Cowan v. Hardeman

• Decision Date: 01 January 1862
• Citation: 26 Tex. 217
• Parties: D. C. COWAN AND OTHERS v. D. HARDEMAN AND OTHERS.
• Court: Texas Supreme Court

26 Tex. 217

D. C. COWAN AND OTHERS

v.D. HARDEMAN AND OTHERS.

Supreme Court of Texas.

1862.

The object and purpose of the proviso to the fourth section of the act for the relief of James Erwin and others, passed June 3, 1837, was simply to reserve to the republic the islands, salt springs, gold and silver mines, copper, lead and other minerals; and such reservation carries with it the right to enter upon lands located by individuals in which minerals or salines may be found, and to dig for and carry them away, and all other such incidents as are necessary to make the reservation available to the state.

But it was not the intention of that act to prohibit the location and appropriation by individuals of lands in which minerals or salines may be found, nor is it to be construed to enact such a prohibition.

The construction now placed on the act under consideration is the construction which all branches of the government have adopted ever since its enactment; and if it were held that the act in question did prohibit the location of lands containing minerals, salines, etc., consequences would ensue not less embarrassing to the public than subversive of the titles under which the great mass of the lands hitherto granted by the government have been held.

The act for the granting of land certificates to colonists of Fisher and Miller's colony, and the subsequent act for the issuance of patents on such certificates are not in violation of the ordinance attached to the constitution of 1845. While that ordinance prohibits legislative relief to the colony contractors, it cannot be held to prohibit the legislature from granting a part of the public domain to such colonists as had not become actual settlers within the colony, equally with any other citizens who might be made recipients of its bounty. The case of Causici v. La Coste, 20 Tex. 269, cited and approved. [[[[[

Mr. Justice More intimates an opinion, as an individual member of the court, that the proviso to the fourth section of the act of June 3, 1873, for the relief of James Erwin and others, was limited to the grants made by that act.

Mr. Chief Justice Wheeler is of opinion that the proviso in question was simply declatory of the previous laws applicable to all grants, and was introduced into the act out of the abundant caution to preclude the inference that the laws reserving the islands, minerals and salines to the state, were repealed in favor of the beneficiaries of the act. He is further of opinion that although a patent for lands containing minerals, etc., is not void and cannot be impeached by a mere intruder, yet the state may avoid it to any extent in the exercise of its reserved rights to such minerals, etc.

APPEAL from Burnet. Tried below before the Hon. Nat. M. Burford.

This was an action of trespass to try title and for damages, brought by D. Hardeman, William P. Hardeman and William B. Coffee, against David C. Cowan, Gideon Cowan and James Alexander.

The land in controversy was a tract of six hundred and forty acres, to which the plaintiffs derived title by purchase from Peter Pauly, a colonist of Fisher's and Miller's colony. The land was granted to plaintiffs as assignees of Pauly, on the 18th of September, 1855, pending this litigation, and they set up their patent by an amended petition. In their original petition, they alleged that there was a valuable saline upon the land of which the defendants had wrongfully taken possession, and from which they were manufacturing salt, to the damage of the plaintiffs.

The defendants demurred generally, and answered with a general denial. The demurrer was overruled. At the trial the plaintiffs admitted that their vendor, Pauly, had never settled on the land in controversy. The defendant offered evidence to prove that the “saline” mentioned in the petition was a salt spring, but the court excluded the evidence.

The court charged that the plaintiff having read in evidence a patent for the land and the defendants failing to introduce any species of title, the jury were authorized to find for the plaintiff. There was verdict and judgment for the plaintiffs; a new trial refused, and defendants appealed.

Among the errors assigned was the overruling of the demurrer to the petition, it appearing on the face of the petition that there was a salt spring upon the land, which brought the land within the prohibition of the proviso to the 4th section of the act of June 3, 1837. Other errors were assigned to the admission in evidence, against the objections of the defendants, of the certificate to Pauly and the patent thereon to the plaintiffs, his assigness, which, as contended, were void because Pauly never settled on the land, and because the laws authorizing the issuance of such certificate and patent were unconstitutional and void by reason of the ordinance attached to the constitution of 1846, concerning colonization contracts.

A. J. Hamilton, for appellants, insisted that the proviso already mentioned was “an unqualified reservation and would defeat the title or claim of the appellees, even if the patent had issued to them--especially so, if they had knowledge of its character at the time of its issuance. It would be, in such case, a patent obtained by the grantees in fraud of the law, contrary to its express provision, and therefore void.” 7 Tex. 76;9 Cranch, 99;6 Wheat. 577;2 How. 284; 10 Bac. Abr. 374; 7 How. 89.

J. A. & R. Green, and Hancock & West, for appellees.

MOORE, J.

The main question for our decision in this case depends upon the construction that must be placed upon the proviso in the fourth section of the act for the relief of James Erwin and others, passed June 3, 1837, which reads as follows: “Provided, that no lands granted by this government shall be located on salt springs, gold or silver mines, copper or lead, or other minerals, or any island of the republic.”

By this provision of the statute it is contented, as we understand appellants' counsel, that the islands and all lands containing minerals were separated from the mass of the public domain, and were thereby withdrawn from individual appropriation by the location thereon, of the land scrip issued by virtue of said act of June 3, 1837, or by any other character or certificate or claim to land. And that, it appearing from the petition filed by the appellees, who were plaintiffs in the court below, that there was “ a valuable saline ” upon the six hundred and forty acres of land, for which suit was brought; the patent therefor, which was granted to appellees as the assignees of a certificate issued to a colonist of Fisher and Miller's colony, was absolutely null and void.

This proposition, if correct, must lead to startling and unexpected consequences, not less embarrassing to the public than subversive of the titles under which seven-tenths of the lands granted by the government have been hitherto held. If all the lands in the state in which any minerals can be found were withdrawn from location, how much of the public domain was left subject to appropriation? A very superficial observation or knowledge of the country must convice us that the amount left subject to location would fall far short of satisfying the certificates and scrip heretofore issued by the state. Whose title would be secure? The homestead of one of the heroes of San Jacinto or Bexar, the seat of honest toil, and held by patent since the first organization of the land office, without the slightest suspicion as to the validity of his title, or that the land was of the least value except for its agricultural products, may to-morrow be found to have beneath its surface strata of coal or a mine of gold, and his title must consequently be held to be absolutely null and void; having been issued for land which the surveyor had no authority to survey, or the commissioner of the general land...