Giles v. Basore

• Citation: 278 S.W.2d 830,154 Tex. 366
• Decision Date: 02 March 1955
• Docket Number: No. 4666,4666
• Parties: Bascom GILES et al., Petitioners, v. J. N. BASORE et al., Respondents.
• Court: Texas Supreme Court

Page 830

278 S.W.2d 830

154 Tex. 366

Bascom GILES et al., Petitioners, v. J. N. BASORE et al., Respondents.

No. 4666.

Supreme Court of Texas.

March 2, 1955.

Rehearing Denied May 25, 1955.

John Ben Shepperd, Atty. Gen., and Burnell Waldrep, Asst. Atty. Gen., Austin, Rex G. Baker, Nelson Jones and Wm. J. Merrill, Houston, for petitioners.

Vinson, Elkins, Weems & Searls and Tarlton Morrow, Houston, Dan Moody and Cecil Rotsch, Austin, for respondents.

GRIFFIN, Justice.

The Court of Civil Appeals has made a clear and concise statement of the issues involved in this cause, as follows:

'This suit involves the title to certain land in the delta of the Trinity River. The appellants, defendants in the trial court, are the State of Texas, the School Land Board of Texas, and the Humble Oil & Refining Company, holder of oil, gas and mineral leases on a part of the area in controversy. Appellees, plaintiffs in the trial court, claim title under a grant from the State of Coahuila and Texas to Thomas Jefferson Chambers dated September 23, 1834 of two and one-half leagues of land.

'A jury was taken in the case but at the conclusion of evidence, the case, by consent of all parties, was withdrawn from the jury and submitted to the court, and judgment was rendered in favor of appellees, plaintiffs and intervening plaintiffs, and against the appellants, the defendants and intervening defendants for the title and possession of the lands, to wit:

'That portion of the lands granted originally to Thomas Jefferson Chambers on September 23, 1834, lying in Chambers County, Texas, and generally described as follows:

'The portion of the Delta between Turtle Bayou Pass and Jack's Pass as it existed at the time of the grant to Thomas Jefferson Chambers, namely, September 23, 1834, and as has been extended by natural processes since that date, excluding lands under the bed of the Trinity River, including its several mouths (called passes), identified on said plat and in the field notes, and excluding other lands under other waters within the above general description which are below the vegetation linc.' Giles v. Basore, Tex.Civ.App., 266 S.W.2d 926.

We attach a map or plat of the lands sued for, which shows the general location and character of the area of the Trinity River Delta.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

There is no dispute as to any material fact. The following facts were stipulated:

"The sole claim of plaintiffs and intervenors Guy C. Jackson, Jr., et al., to the land in controversy, is under the grant from the State of Coahuila and Texas, dated September 23, 1834, to Thomas Jefferson Chambers, of Two and One-half Leagues of land on Turtle Bay between the mouth of Turtle Bayou and the Trinity River. It is the contention of the State and Humble Oil & Refining Company that the Chambers Grant is invalid and that said grant does not cover the land in controversy. If said grant is held to be valid, said plaintiffs and intervenors have title to such of the land in controversy, if any, as is covered by said grant.'

'Further stipulation was that the land lies in a typical river delta, that in 1834 the topography of the area was substantially as shown on the United States Coast & Geodetic Survey Map of 1851, marked exhibit 'C', that the topography has changed slowly and imperceptibly as the result of natural processes, that the land was on September 23, 1834 within ten leagues of the coast, and that Chambers was appointed Circuit Judge under the Jury Law and the land herein was made to him as compensation for his services.' Id., 266 S.W.2d at page 929.

The petitioners contend that the Chambers Grant is void because it was not approved by the Federal executive of Mexico. If this contention be sustained, the judgments entered by the trial court and the Court of Civil Appeals are erroneous, and defendants below were entitled to recover. We think the Chambers Grant was valid and has been so held by previous opinions of this Court. Chambers v. Fisk, 22 Tex. 504; State v. Balli, 144 Tex. 195, 190 S.W.2d 71.

It is true that under the Colonization Law of the Mexican National Government dated August 18, 1824, Article 4, 1 Laws of Texas 97, and the First Colonization Law of the State of Chahuila and Texas, March 24, 1825, 1 Laws of Texas 99, Section 7, the consent of the Federal Executive of Mexico was essential to the validity of the grants of land within the 10 coast leagues and 20 border leagues of vacant lands in Texas. Edwards v. Davis, 3 Tex. 321; Id., 10 Tex. 316; Republic of Texas v. Thorn, 3 Tex. 499; Jones v. Borden, 5 Tex. 410; Bissell v. Haynes, 9 Tex. 566; Goode v. McQueen's Heirs, 3 Tex. 241; Smith v. Power, 14 Tex. 146; Wilcox v. Chambers, 26 Tex. 180, 181; State v. Balli, supra.

