Anderson v. Polk

• Decision Date: 22 June 1927
• Docket Number: (No. 4846.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: ANDERSON v. POLK et al.
• Court: Texas Supreme Court

297 S.W. 219

ANDERSON v. POLK et al.

(No. 4846.)^*

Supreme Court of Texas.

June 22, 1927.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by J. E. Anderson against Louis Polk, as County Surveyor of Bexar County, in which the City of San Antonio was impleaded as defendant. Judgment dismissing plaintiff's action was affirmed by the Court of Civil Appeals (291 S. W. 1112), and plaintiff brings error. Judgments of district court and Court of Civil Appeals affirmed.

G. B. Smedley, of Wichita Falls, and Nelson Lytle, of San Antonio, for plaintiff in error.

T. J. Newton, Joseph Ryan, Raymond Edwards, and Marcus W. Davis, all of San Antonio, for defendants in error.

GREENWOOD, J.

Plaintiff in error, Anderson, sued defendant in error, Polk, as county surveyor of Bexar county, to require him, by mandamus or other appropriate writ, to survey a tract of land, which was a part of the former bed of the San Antonio river, and to return field notes to the General Land Office of Texas, in order that plaintiff in error might complete an application to purchase said tract as unsurveyed public school land. Plaintiff in error averred that it was the duty of the county surveyor to implead the city of San Antonio, a municipal corporation, because it was claiming the tract adversely to the state. After the county surveyor had impleaded the defendant in error, city of San Antonio, both the city and the county surveyor presented general demurrers to the petition of plaintiff in error, which were sustained by the district court. On the refusal of plaintiff in error to amend his petition, his suit was dismissed. On appeal, the honorable Court of Civil Appeals at San Antonio affirmed the judgment of the district court. 291 S. W. 1112.

The petition of plaintiff in error, after naming Louis Polk defendant and alleging that defendant had been, since July, 1924, the county surveyor of Bexar county, contained the following averments:

First. The qualification of plaintiff in July, 1924, to purchase the land sued for.

Second. The delivery by plaintiff to the Commissioner of the General Land Office of Texas, about July 9, 1924, of an application of inquiry, there being no prior application, for the purpose of purchasing said land, under article 5432 of the Revised Civil Statutes as amended by chapter 163 of the Acts of the Regular Session of the 36th Legislature, said tract being described in said application as follows:

"Situated in Bexar county, Texas, in the city of San Antonio, Texas, being a portion of what was formerly the bed of the San Antonio river, * * * more particularly described as follows: Adjoining what is known as city blocks Nos. 118 and 186, and lying north of and adjoining the north line of Nueva street and west of and adjoining the west line of Garden street, beginning at a point near the north line of Nueva street where the diversion dam is intersected by the south bank of the abandoned river bed, thence following the said bank of the abandoned river bed up said river bed to a point where the said bank of the abandoned river bed intersects the more northern of the two diversion dams constructed for the straightening of the river at said point; thence following said diversion dam for a south-eastern direction across the old river bed to the opposite bank of said old river bed; thence following the said bank of said old river bed down said old river bed with said bank to the point where said bank of the old river bed intersects the more southern of the two diversion dams; thence following said diversion dam across the said abandoned river bed to the place of beginning."

Third. The tract sued for "was at the time said application was written and filed, and is now, a portion of the unsurveyed land belonging to the public free school land which is subject to sale under article 5432, and that said land was originally a part of the bed and channel of the San Antonio river, which river was, and is, a navigable stream of more than 30 feet in width, and the bed of which stream belonged, and belongs, to the state of Texas; and that the portion of said river bed described in the said application of inquiry is now abandoned and the water of the river does not and cannot flow through it, and could not and was not flowing through it when said application of inquiry was made and filed and at the time application of inquiry was made and filed said portion of said river bed had become and was permanently land. That said river bed became permanently dry land on or about January 1, 1914, by reason of the changing and shortening of the channel of the San Antonio river by the city of San Antonio; said city did by artificial means prepare a new channel and cause the water of the San Antonio river to be diverted from said former river bed to the new channel and did then fill in with earth the former river bed, making the same level with the land contiguous thereto; all as more fully shown by the block maps and plats in the offices of the city assessor and city engineer of the city of San Antonio."

