Edgar v. Galveston City Co.

• Decision Date: 01 January 1877
• Citation: 46 Tex. 421
• Parties: ALEXANDER EDGAR v. THE GALVESTON CITY COMPANY.
• Court: Texas Supreme Court

46 Tex. 421

ALEXANDER EDGAR

v.THE GALVESTON CITY COMPANY.

Supreme Court of Texas.

1877.

APPEAL from Galveston. Tried below before the Hon. A. P. McCormick.

This was a suit for the league of land on which the city of Galveston is situated. A first suit by the same party was before this court; and the judgment of the court below, sustaining a demurrer to the petition, was affirmed by this court. (21 Tex., 302.)

This was a second suit, brought March 24, 1859, upon the same allegations of facts, substantially as the first, so far as it sought the recovery of said league of land, which were, in substance, that Edgar, with his family, emigrated to Texas in 1835; settled as a colonist in Austin's colony; was a citizen at the date of the Declaration of Independence; was a soldier in the Texas army; that he was entitled to a league of land as a headright; that in April, 1836, he settled on the east end of Galveston island, and improved about twelve acres of land, with a view to a title to his headright league, including the same, to which he claimed right by virtue of the act of the Consultation, and of the Constitution, and of the general land law of the Republic; that certificate for a league of land was issued to him February 3, 1836, and was approved by the traveling board; that Galveston county was created May 15, 1838; that on the 8th of July, 1839, he placed his certificate in the hands of the surveyor of Galveston county, to be surveyed, to include his said improvements; but owing to the want of courts and the neglect of the surveyor and officers of the Government, but without fault or neglect on his part, no survey was made; that in May, 1840, during his absence from the city, Gail Borden, agent of the Galveston City Company, obtained the possession of his said certificate, by a transfer thereof from his wife and one Walbridge, acting as his agent, for city lots, then of the value of $28,295, a part of which were conveyed to Walbridge, and for the remainder the company gave certificates of sale to his wife; that he had been willing, and a few days before agreed, to convey his certificate and claim to said league of land for the above lots, and, in addition thereto, for a thousand dollars in cash, and two lots with wharf privileges, but he never authorized or ratified the above sale, but rejected and denounced it, and that no deed had ever been made to Mrs. Edgar or himself; that on account of his poverty, until May, 1842, he could not bring suit, which he then did, to recover said league of land; that the demurrer was sustained to his petition, and in 1858 the Supreme Court affirmed the judgment, and he again brought suit March 24, 1859.

By way of replication to the answer, setting up a legislative grant of said league and labor of land to M. B. Menard, by an act of the Congress of the Republic of Texas, passed December 9, 1836, and a patent to the same, by the President of the Republic, January 25, 1838, the petition alleged that Menard did not pay for the land, and that he and White defrauded the State. The petition contained an independent allegation of ownership of the league of trespass and wrongful possession thereof by defendants, and a prayer for judgment, restoring the property, with damages for its detention.

The petition also prayed, 1st, for the recovery of the league of land; or, 2d, for a good title for the lots conveyed to Walbridge, and for which certificates of sale were given his wife, alleged to be of the present value of $200,000; or, 3d, for damages, to the amount of $200,000; or, 4th, generally, for such judgment as his case entitled him to.

Demurrer to the original and amended petition, setting forth the grounds thereof very fully; also special demurrer to such parts of the petition as sued for alternative special relief, were filed by the defendant and sustained by the court; from which ruling of the court below, this appeal was prosecuted.

