Kenedy Pasture Co. v. State

• Decision Date: 18 May 1921
• Docket Number: (No. 3043.)
• Citation: 231 S.W. 683
• Parties: KENEDY PASTURE CO. et al. v. STATE et al.
• Court: Texas Supreme Court

Page 683

231 S.W. 683

KENEDY PASTURE CO. et al. v. STATE et al.

(No. 3043.)

Supreme Court of Texas.

May 18, 1921.

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

Trespass to try title by the State of Texas and others against the Kenedy Pasture Company and others. Judgment for plaintiffs, and the defendants appealed to the Court of Civil Appeals, which affirmed the judgment and denied rehearing in part and granted it in part (196 S. W. 287), and the defendants bring error. Judgment of the trial court and of the Court of Civil Appeals affirmed.

G. R. Scott, Boone & Pope, of Corpus Christi, James B. Wells, of Brownsville, Ike D. White and E. Cartledge, both of Austin, and Herbert Davenport, of Brownsville, for plaintiffs in error.

B. F. Looney, Atty. Gen., G. B. Smedley, Asst. Atty. Gen., Ball & Seeligson and C. W. Trueheart, all of San Antonio, John L. Terrell, of Dallas, and Lyndsay D. Hawkins, of Breckenridge, for defendants in error.

PHILLIPS, C. J.

This suit involves about 30,000 acres of land in Willacy County— formerly a part of Cameron County. There are a great many parties to it and a number of complicated issues.

In the main, it is a controversy between the State and those holding under the State, on the one side, and John G. Kenedy, a large number of Mexicans, some interveners and the Kenedy Pasture Company, a corporation, on the other, concerning the title and the location of what the latter parties claim is the Santa Rosa de Abajo Grant, a grant made by the Mexican Government, and to which all of these parties except the Kenedy Pasture Company assert title.

The Abajo Grant, if located as these parties contend it should be, comprises part of forty-nine sections of land, now claimed by the State and those holding under the State, besides an additional strip of land and an insert lying immediately to the west of those sections.

The Kenedy Pasture Company claims certain of these forty-nine sections and parts of sections as included within the real boundaries of the original Mexican grants, the El Paistle and the Las Barrosas, both owned by it and lying immediately to the east and south of the sections. To such sections and parts of sections it also asserts a limitation title.

The suit also embraces a controversy between those of the parties called the Fant Heirs and those claiming the Abajo Grant, over the strip and the inset lying immediately west of the forty-nine sections. This strip and inset are claimed by the latter as within the true lines of the Abajo Grant. The Fant Heirs claim the same land as a part of the Arriba Grant, a survey owned by them and lying to the west of the Abajo and the forty-nine sections.

The effect of the contention of Kenedy and the other parties adverse to the State and the claimants under the State, is to locate the western boundary lines respectively of the Abajo, the El Paistle and the Las Barrosas Grants more than a mile further west than as maintained by the latter, and the northern line of the Las Barrosas slightly further north.

We subjoin two sketches which show with approximate correctness the situation of these grants and the land in controversy. The first shows the grants if located as contended for by the State and the parties in common with it. The broken lines indicated on the second show their location according to the contention of the parties adverse to the State and the claimants under it.

The El Paistle and Las Barrosas Grants were confirmed by the Legislature in 1852. There is no question as to their validity. They were surveyed and patented for Mifflin Kenedy in 1873. This was prior to the locations made on the Abajo Grant under the authority of the State. They were conveyed in 1892 by Mifflin Kenedy to the Kenedy Pasture Company.

In 1904 the State, in a suit against D. R. Fant and D. Sullivan, recovered, as excess land of the Arriba Grant, what is delineated on the sketches as the "Crocker Land"— the tier of eleven sections lying to the west of the other thirty-eight sections here involved.

The State's suit, here, for the benefit of itself and those holding title under it, was for the land comprising these forty-nine sections. In its petition the land was substantially described as being bounded on the north by Olmos Creek; on the east by the west boundary lines of the El Paistle and Las Barrosas Grants as patented; on the south by the Las Barrosas as patented; and on the west by the east boundary line of the Arriba as established by the judgment in the suit of the State against D. R. Fant and D. Sullivan.

