Lewis v. San Antonio

• Decision Date: 01 January 1851
• Citation: 7 Tex. 288
• Parties: LEWIS AND OTHERS v. SAN ANTONIO.
• Court: Texas Supreme Court

7 Tex. 288

LEWIS AND OTHERS

v.SAN ANTONIO.

Supreme Court of Texas.

1851.

The possession of land, uninterrupted and exclusive, with the exercise of ownership, for the term of twenty years, ( quere if not for the term of ten years,) raises a presumption of a grant, under which the possession must be supposed to have commenced, unless there are circumstances which rebut such presumption and show that there could not have been a grant. (Note 48.)

The act of 1836 (Hart. Dig., art. 125) introduced the common-law rules of evidence as then practiced and understood, and those rules regulate the action of the court in the adjudication of rights accruing as well before as after their introduction; and it seems that the principle applies to those presumptions which are equivalent to muniments of title.

Title by prescription, under the Spanish law, was acquired, even against the king, by forty years' uninterrupted possession.

Where the absence of a testimonio is accounted for, as by its loss, it is not necessary to produce a copy of the original or protocol, but the existence and contents of the testimonio may be proved by parol; the better opinion being, that there are no degrees in secondary evidence, so far as admissibility is concerned--it being left to the jury, however, to determine, from all the facts of the case, whether the party ought to have produced more satisfactory secondary evidence. But quere. (Note 49.)

The citizens of a municipal corporation are competent witnesses on behalf of the corporation in an action for the recovery of lands. [ Quere whether the citizens were entitled to rights of common in the lands in controversy.--REP.]

Where the Spanish Government had granted a large body of land, say six leagues, to a city, as exidos, and the Congress of Coahuila and Texas, assuming the city had no title, granted it two leagues, a question of fact arose whether the city authorities had accepted of the two-league grant in lieu of the claim for six leagues; but the court held that no acts of the city authorities could have prejudiced the title of the city to the six leagues.

The general rule is, that where an individual acts in ignorance of his rights, he shall not be prejudiced thereby.

The regrant of a part of a defeasible grant by the officers of the King of Spain would not affect the title of the grantee to what remained.

The Congress of the Republic incorporated “the citizens of the town” of San Antonio, reciting, “that whereas there being sundry public lots of ground in said corporation which are now useless, the aldermen, &c., in conjunction with the County Court, are authorized and empowered to alienate said lots, or such portion thereof as they may deem advisable;” a subsequent act defined the limits of the town, as “all that tract of land originally granted to and composing said city, with its precincts,” giving them authority to sell and alienate such public lots or parcels of land as may lie within their jurisdiction; a subsequent act incorporated the city, with the same provision as to its limits, and repealed all former acts, and authorized the sale of public lots: Held, That these acts were sufficient to confirm to the city the exidos which had been originally granted to her.

A right to the use of land entitles the usee to an action against another who attempts to appropriate it.

A grant or dedication of land to the use of a town removed it from commerce and individual appropriation.

No law of the Indies is known to the court which prohibited the grant of more than four leagues of land to a town as exidos.

Appeal from Bexar. This was a suit instituted on the part of the city of San Antonio, against the appellants, to recover a certain tract or parcel of land set out and described in the petition by metes and bounds. The petition alleged an original grant or concession for the lands claimed, made by the Spanish authorities when that Government exercised dominion over this country, to the people and inhabitants of the town of San Fernando, now San Antonio, at the time of its foundation; that the said grant or concession existed and was preserved in the archives of Bexar for many years, and was seen as late as the year 1834, but has since been lost or destroyed; that the city authorities of San Fernando, now San Antonio, had, for more than one hundred years, exercised jurisdiction and ownership over the lands embraced within the said boundaries; and that the political authorities of the former Governments had always refused to grant lands within the said limits, on the ground that the same belonged to the city as its exidos.

It was further alleged that the defendants had entered upon this land, and, totally disregarding the rights of the city, had procured locations and surveys to be made on the same, and were setting up, by virtue of such locations and surveys, titles adverse to the city. The petition was afterwards amended; by the amendment the city set up an act of the Congress of the Republic of Texas, passed December 14th, 1837, and particularly the second and eighth sections of said act, which granted and confirmed to the said city all the lands within its ancient limits. They prayed that the defendants might be perpetually enjoined, and for general relief.

