Kenedy Pasture Co. v. State

• Citation: 196 S.W. 287
• Decision Date: 24 January 1917
• Docket Number: (No. 5626.)
• Parties: KENEDY PASTURE CO. et al. v. STATE et al.
• Court: Court of Appeals of Texas

196 S.W. 287

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

(No. 5626.)

Court of Civil Appeals of Texas.

January 24, 1917.

On Motion for Rehearing, June 20, 1917.

Appeal from District Court, Travis County; Charles A. Wilcox, Judge.

Trespass to try title by the state of Texas and others against the Kenedy Pasture Company and others. Judgment for plaintiffs, and defendants appeal. Affirmed, and rehearing denied in part and in part granted.

Jas. B. Wells, of Brownsville, and White, Cartledge & Graves, of Austin, for appellant Kenedy Pasture Co. Jas. B. Wells, of Brownsville, G. R. Scott, Boone & Pope, of Corpus Christi, and White, Cartledge & Graves, of Austin, for appellants J. G. Kenedy and others. Ball & Seeligson and C. W. Trueheart, all of San Antonio, for appellees Tarut and others. John L. Terrell, of Dallas, and Lyndsay D. Hawkins, of Austin, for appellees Tindall and others. B. F. Looney, Atty. Gen., and G. B. Smedley, Asst. Atty. Gen., for the State.

JENKINS, J.

This suit was brought by the state of Texas against the Kenedy Pasture Company, a corporation, John G. Kenedy, and 126 other defendants, whose number was increased by consolidation with other suits, and by pleas of intervention, most of whom were Mexicans, claiming as the heirs of Pedro Villareal, and assignees of such heirs. Said Mexican defendants and those claiming under them, except the Kenedy Pasture Company, will hereinafter be referred to as the "Mexican Defendants." The defendants G. T. Tindall and wife, A. C. Tindall, Mrs. E. M. Jeffers, a widow, George M. Crocker, Frank E. Crocker, Arthur Verne Crocker, and Ann Boyd, who purchased from the state 19 sections of school land involved herein, will hereinafter be referred to as "Purchasers from the State." The defendants Byrdie T. Tarut, Chas. Tarut, R. L. Ball, Aggie F. Ramsey, L. O. Ramsey, B. F. Deatherage, Ophie F. Collins, Ermengard Collins, Robert S. Collins, and D. W. Light will hereinafter be referred to as the "Fant Heirs."

The land described in the state's petition may be briefly described as bounded on the north by Olmos creek; on the east by El Paistle and Las Barrosas grants; on the south by Las Barrosas and the San Antonio del Encinal grants; and on the west by the Santa Rosa de Arriba grant.

The following sketch will aid in understanding both the issues involved and the findings of facts: NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

According to the contention of appellants, these surveys should be located about a mile further west.

The alternate sections cover the Abajo.

The Crocker sections 1 to 11 lie west of the Abajo as here located.

Upon the land marked on the above sketch "Santa Rosa de Abajo," as its location is claimed by the state, the purchasers from the state, and the Fant heirs, alternate railroad certificates have been located, and are claimed by defendants herein as the owners of such certificates and the land located by virtue of the same, and as purchasers from the state of the school sections. The defendants the Kenedy Pasture Company, John G. Kenedy, and the Mexican defendants claim that the Santa Rosa de Abajo (the lower Santa Rosa, which will hereafter be referred to as the Abajo) is a valid Mexican grant, to the extent, at least, of conferring an equitable title upon the grantee, Pedro Villareal, and those claiming under him, and that said survey is located about 1,900 varas further west than as claimed by the state, the purchasers from the state, and the Fant heirs.

The issues raised by the pleadings are the validity of the Abajo grant, the boundaries of said grant, estoppel, innocent purchase, and limitation.

Findings of Fact.

(1) La Parra, a 15-league survey, was surveyed by Fuentes, August, 15, 1832.

(2) El Paistle, Santa Rosa de Abajo, Santa Rosa de Arriba (hereinafter referred to as Arriba), and Las Barrosas were surveyed by

the same surveyor, viz. Canales, at about the same time, to wit, in December, 1832.

(3) As originally surveyed, El Paistle adjoins La Parra, Abajo adjoins El Paistle, and Arriba adjoins Abajo.

(4) The original field notes of La Parra, Abajo, and Arriba appear in the record; the original field notes of El Paistle do not.

(5) La Parra, El Paistle, and Arriba were confirmed by the state by the act of February 10, 1852; Abajo has never been confirmed.

(6) On April 12, 1848, the governor of Tamaulipas issued a grant to Pedro Villareal for the Abajo survey. This grant, having attached thereto as a part thereof the field notes of said survey, purporting to have been legally made for Pedro Villareal in December, 1832, and reciting that said Villareal paid into the treasury of said state on January 18, 1833, the appraised value of said land ($165), was filed by Col. W. A. Craft, as agent for the heirs of Pedro Villareal, with the county clerk of Cameron county, where the land was situated, August 8, 1879, and by said clerk recorded in the deed records of said county on same day.

