Mayor v. Michael B. Menard. the Mayor

CourtSupreme Court of Texas
Citation23 Tex. 349
PartiesTHE MAYOR, ALDERMEN AND INHABITANTS OF THE CITY OF GALVESTON v. MICHAEL B. MENARD. THE MAYOR, ALDERMEN AND INHABITANTS OF THE CITY OF GALVESTON v. ABRAM P. LUFFKIN.
Decision Date01 January 1859
OPINION TEXT STARTS HERE

Whether or not, the claim of the republic of Texas, defining her boundaries, as extending along the coast, three leagues from land, was admitted by other nations to a greater extent than one marine league from the shore, would have depended very much upon her power to have enforced it; but, as between her own citizens, in respect to the right of the soil, the boundary prescribed is conclusive.

By the civil law, the shores of the sea, bays, and rivers belong to the nation that possess the country, of which they are a part. But, while they are of the class of public things, common to all, to which no exclusive right will ordinarily be granted, yet, it often happens, that the public use may be promoted, by allowing portions of them to become private property.

By the common law, the right to such property is vested in the king, as trustee for the public; and since the time of magna charta, he cannot grant it, though parliament may.

The legislatures of the several states may grant it, if not appropriated by prescription or otherwise; provided it does not infringe upon the power of the United States, “to regulate commerce with foreign nations, and among the several states.”

In view, either of the civil or common law, the republic of Texas, as a result of its absolute sovereignty over the territory included in its limits, had the power, through its legislative department, in 1836, to grant that part of Galveston bay, south of the channel, called the “flats,” usually covered with salt water, so as to vest an exclusive right to the soil in the grantee.

Such a grant does not infringe the right of the United States to regulate commerce.

The devisible character of this species of property being such, that it may become partly public and partly private; the different modes of its use, and the diversified means of its acquisition, in England and the Atlantic states, from that in Texas, have exceedingly complicated the subject, and renders much of their legal learning inapplicable here.

The shore of a sea, or bay, as defined by the civil law, is the line of the highest tide in winter.

By the common law, an ordinary grant of land upon a bay, is limited to the line of ordinary high tide.

The terms of a grant may be aided and extended beyond their usual import, by long possession alone, consistent with such enlarged construction, though not specifically or plainly expressed.

The act of the congress of the republic of Texas, of December 9, 1836, relinquishing to M. B. Menard, “one league and one labor of land, lying and situate on, and including the east end of Galveston island,” if viewed as an ordinary grant, would not include the shore and flats, lying south of the channel of the bay.

But in view of the object of the said legislative grant, its locality, and the acts of the contracting parties, it was clearly intended to include “the flats” therein, so as to build up a city upon it, with streets and lots, running to and bordering on the channel.

That more certainty of intention, to grant land covered with tide water, than land not so covered, should be required, is not owing to any difference in the right of the state, but to the character of the property, in its relation to commerce.

It is fair to presume, that the president was consulted, and understood the object of such grant, and properly designated the northern boundary, in executing the title.

The call in the title to run from the beginning corner, as therein described, “due north 150 varas to a stake; thence eastwardly with the channel of the harbor in the bay of Galveston, and with the general course of the island, at the distance of at least 150 varas from the shore, to a stake 150 varas from the extreme eastern point of said island,” should be construed (considered with reference to the object of the grant) that the line should run from the beginning point, eastwardly, keeping at least 150 varas from the shore, to the channel, and not in a direct line to the nearest point of it.

The action of the city company, in giving notice, at the time of the sale of lots, that the survey of the city was not complete, but that other lots would be laid off in front of those represented in the imperfect plan exhibited, etc., was not the reservation of a right to extend the city, but in the nature of an undertaking, that lots would be laid off, or considered as laid off, in front, so as to exhaust the land granted, to the channel.

Such notice amounted to something more than a reservation for the benefit of the company. But if a reservation of the right of so laying it off, it does not follow, that they reserved the right of doing any thing else, than laying it off in blocks and streets, according to the general plan of the city.