The thirty-eight numbered sections, other than the Crocker Land, shown on the sketches:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

viz., Sections Nos. 81, 82, 83, 1, 3, 80, 79, 2, 4, 84, 77, 78, 61, 60, 76, 75, 62, 59, 73, 74, 63, 58, 72, 65, 64, 57, 71, 66, 55, 56, 70, 67, 54, 51, 69, 68, 53, and 52, were surveyed in the years 1879 and 1881 under railroad certificates owned by F. J. Parker, the nineteen odd numbered sections being surveyed for Parker, and the nineteen even numbered sections for the School Fund. The nineteen odd numbered sections were patented to Parker in 1888.

The Fant Heirs hold title to these nineteen odd numbered sections under the patents issued Parker: viz., Sections Nos. 81, 83, 1, 3, 79, 77, 61, 75, 59, 73, 63, 65, 57, 71, 55, 67, 51, 69, and 53.

Of the nineteen even numbered sections surveyed for the School Fund, nine: viz., Sections Nos. 66, 64, 72, 54, 70, 62, 76, 78, and 74, were sold to settlers in 1898, 1904 and 1908 on condition of settlement, the payment of one-fortieth of the purchase price and the execution by the purchasers of their obligations for the balance.

The remaining ten of the even numbered sections are held by the State for the School Fund, unsold.

The eleven sections delineated on the sketches as the "Crocker Land," lying to the west of the thirty-eight sections, were likewise sold by the State to the Crockers, in 1908 and 1909, on condition of settlement, payment of one-fortieth of the purchase money and execution by the purchasers of their obligations for the balance.

These purchasers from the State all completed their occupancy as required by law. Since their purchase they have continuously held possession of these several sections, as have the Fant Heirs of the nineteen sections held under the Parker title from the State, interrupted only by the extension of a fence by the Kenedy Pasture Company along what it claims are the true western lines of the El Paistle and the Las Barrosas. This fence was extended not in right of the Abajo Grant, but in right only of the Kenedy Pasture Company's claim as to the true location of the El Paistle and Las Barrosas. The right of these parties holding under the State remained unquestioned by the adverse claimants to the Abajo until the filing of a suit in Cameron County in 1904, which was consolidated with this suit.

Under the contention of the State and those in common with it as to the location of the Abajo Grant, the thirty-eight sections surveyed under the railroad certificates, alone, are upon the Abajo, and the Crocker eleven sections lie without it and to the west.

According to the contention of Kenedy and the other parties adverse to the state and its claimants as to the location of the El Paistle and Las Barrosas Grants, those two grants, as shown by the second sketch, conflict with the sections along the east of the thirty-eighth sections, with Crocker Section No. 1 and a part of Crocker Section No. 2 and the southern portions of Sections 68 and 69 and a part of the southern portion of Section 53; and if the Abajo be located as contended by them, it includes all of the remaining land of the forty-nine sections and, in addition, the strip and the inset to the west of them.

The trial court and Court of Civil Appeals sustained the contention of the State and its claimants as to the location of all three of these grants.

The facts concerning the Mexican title to the Abajo Grant asserted by Kenedy, the Mexican defendants and the interveners, and notice of it by the claimants under the State, are substantially these:

In 1832, Antonio Canales, a Survey General of the Mexican State of Tamaulipas, surveyed the land claimed to be comprised by the Abajo Grant and which then lay within the State of Tamaulipas, for Pedro Villareal, who was in possession of the land at that time. Following the survey and prior to 1835, Villareal paid to the proper Mexican authorities the purchase money for the land —$165.00, the amount at which it was appraised. His expediente was forwarded to the Governor of the State of Tamaulipas, and his right to receive final title or a grant was recognized by the authorities of the State.

Years later, on April 12, 1848, after the establishment of Texas independence and after the signing of the Treaty of Guadalupe Hidalgo, a purported grant to the land was issued to Villareal by the Governor of the State of Tamaulipas.

Villareal was in possession of the land in person or by representatives until 1850 or 1860. Since that time there has never been any possession by him or any one claiming under him. He nor any one claiming under him has ever paid any taxes on the land. It was rendered for taxes for his heirs but twice, in 1880 and 1881, by W. A. Crafts as attorney. In 1882 it was assessed against "Unknown Owners."

The grant issued to Villareal by the Mexican Governor of Tamaulipas and the field notes claimed to have been made by Canales, were filed by W. A. Crafts as attorney for the heirs of Villareal in the office of the County Clerk of Cameron County on August 8, 1879, and recorded as one instrument.

The field notes were filed by Crafts with the County Surveyor of Cameron County and a re-survey of the land requested, August 18, 1879.

In November, 1879, the County Surveyor made the re-survey as requested by Crafts. The field notes of the re-survey were filed in the...