not invest the owner with the title to the land that remained in the state until the patent should be issued. In order to complete his title Wilds, or his assignee, was required to present the certificate to the Commissioner of the General Land Office and procure a patent for the land. The location and survey could not have been perfected into full title without presenting the certificate to the Commissioner of the General Land Office and depositing it with him. * * * .”

See also Note 6 to 1 Texas Rep. (reprints) 766, and authorities therein cited; Jones v. Menard, 1 Texas 771; City of San Antonio v. Strumberg, 70 Texas 366, 7 S.W. 754; 9 Texas Jur. 304.

When the Republic of Texas adopted the common law of England on January 20, 1840, it adopted the common law as to the boundary of the sea touching the William Steele Survey No. 2. This boundary was the mean high tide of the sea waters. The title of those claiming under the William Steele and Van Benthuysen certificates being only an incomplete and inchoate title on January 20, 1840, when the common law was adopted, their rights became complete and superior to the State in April, 1841 when the patents were isued by the Republic. On this last date the common law was the rule of decision and governed the fixing of the shore line. The application of the common law to the boundary as of date of issuance of the patent does not take any property away from those holding the land certificates. It gives these holders more land than they would have received if the civil law shore line applied. As said in the case of Barney v. City of Keokuk, 94 U.S. 324, 24 L.Ed. 224, if the republic chose to resign to the riparian proprietor rights which had theretofore belonged to the republic in its sovereign capacity, it is not for others to raise objections.

The facts in this case showing neither of the certificates involved herein were issued and located in 1836 when the Congress of the Republic established the land office and enacted a comprehensive law governing land titles and patents, nor that any locations were made on December 14, 1837 when Congress placed all the acts regulating the Land Office and land titles in one act, all rights of the State were governed by the common law after these dates. No patent had been issued when the Acts of 1840 and 1841, referred to above, were adopted. These Acts required previous certificates and surveys to be confirmed by the Board of Land Commissioners before patents could be issued on such certificates and surveys. These provisions were not in the civil law in force while Texas was under the rule of Mexico, but constitute a new and independent authority of the Republic of Texas over her public lands.

Petitioners contend that Section 2 of Act of January 20, 1840, adopting the common law, specifically recognized that the civil law affecting public lands remained in effect. We do not agree. Section 2 provides for the repeal of all laws in force in the Republic prior to September 1, 1836, “except * * * such laws as relate exclusively to grants and the colonization of land in the State of Coahuila and Texas, * * This exception does not apply to our case for this land was not a grant and colonization of lands in the State of Coahuila and Texas. The certificates were not isued until December, 1837, when Texas was a republic; the survey was not made until a date between August 1, 1838 and September 23, 1839.

The cases cited by petitioner to support his theory of the survey of the land being a vested right not subject to be changed by the State are all cases between private individuals to determine which had prior rights, and do not involve the rights of the Republic of Texas.

The trial court found that the field notes of neither of these surveys locating either certificate were filed in the General Land Office until after January 20, 1840. The fact that the Land Office Act of 1837, Section 36, provided that as soon as a certified copy of the field notes and plat had been filed with the Board of Land Commissioners and the legal fees paid, the president of the Board shall “* * * transmit the field notes to the commissioner of the general land office, who shall forthwith make out in due form a patent for said land * * record the same in a book in his office, and transmit the original to the president of the Land Board of the county where the land lies, who was required to enter a minute of the issuance of the patent on his record, and deliver the same to the party entitled to receive same; plus the further fact that no patent had been issued up to the Act of January 29, 1840, providing for screening of surveys and certificates by the Board, established by such Act; plus the further fact that patent was issued April, 1841, a short time after the Act of January 19, 1841, requiring patents to be issued on all certificates and surveys which had been or might thereafter be recommended by the Board set up by the Act of January 29, 1840, is some evidence that the field notes of the located surveys were not filed in the General Land Office until after January 20, 1840, and thus support the trial court’s finding to this effect. This finding has been affirmed by the Court of Civil Appeals. Under all the facts and circumstances of this case, we cannot say there is no evidence in the record to support such finding, and therefore we cannot overturn the trial court’s decision.

The State contends that the true boundary, regardless of which rule of law is applied, was “the toe of the bluff” seaward from and on this land. The trial court held that the line along the shore of Copano Bay was a meander line. Stover v. Gilbert, 112 Texas 429, 247 S.W. 841, 843; 11 C.J.S. 573, Sec. 30b. The Court of Civil Appeals has held the evidence sufficient to support such finding. In this Court the State contends all of the evidence shows that the toe of the bluff is the civil law shore line. We hold that the civil law shore line is not the correct boundary. Also, the evidence is to the effect that the civil law shore line is on contour 1.1 feet above sea level, but does not show that the contour line is the same line as made by the toe of the bluff.

The line along the sea being a “meander line,” the field notes thereof do not make the outer boundary, but the outer boundary is the shore line, and in our case is the shore line as determined by the common law, or on the 0.4 foot contour above sea level.

The judgments of both courts below are affirmed.

Opinion delivered July 18, 1956.

Mr. Associate Justice McCall not participating.