The act of the 5th February, 1840, incorporating the city, shows that congress anticipated that the city might establish wharves and regulate them, and that this would not be inconsistent with the recognized fact, that the front line of the bay, where they must be built, was the boundary of Menard's grant; evidently upon the construction that the streets should run to the channel.

The same necessary implication, founded upon the intention of the parties, in accomplishing the object of the grant, which, by construction, extends the grant, under which the city company hold, to the channel, equally requires the extention of the streets to the same line.

The city has the right to open the streets to the channel, unless it has lost it by prescription: [or unless, as suggested, though not decided, this right has been qualified by the act of February 16, 1852.--REPS.]

Menard, and his vendees, being the owners of the soil in the “flats,” in front of the lots out to the channel, may devote it to wharves or the like, without being subject to the control of the public; under the qualification incident to all property, that it is not so used as to be a common nuisance.

The city has the same right to build and control wharves in front of the streets.

The rights growing out of the dedication of a street, vest in the town and its citizens, and are to be protected by them for the public, against the operation of the statute of limitations, or the presumptions arising from adverse claim and possession, as they apply in cases of private right or public easements.

Possession for five years, with the requisites prescribed by the statute, of a public street, will confer upon the possessor full title.

As a consequence of the character of property in a street, or other common property, nothing short of a visible appropriation of it, to the exclusion of the public, except at the discretion of the owner, can be held to be adverse.

ERROR from Galveston. Tried below before the Hon. Nelson H. Munger. A jury was waived, and the causes submitted to the court. The other facts are sufficiently apparent from the opinion.

F. H. Merriman, M. M. Potter, and L. A. Thompson, for the plaintiffs in error. The right of the plaintiff to the locus in quo, is the main question in this case; and this right, so far as the present controversy is concerned, may be successfully maintained, upon either of the two following views: 1. On the hypothesis of a valid grant by the sovereignty of Texas, to Menard and his associates, through and under whom the defendant claims title, of the shore of the island of Galveston, on the north or bay side, and of a dedication of the locus in quo, to the inhabitants of the city, or to the public use, by the projectors and founders of the town: and, 2. If the shore of the island of Galveston, on the bay of Galveston, was not conveyed, or relinquished, by the republic of Texas, by the act of December 9, 1836; and did not pass by the patent of the president of the republic, of the 25th January, 1838, to the said Menard, or was not otherwise duly and legally granted to him; but that the same remained the property of the republic, and state of Texas, until December 8, 1851, that it was by an act of the legislature, of the last mentioned date, granted to the plaintiff for the use of the inhabitants of the city, etc.

1st. Of the dedication. There are two modes by which a dedication of land for streets, avenues, squares, alleys, commons, and other public places in a town, for the common or public use, may be established: one, by the length of time it has been in actual use as such; the other, by some act of the proprietor, or owner, of the fee, so positive and unequivocal in its nature, as to require no time to warrant a presumption. 2 Hill. on Real Prop. 77, § 22; Wyman v. The Mayor, etc. of New York, 11 Wend. 498, 500, 502; and other authorities hereinafter cited.

No particular form, or ceremony, is necessarry to the dedication of land to the public use; nor is it essential to the validity of a dedication, that the land should be in the actual use, or occupation, of the public; nor that the property claimed to be dedicated had ever been so used; or was in a condition so to be used. Dummer v. Jersey City, 1 Spencer, 106-109;Barclay v. Howell, 6 Pet. 505;Wyman v. The Mayor, 11 Wend. 498;Rowan v. Portland, 8 B. Mon. 249, 250;Cincinnati v. White, 6 Pet. 440.

Neither is a deed, or other writing, necessary to constitute a valid dedication of an easement. Cincinnati v. White, 6 Pet. 437.

Nor, like other grants, is there a necessity that there should be a grantee, in esse, capable of taking the subject-matter thereof. Id.; Dummer v. Jersey City, 1 Spencer, 108;Pearsall v. Post, 20 Wend. 119.

But when the town is incorporated, the corporation represents the public, or inhabitants of the town; and the rights of the public in such common property, are vested in the corporation. Watertown v. Cowen, 4 Paige, 514;Dummer v. Jersey City, 1 Spencer, 108;Cincinnati v....

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