Clark v. Hiles

Citation2 S.W. 356
PartiesCLARK <I>v.</I> HILES and others.
Decision Date14 December 1886
CourtSupreme Court of Texas

Appeal from El Paso county.

Goodrich & Clarkson, for appellant. Davis & Beall and Brack & Stanton, for appellees.

WILLIE, C. J.

This is an action of trespass to try title to lot No. 19, in block 4, the S. ½ of block 10, block 40, and block 41, all situated in the city of El Paso. The suit was brought by the appellant, who claims title under a location and survey made, by virtue of a bounty warrant, on the twelfth day of November, 1872, against the appellees, who claim under a Mexican grant made to Juan Maria Ponce de Leon on September 27, 1827, and under an act of the legislature confirming this grant, approved February 11, 1858. The grant to De Leon was made by the ayuntamiento of El Paso del Norte, in accordance with the direction of the governor of the state of Chihuahua, and describes the land as follows: "The survey began where the new ditch cuts the one excavated by Franciso Xavier Bernal, deceased, at the point of a hill, where I ordered placed a monument of lime and rock. Taking the direction of west to east along the north side, he had one caballeria; and the north measurement was changed. Five hundred and thirty-five varas were added on account of the disproportionate triangular form of the land, because at its center it was only two hundred and twenty-seven varas wide. With this ended the survey of the first caballeria; and the survey of the other continued, following the direction of west to east, on the north boundary, and on the edges of the hills, including all land that could be cultivated; and on the south it is bounded by the river, and has seven hundred and fifty varas, with regard to having increased it two hundred and forty varas, on account of the width which was lacking in the other caballeria."

The act of February 11, 1858, is entitled "An act to relinquish the right of the state to certain lands therein named." The first section relinquished all the right and interest of the state in two caballerias of land called "El Rancho de Ponce," then known as the town of Franklin, to Juan Maria Ponce de Leon. The second section made it the duty of De Leon to have the same surveyed by the district or county surveyor of El Paso county, which survey should in all respects conform to the metes and bounds designated in the original grant; and, upon the return of the field notes to the general land-office, the commissioner was authorized and required to have the same platted on the proper map in his office, and issue patents for the same in accordance with existing laws. The third section provided that the confirmation thus extended should not interfere with the rights of third parties accruing before the passage of the act.

The appellant, who was plaintiff below, contends that the appellees have no right to the De Leon tract of land, except so far as they can claim it through the foregoing act of the legislature. He asserts that the Mexican title is void upon its face, having been issued for land in Texas by the city of Paso del Norte, in the state of Chihuahua. We regard this question as settled in the case of Johns v. Schutz, 47 Tex. 578, — a decision upon the very grant now in controversy before this court. It was there said that it will be presumed that the acts of officers of a former government are within, and not in excess of, their authority. "This presumption," it was said, "in connection with an undisturbed possession of about forty-five years, more than twenty of which elapsed while the land in question was subject to the jurisdiction from which the grant emanated, is quite sufficient to establish the prima facie validity of the grant." The possession in this case was shown to have been as long continued as it was in that, and under similar circumstances, and we see no reason why the principle announced in that case should not be enforced in this. That the grant proceeded from the ayuntamiento of Paso del Norte, in the state of Chihuahua, was held not to vitiate it. The court presumed that this body had the power to make it, in absence of proof to the contrary, of which there is none in the present case.

That the land was within territory declared by the state, on December 19, 1836, to be subject to her jurisdiction, was not considered a matter of sufficient importance to deserve attention. It is true that, on the date last mentioned, Texas, in defining her boundaries, claimed civil and political jurisdiction to the Rio Grande river; but this jurisdiction was never acknowledged by Mexico till the treaty of Guadaloupe Hidalgo, in 1848. The state of Chihuahua exercised jurisdiction over the territory comprising the De Leon grant not only till December 19, 1836, but till it was ceded by the treaty above mentioned. By the eighth article of that treaty the property rights of Mexicans within the territory thus ceded were guarantied by the United States, and they were to be protected in its enjoyment to the same extent as if it belonged to citizens of the United States. Accordingly, our legislature has enacted statutes providing for the protection of these titles, even where they had not been perfected under the Mexican government. Commissioners have been appointed to investigate them as a preliminary step to their confirmation, and the courts of the country have been thrown open for their establishment. The legislature, perhaps on account of the meritorious character of the present title, and the long-continued possession of its owners, confirmed it by statute, without requiring further proof than that body had before it of the justice of the claim. The clear object of the statute was to recognize the validity of the Mexican grant, and to pass all the title of the state as effectually as if it were making a grant de novo; and it confirmed, proprio vigore, the right and title of the grantee, to the extent of the boundaries set forth in his title papers. Ryan v. Carter, 93 U. S. 82. That this relinquishment by the state was a confirmation of the grantee's claim is shown by the act itself; for in the third section it is styled a confirmation, and the rights of third parties, accruing before the passage of the act, are saved and protected. Unless the right of some third party has already accrued, the state alone could take advantage of any defect in De Leon's title to the land described in his grant. This right the state relinquished and quitclaimed to the grantee, and those claiming under him; thereby rendering their title perfect as against the state, and all persons claiming under it, by title subsequently acquired. This brings the action of the legislature precisely within the definition of a confirmation as accepted and recognized, and the act cannot be construed otherwise than as having that effect. See Langdeau v. Hanes, 21 Wall. 529.

This confirmation was not limited or impaired by the provisions of the second section, in reference to a survey of the land. The survey and patent were required to secure certainty in the description of the land, and furnish the owners with the highest evidence of the validity of their claim, to the extent of the boundaries described in the patent. These, according to the statute, were to be the same as those contained in the original grant, and to include precisely the same land granted by the Mexican authorities. The patent would be the highest evidence as to this; but, in case no patent thereafter issued or survey was made, the right of the grantee, or his assigns, was not lost, but they were forced to bring other proof as to the location of the boundaries of the land described in the grant. The survey was of use to the state also, as by it the metes and bounds of the land would be so well defined as to show with certainty what land, by reason of this grant, was not subject to future appropriation. But, if this had been a matter of vital importance, the legislature would doubtless have required the survey and return of field-notes to be made within a limited time, or would have declared the land forfeited unless the survey were made. In cases where the grant of a former government is confirmed, the survey becomes important only where the land has not been previously surveyed so as to segregate it from adjoining territory, or when the description of the land is so vague as to require a survey to designate and fix its boundaries with certainty.

The former was the case in Waterman v. Smith, 13 Cal. 373, cited by the appellant. To each of the persons under whom the parties claimed a grant had been made of a quantity of land to be taken out of a larger tract, without giving the boundaries of the land conveyed, or the means by which they could be determined. The court, in that case, properly held that the party who had first complied with the confirmatory act by having his land surveyed, and obtaining a patent, had the better title to the land included in the survey, though the grant of his adversary was older in date.

In West v. Cochran, 17 How. 403, it seems, from the opinion of the court, that the confirmatory act declared that, when tracts of land had not been previously surveyed, they should be surveyed, and a patent be issued upon these surveys to the interested parties. In that case it was held that the description of the land contained in the patent was binding upon the patentee, because previously to the survey, his claim was unlocated and vague, and he could not claim that his original grant covered a different tract of land.

These decisions are in accord with the views already expressed by us; for in neither case had the land, at the date of the confirmation, been severed by survey from the public domain.

The present case is analogous to those subsequently decided by the supreme court of the United States, where the general principle, which we think correct, is distinctly announced, that where the tract confirmed appears to have clearly-defined...

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