Spencer & Stewart, for appellant, cited, with reference to the action of the court on the demurrer, Graham v. Vining, 1 Tex., 672;Warner v. Bailey, 7 Tex., 519;State v. Williams, 8 Tex., 264;10 Peters, 264;2 Johns., 465;3 Johns., 366;11 Johns., 482;3 Cranch, 229;Williams v. Randon, 10 Tex., 77;Zacharie v. Bryan, 2 Tex., 276. On the subject of plaintiff's right to his second action, they cited Dangerfield v. Paschal, 20 Tex., 536, and insisted that it was not controlled by Hughes v. Lane, 25 Tex 356. On this subject they said: “The case of Dangerfield v. Paschal, 20 Tex., interprets the statute according to its spirit, and allows the plaintiff the benefits of his second action, although there was no ‘verdict’ of the jury. And although the case of Hughes v. Lane, 25 Tex., at first blush, might seem to favor an entirely rigid, inflexible, and literal construction of the word ‘verdict’ in the statute, yet from a close inspection of that case, that it was one in which the plaintiff, by his own gross negligence, had failed to file the record in the Supreme Court in time; and the defendant filed the record and had an affirmance of the judgment; and afterwards, when the plaintiff filed, on writ of error, the record, the cause was dismissed by the Supreme Court, because the plaintiff had neglected to give any notice of appeal; and when we look at the said case, it is manifest that the result of the decision was right, but the dicta and reasoning employed were extra-judicial, and not at all necessary to the decision of the case. And while we recognize the force of the maxim, stare decisis, and venerate the judicial fame of the distinguished judge who delivered the opinion in the case of Hughes v. Lane, if it is considered as deciding that none other than a judgment upon a verdict entitles a plaintiff to his second action, then we would most respectfully suggest the propriety of its not being regarded as having established a precedent not to be modified.”

Ballinger, Jack & Mott, for appellee.

I. The appellant has no cause of action to recover the league of land sued for, on which the city of Galveston is situated.

The case of Edgar v. The Galveston City Company, 21 Tex., 302, was elaborately argued, and a full and careful decision made on all its points by the court, Chief Justice Hemphill delivering the opinion of the entire bench, including Justices Wheeler and Roberts.

(Counsel, after invoking attention to the syllabus in that case, continued:)

That Galveston Island, not subject to colonial settlement throughout the period that it remained, under the Mexican Government, a military post and place of refuge for fugitives from Mexican invasion during the War of Independence, did not become a part of the public domain, within the purview of any of the contemporaneous laws upon which a soldier of the Republic, taking refuge or even performing service there, could improve the occasion to obtain a preference, a pre-emption, a location upon it of his headright league of land,--is a proposition which we do not think can now be shaken.

But even if this were not so, the power of the sovereign Government, as against this mere locative preference, to withdraw any particular locality from the exercise of the right, or to make disposition or sale of it, is settled, not only between these parties, (in 21 Tex., 302,) but is the settled law of this court, (State v. Delesdenier, 7 Tex., 76;Smith v. Taylor, 34 Tex., 607, and of all American courts. Wilcox v. Jackson, 13 Peters, 498.)

The preference right of plaintiff, even if it once existed, was expressly limited to the period of six months. Says this court: “Had there been no previous title, he should have located within the six months; and title having been issued to Menard, he should, within that time, have filed his certificate and application, otherwise he could not have the shadow of a pretense to contest Menard's title, by virtue of his claim to the preference right, under his improvements. He did not file his certificate for location until seventeen months after the opening of the land office, and had then forfeited his claim to the land, if any he ever had.” (21 Tex., 332.)

II. The case is of that class, above all others, in which courts recognize their duty to adhere to a decision which has become a rule of property to a community. The decision of the court, made seventeen years ago, became a rule of property to a community then of about three thousand persons, but which has since increased to thirty thousand, spreading over the territory, the title to which was settled.

The court will not overturn a well-considered decision, where valuable rights and interests have become vested under it, although they may consider it to be erroneous. (Ram on Legal Judgment, ed. 1871, 237.)

It is important that, when a question of this kind has become once settled, it should not be disturbed, for it grows into a landmark of property. (Kent., C. J., 6 Johns., 54; Beauregard v. City of New Orleans, 18 How., 205.)

III. A first suit, on which a demurrer by the defendant is sustained, does not stop limitation, which continues to run until the second suit. (Hughes v. Lane, 25 Tex., 356.)

The plaintiff's petition in this suit was filed March 24, 1859. It alleges his peaceable and continuous possession of part of the land claimed by him from 1836 to the present time. He is not disturbed, and seeks no relief as to that part of the premises; but he shows that the Galveston City Company, in May, 1842, took adverse possession of all the remainder of the league, and has ever since occupied and held it. A lapse of seventeen years would bar any right of action he could have possessed. This ground of demurrer is specially relied upon.

IV. The petition contains an alternative prayer, that the City Company make to plaintiff a title to certain lots, part of which, he says, were conveyed to his agent, Walbridge, and a part to his wife--certificates of purchase having been issued to her, instead of deeds. This took place in 184...