The answers denied generally the facts stated in the petition; denied that any such grant ever was made; insisted that it would have been contrary to law; that the land was a part of the public domain; that the decree of the Congress of Coahuila and Texas, giving two leagues of land to the city, was proof that no such original grant was made; and set up their title as valid. There was a verdict, and a decree rendered thereon, in favor of the city. The defendants asked for a new trial, which was refused; whereupon they appealed. The evidence introduced and the points made will be found in the opinion of the court and in the briefs of the attorneys.

Howard and Vanderlip, for appellants.

I. In this case, parol evidence of the grant ought not to have been admitted. It was not the best evidence. The nature of the case disclosed better testimony. If there was a grant, the duplicate original must exist, either at Madrid or in Mexico, among the archives of the Spanish Government. This is the well-settled Spanish law and usage. The plaintiffs showed no effort to procure a copy, which was, of course, the best evidence. (1 Greenleaf, secs. 82, 84, and notes; Hilts v. Colvin, 14 Johns. R., 182; Dumas v. Powell, 3 Dev. R., 103; Coman v. The State, 4 Blackf. R., 241.)

The presumption is, not only that the grant exists, but that the foreign Government would give a copy (1 Greenleaf, sec. 487.) “The best evidence is to be produced of which the nature of the case admits.” (1 Phill. Ev., (Am. ed.,) 217, and note 414; and 1 Phill. Ev., 457, as to examined copies, note 871; p. 1240, as to counterparts.) The copy must be produced, if within the reach of the party. (Note 868, vol. 3, p. 1233.) There is no doubt that, when the original is lost, copies of enrollments are the next best evidence, and must be produced. (1 Phill. Ev., 463, vol. 3, note 868, p. 1233-1243.) Under the Spanish and Mexican law, the party would have been required to have produced a copy from the protocol, and would have been entitled to it on proof of loss. (3 C. & H. Phil. Ev., 1259.) The original remained on file in the public office from which it emanated; and it was the duty of the officer, under the law, to give a copy to the grantee if his testimonio, or the duplicate given to him for title, was lost or destroyed. The manner of obtaining these copies is fully explained in the Dic. Legislacion, Verbo INSTRUMENTO PUBLICO.

There are some cases which go the length of saying, that where a deed or private grant is out of the State, secondary evidence of its contents may be resorted to; but we are not aware of any case that goes the length of admitting parol evidence of a public grant out of the State, without first showing some effort to procure a copy from the public archives. If, on application, the foreign Government refused a copy, then parol evidence would be competent. That the search in this case, either for the original or a copy, was insufficient, vide 3 vol Phill. Ev., p. 1223, note 867. It is well settled that when a deed has been executed interchangeably, a registered copy cannot be received in evidence without diligence to procure the counterpart. (Poignard v. Smith, 8 Pick. R., 272; 6 T. R., 236.) It cannot be doubted that a registry copy is better evidence than parol. (8 Pick., 277.)

II. The witnesses were not competent in this case, because it appeared that, as inhabitants of the city of San Antonio, they were entitled to pasturage, stone, wood, and timber within the town limits. This constituted such an interest in the event of the suit as rendered them incompetent. (1 Greenleaf, sec. 331, note 3.) The inhabitants, in this case, are individually and personally interested.

Rated inhabitants are excluded in England, independently of certain statutes which render them competent.

The American doctrine is, that inhabitants of a town are competent if they have no other interest than that of mere corporators; but if they have a direct personal interest, such as a right of way, common, or the right to take wood, timber, &c., they are incompetent. Why should a party be admitted to establish his right to have pasturage, and a right to take wood, timber and stone, as a corporator or inhabitant, from eight leagues of land? Such a decision overturns every principle of evidence as to interest, (3 Phill. Ev., p. 1541.)

III. The contents of the pretended grant were not sufficiently proven, nor was its execution proven in the manner required to let in secondary evidence. The witnesses state three different grants: one from the King of Spain, one from the captain general, and another from some officer in Mexico. Such proofs of the contents of a lost grant, or its...