(7) Said grant was filed by said Craft with the county surveyor of Cameron county, August 18, 1879, with request that said surveyor survey said Abajo grant, and return the field notes to the general land office.

(8) On November 28, 1879, J. J. Cocke, county surveyor of Cameron county, surveyed the Abajo grant, as requested by Col. Craft, recorded his field notes in his office, and returned the same to the land office, and the same were there filed December 31, 1879, and indorsed, "Covered by S. 2029 and 2030 and S. 2376 to 2392; otherwise correct map of Cameron, Hidalgo, and Nueces Co.'s, June 11/86."

(9) The said field notes of Abajo, as made by J. J. Cocke for the heirs of Villareal, located the Abajo as claimed herein by the state, the purchasers from the state, and the Fant heirs.

(10) On February 9, 1880, J. J. Parker filed an application with J. J. Cocke, the county surveyor of Cameron county, for a survey of five sections of land, and again on April 23, 1880, for 12 sections, on land included in the Abajo as surveyed by him for the heirs of Villareal. Those files were abandoned, and in lieu thereof said Parker on November 9, 1881, filed the following application:

                            "Santa Rosa, November 6th, 1881
                

"J. J. Cocke, Esq., Surveyor of Cameron Co. Tex.—Sir: You will please cause to be surveyed for me as soon as possible (5) five alternate land certificates in alternate sections of the Central & Montgomery R. R. Co., Nos. 368, 369, 370, 371, and 372, locating the same upon the east side of a portion of a tract of land in Cameron county, Texas, known as Santa Rosa de Abajo, lying adjoining upon the eastern side of the tract of land known as Santa Rosa now occupied by me; and also survey for me in alternate sections the (12) twelve alternate land certificates of the Gulf, Colorado & Santa Fé R. R. Co., Nos. 1085, 1086, 1087, 1089, 1090, 1091, 1092, 1093, 1094, 1095, and 1096, surveying and locating the last-mentioned twelve certificates upon the western portion of said tract of land known as Santa Rosa de Abajo, in said county of Cameron and state of Texas, all of which said certificates are on file in your office.

                    "[Signed]                    F. J. Parker."
                

(11) By virtue of these certificates and two other alternate certificates, J. J. Cocke, county surveyor of Cameron county, surveyed for F. J. Parker 19 sections, with their alternates for the school fund, and the field notes thereof were filed in the land office January 25, 1882. The said 19 sections and alternates cover the Abajo as its location is claimed by appellees.

(12) The 19 sections above referred to were patented October 10, 11, 12, 13, and 31, 1888.

(13) Nine of said alternate sections are claimed by the defendants referred to in the opinion herein as the purchasers from the state.

(14) In 1859, F. A. Blucher, county surveyor of Cameron county, by virtue of the act of 1852, surveyed, for parties claiming to be the owners thereof, La Parra, El Paistle, and Arriba, and said grants were patented as surveyed by him.

(15) El Paistle and Las Barrosas were surveyed for Mifflin Kenedy, who procured patents on same as surveyed by Blucher.

(16) Blucher's surveys located La Parra, El Paistle, Arriba, and Las Barrosas as claimed by appellees.

(17) On May 29, 1882, Mifflin Kenedy conveyed to the Kenedy Pasture Company the Paistle and Barrosas surveys, describing the same as described in their patents.

(18) At the time Canales made the Abajo survey, Pedro Villareal was in possession of the same, and remained in possession, in person or by agents, using the same for grazing stock, until 1850 or 1860, since which time no one claiming under said Villareal has occupied or been in possession of said tract of land or any part thereof, and the evidence does not show that Villareal, or his heirs or assigns, have ever paid any taxes thereon.

(19) In 1878, or prior thereto, F. J. Parker erected a fence approximately along the west line of Abajo, as claimed by appellees, extending the same so as to inclose the Arriba and other lands to the west, then claimed by Parker.

(20) In 1883 the Kenedy Pasture Company erected a fence along the west line of the El Paistle as herein claimed by it, inclosing that survey and other lands owned by it to the east.

(21) In 1886 the Kenedy Pasture Company erected a fence along the north line of Las Barrosas as patented.

(22) Eleven sections claimed by the purchasers from the state lie west of the Abajo as claimed by appellees, but are included in said survey, if the same be located as claimed by appellants.

(23) The Kenedy Pasture Company is the owner of El Paistle and Las Barrosas; John G. Kenedy et al. have a chain of title from the heirs of Pedro Villareal to the Abajo grant; the Fant heirs are the owners, under a regular chain of title from the patentee to the 19 odd sections located by Parker, and also of the Arriba. The purchasers from the state bought upon condition of settlement, paying 1/40 of the purchase...