Haynes v. State

• Decision Date: 25 January 1905
• Parties: HAYNES et al. v. STATE. CUELLAR et al. v. SAME. HAYNES v. SAME. FLORES et al. v. SAME (two cases). GARZA et al. v. SAME. BENAVIDES v. SAME. PENA v. SAME.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

85 S.W. 1029

HAYNES et al. v. STATE.

CUELLAR et al. v. SAME.

HAYNES v. SAME.

FLORES et al. v. SAME (two cases).

GARZA et al. v. SAME.

BENAVIDES v. SAME.

PENA v. SAME.^*

Court of Civil Appeals of Texas.

January 25, 1905.

Appeal from District Court, Travis County; V. L. Brooks, Judge.

Trespass to try title by the state against Leonard Haynes and others, against Juan Vella Cuellar and others, against Leonard Haynes, against Juan Manuel Flores and others, against Espiridion Flores and others, against Porfiria Garza and others, against Servando Benavides and others, and against Filiberto Pena and others. From judgments in favor of plaintiff, defendants appeal. Affirmed.

J. F. Mullally, B. Coopwood, F. W. Seabury, and James B. Wells, for appellants. C. K. Bell, Atty. Gen., for the State.

FISHER, C. J.

The first-named is an action, in the form of trespass to try title, brought by the state, under the act of the Legislature of Texas approved September 3, 1901, on pages 4 and 5, c. 4, of the Session Laws, in which judgment was rendered by the court in favor of the plaintiff. The state sued for 17 surveys, aggregating 12,825 acres of land, as alternate sections located and surveyed for the common school fund of the state of Texas. These locations were made upon surveys that were claimed to have been granted to Antonio Zapata and Pedro Bustamente by the state of Tamaulipas under decree No. 24, of date October 19, 1833. Appellants in this case (defendants below) pleaded a general denial and not guilty, and also alleged that the lands sued for are part of the two Mexican grants above stated, both having their origins prior to the 25th day of April, 1835, by adjudication of the ayuntamiento of the city of Guerrero, by virtue of decree 24; that a proper denouncement was made, and favorably passed upon by the ayuntamiento, followed by a survey made about April 25, 1835, by the Surveyor General of Tamaulipas, upon which final title to the grants was issued by the Governor of Tamaulipas on the 2d day of January, 1848; continuous possession long prior to 1835, up to the date of the institution of this suit; and the resurvey of these grants by the county surveyor of Zapata county in 1871 and 1876. And they also pleaded the protection afforded by the treaty of Guadalupe Hidalgo. They also tendered in their pleading the original price of these grants as fixed by decree No. 24, and pleaded presumption of grants based on more than 70 years' possession. Plaintiff, by supplemental petition, and for the purpose of showing that the state of Texas never recognized the grants, pleaded the record of two suits brought against the state for the confirmation of these grants under the law of 1870, in which suits the claimants recovered judgment in the district court of Travis county, which was reversed by the Supreme Court, and the cases finally dismissed by the plaintiffs. The case was tried before the court without a jury, and judgment, as before stated, rendered in favor of the state, and denying appellants confirmation as prayed for.

We find the following facts:

Subsequent to the date upon which the Supreme Court reversed the judgment for the claimants for confirmation of titles to these lands under the act of 1870, the surveys sued for by the state were surveyed and located, in 1884, embracing the land in controversy, the field notes of which were introduced in evidence, as stated in the plaintiff's petition, and these locations were made upon the grants as set out and described and claimed by appellants in their answer. We find that this evidence upon the part of the state is sufficient to entitle it to recover, unless defeated by the testimony coming from the defendants, as hereinafter set out. There is no controversy about the facts, but the principal question to be considered is the sufficiency of the evidence offered by the appellants to show that they are entitled to recover.

Defendants read in evidence a final grant made by the Governor of Tamaulipas, together with a plat and field notes of a survey made by Antonio Canales, Surveyor General of Tamaulipas, for Antonio Zapata, as follows (translation):

"[Third Seal.] Years of eighteen hundred and forty eight and eighteen hundred and forty nine. 1848 & 1849. Fifty cents.

"Francisco Vital Fernandez, Brigadier General of the Army of the Mexican Republic and Governor of the State of Tamaulipas. Whereas, the citizen Antonio Zapata has paid into the Treasury of the State the fifty dollars at which were valued the five sitios of pasture land for large stock denounced by him at the point de Villa, as appears by the expediente made for the purpose, using the power that the law gives me upon this particular, I have thought proper to adjudicate to the citizen Antonio Zapata for himself, his heirs and successors the said five sitios for large stock, within the limits and boundaries made on the attached map.

