Grubstake Inv. Ass'n v. State

• Decision Date: 24 February 1925
• Docket Number: (No. 6878.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 272 S.W. 527
• Parties: GRUBSTAKE INV. ASS'N et al. v. STATE et al.
• Court: Texas Court of Appeals

272 S.W. 527

GRUBSTAKE INV. ASS'N et al. v. STATE et al.

(No. 6878.)^*

Court of Civil Appeals of Texas. Austin.

February 24, 1925.

Rehearing Denied April 22, 1925.

Appeal from District Court, Travis County; George Calhoun, Judge.

Suit by the State of Texas and others against the Grubstake Investment Association and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded, with instructions.

Dougherty, Dougherty & Tarlton, of Beeville, and Gaines, Quin, Harley & Gaines, of San Antonio, for appellants.

W. A. Keeling, Atty. Gen., and W. W. Caves, Asst. Atty. Gen., for appellee State.

White, Wilcox, Graves & Taylor, of Austin, for appellees Coyle and Coyle Concord Oil Co.

McCLENDON, C. J.

This case presents the question whether, under the Mexican law as it existed in 1835, a grant of land bordering upon a public stream vested in the grantee title in the bed to the thread of the stream, or, on the other hand, whether the boundary of such grant terminated at the borders of the stream. This question, we think, has never been judicially determined in this state.

Since we have reached the conclusion that the grant vested in the grantee title in the bed to the thread of the stream, and since this holding is decisive of the case, it will be necessary only to state so much of the record as has bearing upon this issue. The suit was brought by the state against various parties as the present owner of grants made in the year 1835 by the Mexican government, which grants called for the Frio river as one of their boundaries.

A. J. Coyle and others were impleaded as co-plaintiffs under the allegation that they were holders of oil leases issued by the land office, under chapter 83 of the Laws of 1917 (Vernon's Ann. Civ. St. Supp. 1918, arts. 5904-5904w), which authorizes the leasing of the bed of streams, where the title is in the state, for the purpose of prospecting and drilling for oil. While the suit in form was in trespass to try title, its real and only purpose was to determine the title to the oil and other minerals lying under the bed of the Frio river, adjacent to the surveys in question. No issue is involved as to the public character of the waters of the Frio river as distinguished from title to the bed of the stream, burdened with such servitude as the public character of the waters might impose.

The suit was tried to the court without a jury and resulted in a judgment in favor of the state and its coplaintiffs; from which judgment the defendants have appealed. While the statement of facts in the case is quite voluminous, there is little, if any, conflict in the evidence having material or substantial bearing upon the case. The pertinent findings of fact and conclusions of law filed by the trial court follow:

"Findings of Fact.

"(1) I find that the Frio river from a point above the area in controversy in this case to its confluence with the Nueces is an average of 100 feet or more in width between the tops of the first high banks from the center of said river; about 60 feet in width between the foot of said banks; and that the average width of the water, when not swollen by floods and not affected by drouth, is about 30 feet.

"(2) I find that the river flows about 75 per cent. of the time during the average year. During times of drouth, the river ceases to visibly flow; at such times it stands in holes or lakes, portions of the surface of the sand of the channel intervening between the holes being dry. During these periods water may be procured by digging a short depth in the sand.

"(3) I find that for some years a substantial amount of water has been diverted from the Frio river and from the Leona, one of its tributaries above the area in dispute, for irrigation purposes.

"(4) I find that the defendants hold title to the lands bordering on the river, under grants made by the government of Coahuila and Texas, in 1835; that at the time these grants were made, the Frio was designated and regarded by the Mexican government as a river, and that it was not intended to include the bed or channel of the river within the boundaries of said surveys, and same was not included therein.

"(5) I find that the coplaintiff, A. J. Coyle, holds a permit from the commissioner of the general land office of the state of Texas authorizing him to prospect and drill for oil and gas in that portion of the channel or bed of the Frio river described in plaintiff's petition, and that the coplaintiff, Coyle-Concord Oil Company, has furnished money for the development of the property covered by said permit."

"Conclusions of Law.

"(1) I conclude that the law in force in Mexico, at the time of the issuance of the grants bordering the portion of the Frio river involved in this suit, is controlling in determining the question of whether the bed of the river was included in such grants.

