Harris v. O'Connor

Decision Date02 November 1944
Docket NumberNo. 4355.,4355.
PartiesHARRIS et al. v. O'CONNOR et al.
CourtTexas Court of Appeals

Appeal from District Court, Refugio County; Howard P. Green, Judge.

Suit by Robert G. Harris and others against Thomas O'Connor and others to establish a preference right to lease from the state for oil and gas, wherein the state of Texas filed a petition of intervention. From a judgment, the plaintiffs and the State of Texas appeal.


Gerald C. Mann, Atty. Gen., and Ocie Speer, Geo. W. Barcus, and Fagan Dickson, Asst. Attys. Gen. (Cecil C. Rotsch, former Asst. Atty. Gen., of counsel), for the State, appellant.

J. B. Lewright, of San Antonio, K. D. Hall, of Refugio, and Kemp, Lewright, Dyer, Wilson & Sorrell, of Corpus Christi, for Harris, Hornburg & Devine, appellant.

Hobart Huson, of Refugio, Clayton L. Orn, of Houston, Phillips, Trammell, Estes & Edwards, of Fort Worth, Burges, Burges, Scott, Rasberry & Hulse, of El Paso, Davenport & Ransome, of Brownsville, and Crain, Vandenberge & Stofer, J. V. Vandenberge, and Frank H. Crain, all of Victoria, for appellees, Thomas O'Connor, L. A. Nordan, and others.

B. D. Tarlton, of Corpus Christi, J. W. Ragsdale, of Victoria, Armond Schwartz, of Hallettsville, Rex G. Baker, Ralph B. Lee, R. E. Seagler, W. J. Howard, Harry Holmes, Jr., J. E. Price, Chas. W. Bell, and Fulbright, Crooker, Freeman & Bates, all of Houston, for appellees, Humble Oil & Refining Co., Quintana Petroleum Co., and others.

PRICE, Chief Justice.

This is an appeal by the State of Texas, Robert G. Harris, B. H. Hornburg and Thomas Devine from an adverse judgment of the District Court of Refugio County in favor of Thomas O'Connor and others. Harris, Hornburg and Devine instituted a suit under the provisions of H. B. No. 9, Chapter 3, page 465, General Laws, 46th Legislature, 1939, Vernon's Ann.Civ. St. arts. 5421c, § 6 et seq., 5421c—1 et seq. against Thomas O'Connor, certain parties claiming under O'Connor, and the State of Texas, by joining the Attorney General as a party defendant, each of the plaintiffs claiming a preference right to lease from the State for oil and gas a described area in Refugio County. Plaintiffs each filed separate suits originally, but the three were consolidated.

It appears from the pleading of each plaintiff and the intervention of the State that the Land Commissioner had refused the respective applications of the plaintiffs. Right to the leases was based on the ground that the areas described in the applications were a part of the public domain of the State, and the Land Commissioner was under the duty to have granted each application.

The State filed a petition of intervention asserting title to the land subject to the rights acquired by said Harris, Hornburg and Devine by virtue of their applications. A judgment was sought by the State for a vast sum, representing the value of oil allegedly produced by defendants from the premises in controversy.

O'Connor and those claiming under him pleaded not guilty and various special defenses.

At the close of the evidence the trial court instructed a verdict against the State and plaintiffs.

Hereinafter, for convenience, plaintiffs Harris, Hornburg and Devine will be referred to as "plaintiffs," except where named; the State by name, and defendants O'Connor and those claiming rights under him as "defendants," except where specifically named.

The three tracts respectively claimed by plaintiffs are situated in Refugio County in and a part of an area bounded on the north by the south line of what is known as the "Swisher Surveys"; on the south by the shore line of Copano Bay; on the West by Melon Creek and bodies of water into which that stream flows; on the east by Alamito or Copano Creek.

For the present purpose of showing the exterior boundaries of this larger area and the land in dispute, we here reproduce a copy of a map appearing on page 12a of the brief of plaintiffs. It is not meant to in any way intimate that either the plaintiffs or the State assent to the proposition that the tracts shown other than the Swisher Surveys can or should be laid on the ground as thereon illustrated. In truth and in fact a conflict is shown between the three areas shown as the Hewetson, Sr., Hewetson, Jr., James Power & Son and the area shown in red,1 which represents the three respective areas claimed by plaintiffs. That portion of the area marked in red1 and designated by the letter "A" shows the land sought by plaintiff Hornburg; that covered by the Devine application is designated "B"; and the Harris application being marked "C".


