Giles v. Ponder, 12696

Citation275 S.W.2d 509
Decision Date19 January 1955
Docket NumberNo. 12696,12696
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas
PartiesBascom GILES, Commissioner of the General Land Office et al., Appellants, v. Russell S. PONDER et al., Appellees.

Page 509

275 S.W.2d 509
Bascom GILES, Commissioner of the General Land Office et
al., Appellants,
Russell S. PONDER et al., Appellees.
No. 12696.
Court of Civil Appeals of Texas, San Antonio.
Jan. 19, 1955.
Rehearing Denied Feb. 16, 1955.

John Ben Shepperd, Thomas Black, Austin, for appellant.

Kelso, Locke & King, J. R. Locke, J. R. Locke, Jr., San Antonio, J. W. Timmins,

Page 510

Martin A. Rowe, Dallas, Wood & Pratt, Corpus Christi, Wm. E. Remy, San Antonio, Weldon Cabiniss, Rockport, for appellees.

POPE, Justice.

Russell S. Ponder commenced this suit under the provisions of Article 5421c, Vernon's Ann.Civ.Stats., claiming a described area as vacant unsurveyed lands. He sued many parties who claim interests in the land concerned, including the Commissioner of the General Land Office of Texas and the Attorney General of Texas. The judgment awarded Ponder a tract of land as vacant land, but held that other described lands were not vacant. The Commissioner of the General Land Office and the Attorney General are the only appellants, and they urge that other lands are also vacant lands.

The controversy is over a portion of low-lying land below a bluff and presents the legal question of whether the civil law rule or the common law rule shall apply to a Republic grant in fixing the shoreline to the property which fronts on Copano Bay, in Aransas County, Texas. Certain steps were commenced to obtain a patent from the Republic of Texas prior to January 20, 1840, when the Republic generally adopted the common law, but the field notes were not returned to the land office and the patent did not issue until after that date. The State insists that the grant had its inception under the civil law, and for that reason the shore of the sea is to the line of the highest tide in winter; but the appellees argue that the grant extended, under the common law, to the line of ordinary high tide. Mayor, etc., of City of Galveston v. Menard, 23 Tex. 349; Heard v. Town of Refugio, 129 Tex. 349, 103 S.W.2d 728; De Merit v. Robison, 102 Tex. 358, 116 S.W. 796; Hynes v. Packard, 92 Tex. 44, 45 S.W. 562; Galveston City Surf Bathing Co. v. Heidenheimer, 63 Tex. 559, 562; State v. Balli, Tex.Civ.App., 173 S.W.2d 522, 543; Angell on Tide Waters, 20-27; Farnham, Waters and Water Rights, 228 (1904); 44 Tex.Jur., Water, § 99. The shore line under the civil law is at a higher point than under the common law and, applied to the ground, the difference between the lines is the property here in dispute.

After Texas became a Republic, but before it generally adopted the common law, Henry Smith, a transferee of the William Steele Land Warrant No. 840, dated December 8, 1837, caused John Talley, the Deputy Surveyor for Refugio County, to survey what is described in the field notes as '1280 acres of land' which fronted on the bay. Henry Smith, also a transferee of the Van Benthuysen Land Warrant No. 1188, dated December 20, 1837, caused the same surveyor to survey '640 acres of land' adjoining the other tract. The surveys were made and the field notes prepared with plats attached, and the surveyor, in accord with the law then in effect, made his affidavits that the plat, field notes and the survey were made since the first day of August, 1838. These affidavits were dated and signed by the deputy surveyor on September 23, 1839, and on the same date were certified as correct by the Refugio County Surveyor. The trial court found as a fact, based upon presumptions, that the field notes on the two surveys were not filed in the General Land Office until after January 20, 1840, when the Republic generally adopted the common law. The patents were issued by Marabeau B. Lamar during April of 1841.

John Talley, in making his survey along the shore, ran his line on the upland rather than going below what was a small bluff and onto the low-lying 'flats' in dispute. The trial court correctly determined, upon sufficient evidence, that the line was a meander line. The grantee of meandered land owns at least to the shore line, whichever ever shore may be the correct one. Stover v. Gilbert, 112 Tex. 429, 247 S.W. 841.

The State reasons that the grant took its civil law nature when the property vested, which occurred when it was located and surveyed. The appellees argue that

Page 511

the grant was not operative until after January 20, 1840, because the field notes were not returned to the General Land Office and the patent did not issue until after 1840. We hold that the common law shore line is the true line, because:

(1) Under the Constitution and Statutes of the Congress of the Republic, grants made by the Republic between September, 1836, and January 20, 1840, were made under the principles of the common law;

(2) Under the Constitution and Statutes of the Congress of the Republic, a 'grant' meant a final title or patent.

We gain a clearer understanding of this Republic grant when we place ourselves in the historical setting in which these events transpired. Davis v. Bond, Tex.Civ.App., 141 S.W.2d 979, affirmed 138 Tex. 206, 158 S.W.2d 297. See also Frost Nat. Bank v. Boyd, Tex.Civ.App., 188 S.W.2d 199, affirmed 142 Tex. 206, 196 S.W.2d 497, 168 A.L.R. 1326. When we follow the footsteps of the early Republic lawmakers, we can more easily discover their intent, and since this was a Republic grant, her laws as they then existed must prevail. When we compare the Mexican laws with those of the Republic, we learn that the Constitution and Congress of the Republic, at the time of the grant in question, had already departed from the Mexican system and had incorporated the English system of land measurements into the laws of Texas.