"(2) I conclude that in 1835, when the lands bordering the portion of the Frio river in controversy were granted, the Frio was, under the laws in force in Mexico at that time, a river; and that its channel or bed was not included in such grants, but that the complete title thereto was reserved in the Mexican government; that the title to such channel or bed, so reserved to the Mexican government, passed to the Republic of Texas, and the state of Texas, and is now vested in the plaintiff, the state of Texas. I therefore hold that the plaintiff is entitled to recover judgment for the title to and possession of all that portion of the bed or channel of the Frio river described in its petition."

Findings and conclusions having no bearing upon the controlling issue are omitted. The fourth finding of fact of the trial court is unquestionably based upon the legal conclusion that, under the civil law in force in Mexico in 1835, the bed of a public river (whether navigable or nonnavigable in fact) was public in the same sense that the waters of such river were public, and that a grant by the government calling for a stream as a boundary vested in the grantee title only to the low-water edge and not to the thread of the stream, in like manner as grants under the republic or state of Texas, after the passage of the act of December 14, 1837 (present article 5338, Revised Statutes), calling for the borders of a stream navigable under the provisions of that act. Each of the grants in question calls to begin on the margin of the Rio Frio and to follow the river upward by specific numbers of measurements, "along the different courses formed by its currents." The field notes of the meanders of the river are not given in the grants, but this fact we think has no significance. The stream is clearly called for as one of the boundaries of the surveys, and unless the holding of the trial court with reference to the civil law in force in Mexico at the time of these grants is correct, then clearly the grants carry title to the bed of the river to the thread of the stream. Muller v. Landa, 31 Tex. 265, 98 Am. Dec. 529; Dutton v. Vierling (Tex. Civ. App.) 152 S. W. 450. The trial court makes no finding whether the Frio river at the point in question was in fact navigable. The court no doubt took the view that this question was immaterial, and that no distinction existed in the civil law of Mexico with reference to public rivers regardless of whether they were navigable or nonnavigable in fact. We think this conclusion is correct. Nor does it appear to be seriously contested by the parties to the suit on either side.

It is conceded that the various laws of "Las Siete Partidas," which have any bearing upon this question, were in force in Mexico in 1835. The following laws from title 28 of the third Partida we think control the question:

"Law 3. What are the Things Which Belong in Common to All Creatures Living. — The things which belong in common to all the living creatures of this world are, the air, rain, water, the sea and its shores, for every living creature may use them, according to their wants. And therefore every man may enjoy the use of the sea and its shores, either for the purpose of fishing, or navigation, or doing there whatever else he may conceive advantageous to him. Nevertheless, if there be a house on the sea shore, belonging to any one, it ought not to be pulled down, or used, in any manner, without the consent of the builder or owner. If, however, it be destroyed by the sea, or otherwise, or fall to ruin, then any person may build another in its place.

"Law 4. What are the Things a Man may Do, upon the Sea Shore. — Every man who chooses may build a house or cabin upon the sea shore, as a retreat, and he may erect there, any other edifice whatever, to serve his purposes: Provided he does not thereby interfere with the use of the shore, which every one has a right in common to enjoy. He may also build gallies there, or any other vessel whatever, or stretch and mend his nets, and when he is there, or employed for these or other purposes of a similar nature, no one has a right to disturb him. And by the sea shore is understood all that space of ground covered by the waters of the sea, in their highest annual swells, whether in winter or summer."

"Law 6. That Every One may Make Use of Ports, Rivers, and Public Roads. — Rivers, ports, and public roads belong to all men in common, so that strangers coming from foreign countries may make use of them in the same manner, as the inhabitants of the place where they are, and though the dominion or property (senorio) of the banks of rivers belongs to the owner of the adjoining estate, nevertheless, every man may make use of them, to fasten his vessel to the trees that grow there, or to refit his vessel, or to put his sails or merchandise there. So fishermen may put and expose their fish for sale there, and dry their nets, or make use of the banks for all other like purposes, which appertain to the art or trade, by which they live."

"Law 7. That Trees Growing on the Banks of Rivers Belong to...