Galveston Cnty. v. Tankersley

• Decision Date: 01 January 1873
• Citation: 39 Tex. 651
• Parties: GALVESTON COUNTY v. B. S. TANKERSLEY ET AL.
• Court: Texas Supreme Court

39 Tex. 651

GALVESTON COUNTY

v.B. S. TANKERSLEY ET AL.

Supreme Court of Texas.

1873.

1. The title of a county to school lands, the patent of which it had received from the state before the adoption of the present constitution, was not divested by section 8, article 9, of that instrument; that section could only affect such school lands as had not been patented.

2. Where the meanders of a river are called for in a survey, and also courses and distances, the former will control.

ERROR from Hood. Tried below before the Hon. Charles Soward.

Galveston county brought this suit for the purpose of recovering possession of a part of one of her leagues of school land, upon which she alleged the defendants were trespassing. The defendants denied the trespass, and claimed severally portions of the land which they occupied as pre-emptors, alleging that the pre-emption claims occupied by each of them were outside of the boundaries of plaintiff's land. The patent from the state to Galveston county described the land sued for as one league of land, beginning at the northeast corner of a survey made by Jose A. Hernandez, from which a Spanish oak marked J bears south 57° east 3 varas, another marked I bears south 59° east 3 varas; thence up the river, with its meanders, north 60° east 850 varas, south 43° east 1,700 varas, north 57° east 1,150 varas, north 15° east 1,720 varas, north 41° west 2,100 varas, north 31° west 1,410 varas, to the northeast corner at the mouth of a branch, from which an elm marked M bears south 62° east 3 varas, and a Spanish oak marked N bears south 54° east 3 1/2 varas; thence south 60° west at 9,220 varas, the northwest corner in prairie; thence south 30° east at 2,300 varas, Squaw creek at 2,500 varas, the southwest corner, from which an elm marked T bears south 62° east 90 varas; thence north 60°>>>> east 145 varas, recrosses Squaw creek at 5,550 varas, the beginning.

The evidence showed that if the league be surveyed on the ground, making the Brazos river the line from the beginning corner to the second corner at the mouth of the branch on the river, then the land claimed by defendants would be included in and conveyed to plaintiff by the patent. But if the call for the courses and distances of the meanders of the river are followed, in disregard of the call for the river, then they were not upon the land patented to the county.

Verdict and judgment for defendants, Tankersley et als.

S. H. Renick, for plaintiff in error. 1. The doctrine is too well settled to admit of any controversy at this late day, that calls for natural objects, such as a river or mountain, will control calls for course and distance. Urquhart v. Burleson, 6 Tex. 503;Robertson v. Mosson, 26 Tex. 248;Hubert v. Bartlett and Heirs, 9 Tex. 97, 103;Anderson v. Stamps, 19 Tex. 460.

The cases of Booth v. Strippleman and Booth v. Upshur, 26 Tex., recognize the rule in its full extent, that natural objects control calls for course and distance; and they only decide that an imaginary or unmarked line, called for in a place where it never existed, cannot control calls for course and distance; but in Booth v. Strippleman one line was prolonged 540 varas beyond the distance called for, so as to reach a natural object called for, viz., Angelina lake.

The constitution does not divest the title out of the counties.

The first clause of section 6, art. 9 (Pas. Dig. p. 1120), only declares “that all the lands and other property heretofore set apart and appropriated, or that may be hereafter set apart and appropriated, for the support and maintenance of public schools, constitute the public school fund.” This section does not include the school land granted to the counties. Three leagues of land were granted to each county for the purpose of establishing a primary school or academy in said county (Pas. Dig. art. 3436)--not a public school. Afterwards a fourth league was granted, to be sold for the purpose of procuring “scientific endowment” (apparatus), one-half to be given to a primary school or academy, and the remainder of the endowment to be equally distributed among the common schools of the county. Pas. Dis. art. 3476. So that none of these lands are touched by this section.

Section 8, article 9, of the constitution, provides that “The public lands heretofore given to counties shall be under the control of the legislature, and may be sold, under such regulations as the legislature may prescribe; and in such case the proceeds shall be added to the public school fund.” 2 Pas. Dig. p. 1121.

I contend that this section does not divest the title out of the county of Galveston, but only empowers the legislature to have the lands sold, and to add the amount realized at such sale to the public school fund, and until the legislature acts the title remains in the county.

But if the constitutional provisions above referred to were intended to divest the title to the school lands, granted to the counties in their corporate capacity, out of them, and vest it in the state, then we contend that those provisions are in violation of the constitution of the United States, and so far void.

Each organized county is constituted a corporation. Pas. Dig. art. 1044. And all deeds, grants and conveyances made to a county by its corporate name, are effective and valid to convey all such interest as the grantor possessed. Pas. Dig. art. 1051. And all contracts made with counties are valid. Pas. Dig. art. 1053. And a county is capable of taking and holding property in trust under a will. Bell County v. Alexander, 22 Tex. 359.

The counties are by these sections as fully empowered to contract as a natural person. And we cannot perceive any reason why their contracts are not as much protected from interference on the part of state authorities by the constitutional prohibition upon the states as any other contracts. The people of the United States have declared, in the most authoritative manner, “That no state shall pass any law impairing the obligation of contracts.” Const. art. 1, sec. 40.

Invoking the salutary principle embodied in these provisions as a broad shield for the protection of the rights of counties and other corporations, as well as individuals, let us proceed:

1. To inquire whether or not the grant of lands to the county of Galveston for the purpose of establishing a primary school or academy in the limits of that county is a contract. Of this there can be no doubt. The land was granted to the counties in fee. They were required, as a condition precedent to securing the grant, to have the land claimed severed from the public domain by a survey (Pas. Dig. art. 3464); to have the field-notes recorded (Pas. Dig. art. 3466), and return them to the general land office; and for this surveying the county paid. Pas. Dig. art. 3477. And the land so surveyed was to be patented to the counties. Pas Dig. arts. 3471, 3472. And these patents or designation of the school land are fully recognized as grants by the constitution of the state of Texas, article 10, section 3. Pas. Dig. p. 71.

They possessed, then, all the requirements of a grant, viz.: a grantor, grantee, a thing granted, and a consideration. And a grant of land is an executed contract, resting in perfect obligation, and is protected from infringement by the constitution of the United States. Fletcher v. Peck, 6 Cranch, 87;Terrett v. Taylor, 9 Cranch, 43;Trustees of Dartmouth College v. Woodward, 4 Wheat. 570.

We have shown that these grants are upon a consideration, but this is not necessary to entitle them to the protection of the constitutional prohibition.

2. Was the corporation called Galveston county capable of taking? This is sufficiently answered by reference to the statutes, and the case of Bell County v. Alexander, 22 Tex.

3. Is there anything in the nature of the grant, or in the character of the grantee, to change or create an exception to these general rules? We think not. The grant is for a charitable use, but such grants are protected quite as strongly as any others. Trustees of Dartmouth College v. Woodward. Now, is there anything in the character of the grantee to change this salutary rule, or to prevent the county from invoking the provisions of the constitution of the United States as a shield to protect her right of property from violation by state authority? In the case of Dartmouth College v. Woodward, ...