Manry v. Robison

• Decision Date: 22 December 1932
• Docket Number: No. 5388.,5388.
• Citation: Manry v. Robison, 56 S.W.2d 438 (Tex. 1932)
• Parties: MANRY v. ROBISON et al.
• Court: Texas Supreme Court

56 S.W.2d 438

MANRY v. ROBISON et al.

No. 5388.

Supreme Court of Texas.

December 22, 1932.

COPYRIGHT MATERIAL OMITTED

Original petition for mandamus on the relation of L. V. Manry against J. T. Robison and others, to compel one of respondents, as commissioner of the General Land Office, to issue a mineral permit to prospect for oil and gas on certain land. One of the other respondents also sought affirmative relief by way of mandamus to compel the commissioner to sell to him the land in controversy.

Writs of mandamus refused.

Ben H. Powell, of Austin, for relator.

James V. Allred, Atty. Gen., Geo. T. Wilson and R. W. Yarborough, Asst. Attys. Gen., and Andrews, Streetman, Logue & Mobley, Homer Mabry, Rex G. Baker, John Q. Weatherly, and E. E. Townes, all of Houston, for respondents.

CURETON, C. J.

This action for original mandamus is by L. V. Manry, relator, against the respondent Walker, Commissioner of the General Land Office, to require the issuance of a mineral permit to prospect for oil and gas, under the terms of designated statutes, upon 124.4 acres of land, embraced in an abandoned bed of the Brazos river, in Fort Bend county. The respondent Cooper seeks affirmative relief by way of mandamus to require the Commissioner to sell him the land under certain statutes and laws of the state. The respondents Sam Rosen, E. H. Hammond, Sugarland Industries, and Humble Oil & Refining Company oppose the issuance of both writs of mandamus, upon the ground that they severally own the land in controversy, and that the state has no power to either lease or sell the same. The respondent Walker contends that the land belongs to the state, but says that neither of the mandamuses prayed for should issue, for reasons which he sets forth in his pleadings.

The land involved is designated on the map attached as "L. V. Manry Sur. No. 1," a portion of which is occupied by water, as shown. This land formed a part of the bed and channel of the Brazos river prior to the year 1914. During the spring of that year, by an avulsive change, the river cut across the neck of the bend, straightened its course, abandoned the land shown as a bed, cut, and has since occupied, a new channel, indicated by the lines between which the words "Brazos River" appear.

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

The land involved is out of the Williams, Allcorn, Little, and Jones leagues, granted to Austin's colonists by Mexico prior to the independence of Texas. All were riparian at the time, except the Allcorn league. During the course of a century, however, the river by erosion cut into that league, and at the time of the avulsion in 1914 the river was touching all four of the surveys. All of the grants were, the relator states, "made in accordance with the laws then prevailing in the Mexican Nation, and passed to the respective grantees such rights, if any, to the bed of the Brazos River as would accrue to grantees from the Mexican Government under the laws then in force in that country." The Brazos river in the locality involved runs generally from the northwest to the southeast, and was in 1824, the date of the earliest grant, and at all times since has been, a navigable stream under the laws of Spain, Mexico, and Texas. The abandoned channel of the river, in the form of a "horse shoe bend," shown on the map, according to the pleadings, "has become a fresh water lake in the sense that during periods of high water practically all of the area included in said abandoned river bed is covered with water, while a large part of said abandoned river bed has water in it all the time; that the balance of said abandoned river bed, being on higher ground, has no water in it or upon it except during high floods; * * * that none of the area involved is within the tide water limits of the Gulf of Mexico." (Italics ours.)

Opinion.

The controlling question is whether or not the abandoned bed of the river is the property of the state or the property of the present owners of the Williams, Little, Jones, and Allcorn leagues. We have concluded that it is the property of the last-named parties, and that the writs of mandamus should be refused. Our reasons for these conclusions will now be stated.

The rule is an elementary one that, in determining the rights of holders of title under Mexican grants, the laws of Mexico in effect when the grants were made control. 9 Texas Jurisprudence, pp. 301, 302, 303, §§ 4, 5; p. 304, § 6; p. 315, § 16; Mitchell v. Bass, 33 Tex. 259, 260; Miller v. Letzerich (Tex. Sup.) 49 S.W.(2d) 404, 406, and authorities there cited; State v. Grubstake Investment Association, 117 Tex. 53, 297 S. W. 202. 4 Ruling Case Law, p. 83, § 14; Smith v. City of Rochester, 92 N. Y. 463, 44 Am. Rep. 393; O'Fallon v. Daggett, 4 Mo. 343, 29 Am. Dec. 640. Under the laws of Mexico in effect at the time of these grants, the bed of the Brazos river then occupied by it was the property of the government, and upon the change of sovereignty became the property of the Republic of Texas. State of Texas v. Grubstake Investment Association, 117 Tex. 53, 297 S. W. 202. Under the Mexican civil law, that portion of the Allcorn league occupied by the river by erosion subsequent to the grant became the property of the sovereign. Las Siete Partidas, Part 3, Title 28, Law 31; Hall's Mexican Law, § 1408. See, also, Mexican Code of 1871 in Hall's Mexican Law, § 1698; authorities post. It is apparent, therefore, that according to the Mexican civil law all the property in controversy belonged to the state at the time of the avulsion in 1914.