When Moses Austin came to Texas in the winter of 1820 to lay his colonization plans before Governor Martinez, Mexico was already preparing to declare her independence from Spain. Shortly thereafter Moses Austin died. On Frbruary 21, 1821, Iturbide declared the Mexican independence from Spain. Stephen F. Austin determined to continue his father's colonization plan and came to Texas for a conversation with Governor Martinez, who asked for a positive statement of his plan. Austin, in the summer of 1821, submitted a plan by which he would promise each head of a family and each single man over age, 640 acres of land, 320 acres in addition for the wife, 160 acres for each child, and 80 acres for each slave. 1 Gammel 6. The plan met with favor, but several months later, on another trip to Texas, Governor Martinez, probably by reason of the change in governmental status, advised Austin that the Mexican Congress was then in session and that permission to colonize would need confirmation by the Mexican Government in Mexico City. 1 Gammel 6-7. A twelve hundred mile trip, through the danagers, deserts and mountains of Mexico, brought Austin to Mexico City, there to find that Iturbide had caused himself to be proclaimed Emperor and that enmity existed between the Emperor and Congress. The first step toward a lawful colonization was not taken until January 4, 1823, when the Junta Instituyente, dominated by Iturbide, adopted its general colonization law. 1 Gammel 9.

To a people born to the civil law, Austin's plan to give lands measured in acres and sections of 640 acres, perhaps sounded strange, for the colonization law refused to adopt it. The civil law concept of land and land measurements was in different units, and the new law stated:

'Art. 5. The measurement of land shall be the following: establishing the vara, at three geometrical feet; a straight line of five thousand varas shall be a league; a square, each of whose sides shall be one league, shall be called a sitio; and this shall be the unity of counting one, two, or more sitios; five sitios shall compose one hacienda.

'Art. 7. One labor shall be composed of one million square varas, that it to say, one thousand varas to each side, which measurement shall be the unity for counting one, two, or more labors. These labors can be divided into halves and quarters, but not less.

'Art. 8. To the colonists, whose occupation is farming, there can not be given less than one labor, and those

Page 512

whose occupation is tock raising there cannot be given less than one sitio.' Colonization Law of 1823, 1 Gammel 27, 28.

On February 18, 1923, by decree of the Emperor of Mexico, it was ordered that Austin should 'grant to each head of a family, one labor or one league, agreeably to the occupation which he may profess; * * * it being understood, that to the colonist, who besides farming also dedicates himself to the raising of stock, there may be granted a league and a labor, in conformity with the 8th article of said law.' (Referring to the Colonization Law, supra.) Decree No. 8 of the Emperor, 1 Gammel 30.

Mexico was in a state of turmoil following her revolt from Spain, and after Iturbide decreed the Colonization Law he was ousted as a tyrant by Mexican patriots. Mexico declared Iturbide's coronation void and also nullified all his decrees, including the Colonization Act. Beginning anew, Austin was able, on April 14, 1823, to obtain from the new government a confirmation of his concession to colonize. Decree of Supreme Executive Power. 1 Gammel 33. The Mexican provisional government, on August 18, 1824, through its Congress, passed the National Colonization Law and decreed, with reference to colonists, that no lands could be colonized within twenty leagues of the limits of any foreign nation, nor within ten leagues of the coasts, without prior approval of the supreme executive power. It imposed other restrictions, guaranteed certain contracts, but prohibited a unit, in the same hands, of property more than 'one league square of land, suitable for irrigation, four square leagues in superficies, of arable land without the facilities of irrigation, and six square leagues in superficies of grazing land.' Decree No. 72, National Colonization Law, 1 Gammel 39, § 12. Contracts were then...

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4 cases
  • Butler v. Sadler, 86
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • January 27, 1966
    ...v. Balli, 144 Tex. 195, 190 S.W.2d 71, at 99 and 100 (1944); Strayhorn v. Jones, 157 Tex. 136, 300 S.W.2d 623 (1957); Giles v. Ponder, 275 S.W.2d 509, Tex.Civ.App. (1955); Rudder v. Ponder, 156 Tex. 185, 293 S.W.2d 736 (1956); Humble Oil & Refining Co. v. Sun Oil Co., Fifth Circuit, 190 F.2......
  • Rudder v. Ponder
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    • Supreme Court of Texas
    • July 18, 1956
    ...Attorney General appealed the trial court's judgment. The Court of Civil Appeals, in an exhaustive and wellreasoned opinion, affirmed, 275 S.W.2d 509, 510. In their application for writ of error petitioners say: 'The question before the court in this cause concerns the proper location of th......
  • Lewis v. Southmore Savings Association
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    • Supreme Court of Texas
    • April 5, 1972 use hearsay information and some justification for receiving his opinion when his information is not proven. See Giles v. Ponder, 275 S.W.2d 509 (Tex.Civ.App.1955) aff'd Rudder v. Ponder, 156 Tex. 185, 293 S.W.2d 736 (Tex.1956); Bryant v. Trinity Universal Ins. Co., Respondents complain ......
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    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • March 22, 1956
    ...which has been considered and twice overruled by this Honorable Court; (State .v Balli (Tex.Civ.App.), 173 S.W.2d 522; Giles v. Ponder (Tex.Civ.App.), 275 S.W.2d 509) and at least twice by our Supreme Court (State v. Balli, 144 Tex. 195, 190 S.W.2d 71; Giles v. Basore, 278 S.W.2d 830). That......

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