"Therefore, I order the authorities and inhabitants of the State to recognize the said citizen Antonio Zapata as the legitimate owner of the said five sitios of pasture land for large stock which are thus granted. Given at the city of Victoria on the second day of the Month of January, Eighteen Hundred and Forty eight.

"Franco. V. Fernandez

"[Seal.] Andres Guerrero, 2nd official.

"Pasture land of De Villa, surveyed for the citizen Antonio Zapata:

                                                  SW
                                               SE.   NW
                                                  NE
                

"[Place of the seal of the State of Tamaulipas.]

Explanation of the demarcations:

                  a. Corner of La Lobera
                  b. Corner of the Loma de Macho Vallo
                  c. Corner of Los Huesos.
                  d. Corner of the Seja del Gruyo.
                  f. Branch called
                  g. Branch called Calavasas.
                  h. Branch called Villa.
                

"Explanation of the Survey.

"The area comprehended in the rectangle above drawn is five sitios of pasture land for large stock surveyed in the courses indicated in the plan, after correcting the variation of ten degrees that the needle has in this land, this tract of land is bounded on the northwest by the land of Las Comitas, on the S. W. by that of Los Chapparros Prietos, on the S. E. by that of El Grullo and on the N. E. by vacant lands.

"City of Guerrero, April 25th, 1835. Lic. Antonio Canales."

Defendants introduced in evidence a certified copy of the survey and plat of said land made by the special deputy surveyor of Zapata county, as follows:

"The State of Texas, County of Zapata. Field notes of a survey of five leagues of land originally granted by the government of the state of Tamaulipas to Antonio Zapata on the 5th day of January, A. D. 1835. Said survey is situated in the county of Zapata 15 miles northeast of the town of Carrizo and on the waters of Veleno Creek, and is called Villa. Beginning at the south corner of a survey in the name of Pedro Bustamente and called Las Comitas, this corner being in the original title Lindero de la Lobera; thence N. 55 E. with the east line of said survey at 287 varas crossed derremadero de Villa, at 4230 varas an old line tree, at 4275 varas passed the eastern extremity of Laguna Quemada, at 7275 varas crossed road from Laredo to Rio Grande City bearing N. E., at 10300 varas the road from Teposan to the Escobas, at 10375 varas the derramadero de la Pita, at 14021 varas the east corner of said survey in the name of Bustamante, at 15000 varas set post for the north corner called Lindero del Macho Bayo, from which a mesquite marked X bears S. 55 E. 5 varas; also a mesquite marked NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE bears S. 30 W. 5 varas; thence S. 35 E. at 2084 varas a post for line mark, at 4168 varas the road from the Tanque, at 8333 1/3 varas set post for east corner from which a mesquite marked V bears S. 25 W. 3 varas, also a mesquite marked V bears N. 37 W. 29½ varas; thence S. 55 W. at 7000 varas entered the Nopalera de las Calabasas, at 10000 varas post for line mark I L at the Puesto de San Juan, at 10280 varas crossed road from Rio Grande City to Laredo, at 14600 varas crossed road to the Grullo, at 15000 varas set post for the south corner called Lindero del Macho from which a mesquite marked X bears S. 82 W., 25 varas, and a mesquite marked X bears S. 15 E. 20 varas; thence N. 35 W., at 3138 varas the arroyo de Simon, at 4903 varas the road to Teposan, at 8333 1/3 varas to the place of beginning. Surveyed August 22nd to Sept. 2nd, 1874. James McLain, Santiago Cantu, chain carriers. Resurveyed April 20th, 1876.

"I, Felix A. Blucher, special deputy surveyor for Zapata County, do hereby certify that the foregoing survey was made according to law, and that the lines, boundaries and courses of the same are truly described in the foregoing plat and field notes. Felix A. Blucher, Special Deputy Surveyor for Zapata County.

"Examined and recorded Nov. 28th, 1874."

Defendants read in evidence a final grant made by the governor of Tamaulipas, together with a plat and field notes of a survey made by Antonio Canales, Surveyor General of Tamaulipas, for Pedro Bustamente, as follows (translation):

"[Third Seal.] National Coat of arms for the years. Fifty Cents.

"Francisco Vital Fernandez, Brigadier General in the Army of the Mexican Republic, and Governor of the State of Tamaulipas; whereas the citizen Pedro Bustamente has paid into the treasury of the State the fifty dollars, at which were valued the five leagues of pasture land that he had denounced in the place called Las Comitas as appears from the expediente made to that effect, using the powers conferred upon me by the law upon the subject, I have resolved to grant to the citizen Pedro Bustamente, for himself, his heirs and successors, the indicated five leagues of pasture land according to the limits and demarcations appearing in the annexed map. Wherefore, I command the authorities and inhabitants of the state to hold and recognize the said citizen Pedro Bustamente as the legitimate master and...