Plaintiffs and the State claimed the land as unappropriated public domain of the State. The claim of plaintiffs, of course, depends on the validity of the State's title. The theory of the State is that it acquired the title held by the Republic of Texas, and that the Republic acquired the title of the State of Coahuila and Texas by conquest; that is, that the Republic of Texas succeeded to any title of Coahuila and Texas, and that the Republic owned the land in a proprietary capacity and said title devolved upon the State of Texas.

Defendants claim title from Coahuila and Texas by virtue of a headright grant made to James Power & Son October 20, 1834, with which they connected themselves, and another known as James Hewetson, Sr. and James Hewetson, Jr., made November 19, 1834, with which they connected themselves. In short, defendants do not claim under the State of Texas, but under grant by the State of Coahuila and Texas, when that State was part of the Republic of Mexico.

Neither the State nor plaintiffs take the position that if the purported grants under which defendants claim were valid under the laws of the State of Coahuila and Texas at the time same were made and cover the area in question here, that they are not valid today.

Assent is given by all parties to the well-established legal proposition that a government succeeding to the territory of a preceding government takes in a proprietary capacity only those lands which the superseded government held in a proprietary capacity. In short, that a succeeding government is bound by the valid grants of its predecessor — this by law which each civilized nation of the world recognizes. Insofar as private titles are concerned, the succeeding sovereign is bound to recognize, protect and uphold the lawful act of its predecessor. The determination as to the validity and extent of the grants depends upon the law of the preceding superseded sovereignty. Stated in another way, the law of Coahuila and Texas of the date these grants were made is the law of Texas today in determining their validity and extent. Watrous' Heirs v. McGrew, 16 Tex. 506; Miller v. Letzerich, 121 Tex. 248, 49 S.W.2d 404, 85 A.L.R. 451; State v. Sun Oil Co., Tex.Civ.App., 114 S.W.2d 936 writ refused; McMullen v. Hodge, 5 Tex. 34.

The Supreme Court of the Republic and of the State have by a long line of decisions recognized, insofar as individuals are concerned, that the succeeding sovereign should respect the grants of its predecessor.

There is substantial disagreement between the adverse parties as to where the burden of proof lies herein. Plaintiffs and the State assert that the burden was upon defendants to show the validity of their grants and that the lands for which plaintiffs sue were included therein. This is claimed to be true on the ground that the State sues as a sovereign and in the interest of the people of the State.

A rather unusual situation is presented here: Plaintiffs and defendants claim under a common source; that is, the State of Coahuila and Texas. Defendants claim that the State acquired no rights by succession for the reason that prior to the succession Coahuila and Texas had parted with title by grant to the predecessors in title of defendants. Another situation is presented, giving rise to some difficulty: The Commissioner of the General Land Office has refused to award this land to plaintiffs. Such officer is charged with the sale and administration of the public lands of the State. Under the Constitution and laws of the State it is his duty to determine whether these lands are public lands, subject to sale. His decision was that the lands involved herein were not such — not such because, as a matter of law, they were titled lands. If his decision be correct, they are titled lands through the grants relied upon by defendants. The Attorney General, on the other hand, with the power and duty of representing the State in this litigation, asserts the area is public domain.

Had the Commissioner granted the application of plaintiffs, it would have formerly created a prima facie presumption that same were public lands. It was so held by the Supreme Court in the case of Short et al. v. W. T. Carter & Bro. et al., 133 Tex. 202, 126 S.W.2d 953, in the Court of Civil Appeals, Sessums et al. v. W. T. Carter & Brother, 121 S.W.2d 486. This was the law until it was changed by the provision of H. B. No. 9, Chapter 3, p. 465, of the General Laws, 46th Legislature, 1939. That law may only deal with the prima facie effect of the granting of an application by the Commissioner. The applicable provision is as follows:

"Provided that no such award shall be made by the Commissioner except after a hearing, and provided further that no presumption shall obtain in any suit involving the existence of a vacancy, as a result of the action of the Commissioner in this respect." Vernon's Ann.Civ.St. art. 5421c, § 6(e).

An unmistakable intention is evidenced to do away with the prima facie effect of an award by the Commissioner. The language may be broad enough to apply likewise to the refusal of an application.

It would seem to be logical and reasonable that if the...

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