When the river, however, abandoned its channel, the abandoned bed under the laws of Mexico became the property of the owners of the riparian or adjacent lands. Hall's Mexican Law, §§ 1399, 1408. See, also, section 1698; Johnston's Civil Law of Spain, p. 102; Schmidt's Civil Law of Spain and Mexico, p. 50, art. 214; White's New Recopilacion of the Laws of Spain, etc., vol. 1, p. 90; Las Siete Partidas, Part 3, Title 28, Law 31; State v. Grubstake Investment Association, 117 Tex. 53, 297 S. W. 202; Farnham on Waters, vol. 1, § 49.

Hall's Mexican Law, in part, declares:

"Sec. 1399. Beds of Streams.—The bed, mother, or ground where the running waters go must be divided between the riparian proprietors according to the frontage of their estates, in case of remaining dry through the effect of the weather, by any event of vis major, act of God, or by the change of the course of the water."

"Sec. 1408. Change of the Course of the River—Overflows—Increase of Land.—If a river changes its course for a new place, leaving the old one dry, this will be of the owners of the immediate estates, each one taking so much thereof as may be equal to the frontage of his estate; and the owners of those where it newly runs lose the dominion of the new bed, by its being made public as the river, and as the bed which is abandoned was." (Italics ours.)

The other Mexican and Spanish authorities cited, including the Partidas, state the rule in the same manner as Hall.

Associate Justice Greenwood, in the Grubstake Investment Association Case, supra, quotes the rule from the Partidas, and analyzes and applies it in a manner which conclusively shows that a river bed, under the Mexican civil law, upon abandonment becomes the property of the adjacent landowners.

The Roman law, including the Institutes of Justinian, was the basis of the Partidas and the laws of Spain and Mexico. Under the Roman law, the ownership of river beds, while still occupied as such, seems to have been involved in some doubt. The American courts, however, have generally regarded it as placing the title to the soil beneath running water in the public. Farnham on Water Rights, vol. 1, § 49; State v. Grubstake Investment Association, supra; Buckland's Roman Law, pp. 212, 213; Canal Appraisers of New York v. People, 17 Wend. (N. Y.) 571. But as to the ownership of the abandoned beds of rivers, the Roman law left no room for doubt. Under that system of laws the abandoned beds of rivers became the property of the riparians. Moyle's Institutes of Justinian, p. 35; Scott's Civil Law, vol. 9, pp. 156, 157, 167, 174 (Justinian's Digest); Bowyer's Modern Civil Law, p. 85; Dropsie's MacKeldey's Roman Law, § 271; Canal Appraisers of New York v. People, 17 Wend. (N. Y.) 571, 596; Dwinel v. Barnard, 28 Me. 554, 569, 48 Am. Dec. 507; Farnham on Waters, vol. 1, § 49.

That the land in controversy under the Mexican civil law became the property of adjacent landowners, upon its abandonment by the river, in view of the authorities, we believe, does not admit of any doubt. It is urged, however, that the adoption of the common law in 1840 made a different rule of decision applicable with respect to the rights here involved.

The act of 1840 adopted the common law as the rule of decision, and repealed the laws of Mexico, "except such laws as relate exclusively to grants and the colonization of lands in the State of Coahuila and Texas," etc. Gammel's Laws, vol. 2, pp. 177, 178.

The insistence is made that under this act the Mexican civil law, which vested the title to abandoned river beds in the adjacent landowners, was repealed, and that since the river bed in the instant case was not abandoned until 1914, the rule of the common law should apply, and not that of the Mexican civil law. With this view we cannot agree.

The grants involved in suit are all colonization grants, being within and a part of Austin's colony. Each grant recites that the grantee was put "in possession of said lands with all their uses, customs, privileges, and appurtenances, for him, his heirs and successors," and as to all, except the Allcorn league, there was included in the above clause "entrances and outlets." These rights thus embraced within the grants were sedulously preserved to the grantees by the Constitution and laws of the Republic of Texas. The laws under which the grants were made, including the...