Fourth. The acting Commissioner of the General Land Office advised plaintiff, by letter dated July 16, 1924, "that said tract of land hereinbefore described was not vacant," and thereby the commissioner "declined to recognize the existence of the area hereinbefore described as public school land, and refused to authorize plaintiff to have a survey made, for the purpose of purchasing it as public school land."

Fifth. But for the commissioner's action, plaintiff would have taken all steps to perfect his purchase, as he became entitled to do under article 5432; and, at the time he filed his application, and since, he has always been ready, willing, and able to make all payments and do all things necessary to perfect his purchase.

Sixth. The city of San Antonio, a municipal corporation, in the county of Bexar, state of Texas, is the claimant of said land within the meaning of said article 5432, and that said city of San Antonio is claiming said land adversely to the state of Texas and adversely to the plaintiff, and that it is the duty of the surveyor to implead the city of San Antonio in this suit.

Seventh. Plaintiff prayed "that defendant be cited to appear and answer this suit and that said defendant implead the city of San Antonio as a defendant herein and also implead any other person or corporation who may be claiming said land or any part thereof adversely to the plaintiff or adversely to the state of Texas, and that on final hearing plaintiff have judgment against all of the defendants adjudging and decreeing that the said land is public school land and unsurveyed public school land and is subject to sale under said article 5432, and that it be further adjudged and decreed that the plaintiff has fixed a right to purchase the said land under said article, by taking the several steps therein provided to be taken and that the plaintiff be permitted to file a formal application with the defendant, the said county surveyor, for a survey of said land and that said defendant, the county surveyor, be ordered and directed to make a survey of said land for the plaintiff, in accordance with said law and to prepare proper field notes thereof and to deliver the same to the plaintiff for filing in the general land office, and that it be adjudged that the plaintiff has fixed a right to purchase the said land against any and all defendants in said suit and against all other persons, and that a writ of mandamus issue against said defendant, the county surveyor, and such other writs as may be appropriate to enforce the judgment of the court and that plaintiff have judgment for his costs and for general and special relief."

In addition to the facts averred by plaintiff in error, the courts will take judicial knowledge of certain facts disclosed by Texas history and by public statutes. Dobbin v. Bryan, 5 Tex. 285; Flores v. Hovel (Tex. Civ. App.) 125 S. W. 610; Knight v. U. S. Land Ass'n, 142 U. S. 161, 12 S. Ct. 258, 35 L. Ed. 974.

Among facts thus disclosed are the following:

San Antonio, then called San Fernando de Bexar, was established in the early part of the eighteenth century during the days of Spanish sovereignty, and a grant of land was then made by Spain to said city. Dittmar v. Dignowitty, 78 Tex. 26, 14 S. W. 268.

The Republic of Texas recognized the validity of the grant from Spain and confirmed it by an act of Congress, approved December 14, 1837. The act provided that the bounds of the city "shall include and comprehend all that tract of land, originally granted to and composing said city, with its precincts." The act recognized the right of the city "to sell and alienate such public lots or parcels of land as may lie within their jurisdiction, and to which there is no legal claimant or title." 1 Gammel's Laws of Texas, pp. 1379, 1380, 1381.

This act was construed by this court as passing a title in fee to land within the boundaries of the grant. On this subject, the court, speaking through Chief Justice Stayton, declared:

"Legislation since this country passed from Spanish dominion evidences clearly an intention that the city of San Antonio should hold in fee all lands within its ancient limits which had not before that period become the property of individuals." Dittmar v. Dignowitty, 78 Tex. 27, 14 S. W. 269.

In 1903, the Legislature of Texas passed chapter 44 of the Special Laws of the Twenty-Eighth Legislature. Section 125 declared the chapter to be a public act and required all courts to take judicial notice of its provisions. Section 1 declared that the inhabitants of the city of San Antonio "shall continue to be" a body politic and corporate, under the name "city of San Antonio." Section 2 provided:

"The bounds and limits of said city, within which said corporation shall have jurisdiction shall include six miles square, of which the sides shall be equidistant from what is known as the cupola...