Heard v. Town of Refugio

• Decision Date: 24 March 1937
• Docket Number: No. 7169.,7169.
• Citation: 103 S.W.2d 728
• Parties: HEARD et al. v. TOWN OF REFUGIO.
• Court: Texas Supreme Court

Page 728

103 S.W.2d 728

HEARD et al. v. TOWN OF REFUGIO.

No. 7169.

Supreme Court of Texas.

March 24, 1937.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by Town of Refugio against J. F. B. Heard and others. Judgment for defendants was reversed in part by the Court of Civil Appeals [95 S.W.(2d) 1008], and defendants bring error.

Judgments of the trial court and of the Court of Appeals reversed in part, and cause remanded with direction.

Kendall & Lawler, of Houston, Swearingen & Miller, of San Antonio, and J. Turner Vance, of Refugio, for plaintiffs in error.

Terrell, Davis, Hall & Clemens and John W. Gaines, all of San Antonio, for defendant in error.

William McCraw, Atty. Gen., and H. Grady Chandler and Russell Rentfro, Asst. Attys. Gen., amici curiæ.

SMEDLEY, Commissioner.

Defendant in error, the Town of Refugio, sued plaintiffs in error for the title and possession of 43.9 acres of land within the bounds of the four leagues granted by Coahuila and Texas to the town and upon which the townsite is situated. The area involved in the suit, except a tract of 5.28 acres, is a part of the bed of Mission river which runs nearly through the center of the four league grant, crossing its west and south lines. The boundaries of the river bed area were disputed, but it became unnecessary for the trial court to fix the boundaries; its judgment (except as to a tract adjudged to the plaintiff on the defendants' disclaimer) being that the plaintiff take nothing by its suit. The Court of Civil Appeals affirmed the trial court's judgment as to the 5.28-acre tract, reversed it as to the remainder of the land, and rendered judgment in favor of the Town of Refugio for the title and possession of all of the land for which it sued except the 5.28-acre tract. 95 S.W.(2d) 1008. Since the Town of Refugio filed no application for writ of error, the question to be determined here is the ownership of the river bed area. In granting the application for writ of error the tentative opinion was expressed that the title to the river bed is in the state.

The Court of Civil Appeals assumed for the purpose of the appeal that the Town of Refugio acquired the fee-simple title to the river bed and considered and decided as the controlling issue in the case the question whether deeds executed by the town to certain farm lots on the river had the effect of conveying the bed of the stream. In our opinion it is necessary to determine whether the sovereign has ever parted with its title to the river bed area in controversy, for, if it has not, the title to that area should not be adjudged either to plaintiffs in error or to defendant in error.

The evidence offered on the trial to show the origin and nature of the title of the Town of Refugio to the four leagues of land consisted of a copy of the opinion of the Supreme Court in the case of the Town of Refugio v. Byrne, 25 Tex. 193, and a copy of an act of the Republic of Texas approved February 1, 1842 (2 Gammel's Laws, p. 758). The opinion in the Byrne Case states that the following facts were proven in the trial of that case: In the year 1830 James Power, one of the empresarios of Power and Hewitson's colony, petitioned the executive department of Coahuila and Texas for permission to found a town out of the four hundred families of which his colony at the mission of Refugio was to be composed, in conformity with the thirty-fifth article of the Colonization Law. (Decree No. 16, Laws and Decrees of Coahuila and Texas, being the Colonization Law of March 24, 1825, 1 Gammel's Laws, pp. 125-133). The executive, in the year 1831, authorized the founding of the town, and in the year 1834 four leagues were surveyed for the town in the form of a square, making the public square the center, the lines of the survey being described by natural objects and by certain artificial land marks. Lots in the town were surveyed and titles were executed by Vidaurri, commissioner of the colony. During the same year the town was organized as a colonial town. There was no formal grant or paper title from the government to the four leagues.

The first section of the act of the Republic approved February 1, 1842, declared the citizens of the Town of Refugio to be a body politic and corporate and provided that the town "may hold and dispose of real and personal estate in said town." The second section extended the provisions of the charter of the town of Victoria to the Town of Refugio. By the third section of the act the Commissioner of the Land Office was authorized and required to issue to the mayor and aldermen, and their successors in office, of the Town of Refugio, a patent "for the four leagues of land known as the tract of the Mission of Refugio, and on which said town now stands." Patent was never issued.