In 1832 by Colonization Act, Decree 190, 1 Laws of Texas 299, the act of March 24, 1825, was repealed, but the substance of Section 7 was retained, except that the National Government's consent was required to settlements within the 10 and 20 league area only in the event such settlements 'were not composed of two-thirds Mexicans.'

On March 26, 1834, the Congress of Coahuila and Texas passed Decree 727, 1 Laws of Texas 357-362, which contained no prohibition against sales of lands within the 10 and 20 league limits. This Decree did affirmatively provide that 'the vacant lands of the state shall be sold at public auction.' This law was not repealed by any act of the National Government, but the National Government sent their representatives, Noriega and Almonte, to Texas to negotiate for the purchase of state lands in payment of the obligations owed by the State of Coahuila and Texas to the National Government. In its letter of instructions to Noriega, special reference was made to the Act of March 26, 1834, and directions were given to Noriega to secure a setting aside of the requirements of sale of the state lands at public auction in so far as dealings with the National Government were concerned. This was accomplished by Act of May 2, 1834. This last act dispensed with the Act of March 26, 1834, 'until the executive, in a manner and on terms advantageous to the state, might negotiate with the president for such lands as might be needed by the federal government.' Republic of Texas v. Thorn, 3 Tex. 499, 507.

Article 15, of the Constitution of Coahuila and Texas, adopted March 11, 1827, provided that 'all kinds of vacant property within its limits, and all intestate property without a legal successor, shall belong to the state.' Article 4 of this Constitution, after delegating the state's powers and rights to the general congress in all subjects relating to the Mexican Confederacy further provides: '* * * but in all that belongs to the internal government and administration of said state, it retains its liberty, independence, and sovereignty.'

Article 165 of the Mexican Federation, 1 Laws of Texas 93, provided that 'Congress alone has the right to interpret the constitution in doubtful cases.' This was followed in Article 97, Section IV of the Constitution of Coahuila and Texas, first subsection of which provided that the State Congress shall have power '* * * to enact, interpret, amend or repeal the laws relative to the administration and internal government of the state in all its branches.' (Emphasis added.) Under the Mexican system of government the courts had no power to declare a law passed by either the National or State Congress unconstitutional or in conflict with the Constitution or other laws of Congress. This power was specifically given only to the legislative bodies, and to the Executive council of government. First Article of Section Fifth, 1 Laws of Texas 86.

With this background of the National Mexican Constitution and of the Constitution of Coahula and Texas in mind, let us examine the Juror Law, passed by the Congress of Coahuila and Texas on April 17, 1834. This law was passed in order to placate the citizens of Texas who were accustomed to jury trial in the courts of those lands from which they had migrated to Texas. In 1833, a convention of the citizens of Texas had been called for the purpose of selecting a committee to go to Mexico City and present a number of grievances of Texas citizens to the National Executive, who, by this time, was to all intents and purposes, a dictator. One of the grievances was the lack of a jury system. After much delay, Stephen F. Austin, one of those selected by the Texas Convention, succeeded, in November, 1833, in securing an audience with Santa Anna and his council. As a result of this audience, the Secretary of State wrote Austin on December 7 that certain requests of Austin had been approved. 'Among these has been one to request the Governor of the State to promote the enjoyment of all rights of (to which) those colonists are entitled, the same as all other Mexican citizens in civil and criminal matters. For this purpose the means that should be put in practice for more honest and suitable administration of the justice and one of the other branches has been indicated, one of them being the establishment of a jury system, all in conformity with the desire of the colonists. It has not been possible on the part of the Federal Givernment to do anything more because it is outside of its attributes.'

Also there are shown instructions to Noriega whereby he is directed to cooperate in the matter of adopting measures for the benefit of the colonists regulating their government and internal administration, 'keeping in mind that in the judgment of His Excellency one of the most convenient measures would be the establishment of juries, a subject on which views the Government has already made known to Your Lordship.' These instructions were issued the latter part of 1833. Noriega came to Montclova, the state capital at that time. On April 18, 1834, the Congress of Coahuila and Texas passed the Juror Law, which established a judicial circuit in Texas...