Plaintiffs in error in proof of their titles introduced on the trial deeds conveying farm lots adjoining, and on both sides of, the river. These deeds, executed in the name of the town by the mayor and secretary, were made in the years 1848, 1850, 1851, and 1852. They described the land conveyed by farm lot numbers and made reference to a survey or plat made by George Lyons. Proof was made that no map or plat by George Lyons can now be found among the records of the Town of Refugio. A map of the town tract made by E. S. Winsor, dated August 29, 1878, and formally approved and adopted by the town council, was admitted in evidence and accompanies the record. It shows the Mission river crossing the four-league tract from the northwest to the southeast, the town proper subdivided into lots and blocks, a commons north of the town proper, and the remainder of the grant divided into farm lots or tracts of various sizes. The farm lots and other lots nearest the river do not cross the river but are so platted as to have it for boundary.

About ten miles below the town the river empties into a bay, which is an arm of the gulf. The trial court found that the river, except in times of drought, has a surface flow which, however, is normally of small volume, being of a depth varying from ankle deep to two feet, and that the average width of the bed of the stream from its mouth up to and including the area in controversy is thirty feet or more measured from the foot of the banks at the top of the water in its ordinary stage. These findings are supported by the evidence. The county surveyor and another witness testified without contradiction that the width of the stream between the cut banks is more than thirty feet. According to undisputed evidence in the record the river has well defined bed and banks, both cut banks near the water and high banks, the average width of the river bed area between the high banks being from 150 to 275 feet. It is further shown by undisputed evidence that the river is normally a flowing stream, but that sometimes following a prolonged drought of from six to nine weeks it ceases to flow and stands in holes. Mission river, while not navigable in fact, is undoubtedly a perennial river and a navigable stream as defined by article 5302 of the Revised Civil Statutes of 1925, the Act of 1837, p. 63. State of Texas v. Bradford, 121 Tex. 515, 531, 50 S.W.(2d) 1065; Motl v. Boyd, 116 Tex. 82, 286 S.W. 458; Humphreys-Mexia Co. v. Arseneaus, 116 Tex. 603, 297 S.W. 225, 53 A.L.R. 1147; Hoefs v. Short, 114 Tex. 501, 273 S.W. 785, 40 A.L.R. 833.

The title of the Town of Refugio to the four leagues of land had its origin in a compliance with the terms and provisions of the Colonization Law of Coahuila and Texas, the Act of March 24, 1825. It was held in Town of Refugio v. Byrne, 25 Tex. 193, that when the town was established in the manner prescribed and a municipal corporation organized "the law operated a dedication, reservation or grant of the lands which appertained to it, for the purposes of its foundation," that no formal grant to the town was contemplated, and that none other was necessary than that contained in the law. It was further held that the confirmation of the original title by the Republic of Texas in the Act of 1842 related back to the inception of the title under the prior government.

While the title acquired by the Town of Refugio under the colonization law may have been merely an incipient or equitable title, as is suggested in Town of Refugio v. Byrne, or may have been subject to the control and disposition of the sovereign (Dittmar v. Dignowitty, 78 Tex. 22, 14 S.W. 268, Pence v. Cobb [Tex.Civ. App.] 155 S.W. 608, 610), the nature of the original title is made unimportant by the act of confirmation. That act, by authorizing and requiring the Commissioner of the Land Office to issue to the mayor and aldermen of the town and their successors a patent for the four leagues of land, had the effect of vesting in the town as a corporation the legal title and absolute ownership of all of the land (and no more) that was dedicated, reserved, or granted to the town by the Colonization Law. Town of Refugio v. Strauch (Tex.Com.App.) 29 S. W.(2d) 1041.

Did the title to that portion of the bed of the Mission river which lies within the outer boundaries of the four leagues of land surveyed for the town in the year 1834 pass to the Town of Refugio by or under the grant then made? The question must be answered in the negative if article 5302 of the Revised Civil Statutes of 1925 is applicable, for that statute prohibits the making of surveys across streams having an average width of thirty feet or more, and has been construed as reserving the title to the beds of such streams to the sovereign. City of Austin v. Hall, 93 Tex. 591, 57 S.W. 563; State v. Bradford, 121 Tex. 515, 50 S.W.(2d) 1065; Chicago, R. I., etc., Ry. Co. v. Tarrant County Water Control & Improvement District No. 1, 123 Tex. 432, 73 S.W.(2d) 55; Diversion Lake Club v. Heath, 126 Tex. 129, 86 S.W.(2d) 441. In the Bradford Case it is held that a survey and patent across such stream, while otherwise...