Rosborough v. Picton

• Decision Date: 16 January 1896
• Docket Number: (No. 986.)
• Citation: 34 S.W. 791
• Parties: ROSBOROUGH et al. v. PICTON et al.
• Court: Texas Court of Appeals

34 S.W. 791

ROSBOROUGH et al. v. PICTON et al.

(No. 986.)

Court of Civil Appeals of Texas.

January 16, 1896.

Appeal from district court, Victoria county; S. F. Grimes, Judge.

Suit by Joseph B. Rosborough and others against Fannie E. Picton and others to restrain a sale of lands by a trustee. From a judgment in favor of defendants, plaintiffs appeal. Reversed.

Samuel B. Dabney, for appellants. Proctors, for appellees.

WILLIAMS, J.

Appellants brought this suit to obtain an injunction to restrain a sale of their lands by F. C. Proctor, as trustee, under a deed of trust which they had executed to appellees Fannie E. Picton and her husband, D. M. Picton, to secure notes given by appellants for the purchase money of land bought by them from Mrs. Picton. Temporary injunction was granted in vacation, but in term time, after plaintiffs had filed an amended original petition, exceptions to it were sustained, the injunction was dissolved, and the suit dismissed, and the judgment thus rendered is brought in review by this appeal. The petition is necessarily lengthy, and only a general statement of the points involved in the rulings below will be given.

Appellants bought from Mrs. Picton an undivided one-fourth of 28 tracts of land, among which were a league granted to Peter Hynes, and seven-eighths undivided interest in a fourth of a league granted to John Hynes. These grants were extended to the original grantees in 1834 by the commissioner of Power & Hewitson's colony, the lands granted being situated within the bounds of the second contract of those colonists with the then existing government. The petition alleges that the sale of lands made to appellants by the appellees was by the acre, at four dollars per acre, and that these two tracts were represented by appellees, and believed by appellants to contain 4,428 and 1,107 acres, respectively, but that as a matter of fact, which was unknown to appellants when they made their purchase these grants included in the boundaries a portion of Hynes' Bay, a navigable arm of the Gulf of Mexico, and an area, more than 1,200 acres thereof, was covered by the waters of the bay, to which area, it is asserted, the title never passed out of the government. An abatement of the purchase money, commensurate with this shortage in the land purchased, was claimed, the balance remaining unpaid being tendered into court, and a restraint of the sale of the property by which the purchase-money notes were secured was sought until a trial of the issues could be had.

We think that there is no doubt that the proposition that the title to the land covered by the navigable waters of the bay did not pass by the grants is well founded. According to both the common and civil law, an ordinary grant of land along the seacoast, made by the ministerial officer of the government, did not pass the title to land under water or beyond the coast line. This line was fixed by the common law at the point reached by ordinary high tide, and by the civil law at the mark of the highest tide. The exterior boundary line of the grant to Power & Hewitson was the seacoast (Sayles' Early Laws, 108; Hamilton v. Menifee, 11 Tex. 718); and no authority was given them over the waters of the sea or of the bays and inlets, or of the soil under them. These are, by well-settled principles, reserved for common use. Hence the grants by the commissioner of that colony passed title only to land which was not under the waters of the sea. City of Galveston v. Menard, 23 Tex. 349; Bathing Co. v. Heidenheimer, 63 Tex. 562; Arnold v. Mundy, 6 N. J. Law, 1; Tatum v. Sawyer, 2 Hawks, 226; Martin v. Waddell, 16 Pet. 369. The decisions in this state sustaining grants of land by these commissioners outside of the colonial boundaries, where they were fairly made upon a mistake as to the location of the boundary line, have no application. The only question involved in those cases was as to the power to grant land, and it was sought to avoid the grants because the authorities had mistaken the territorial limits of their jurisdiction, and had honestly granted lands which lay a short distance outside of the boundary. Here the question is as to the power to grant that which, by the policy of all nations governed by the principles of the civil or common law, is retained for the public use, and which passes by a private grant only when so expressly provided by the sovereign authority. For the same reason, no subsequent recognition or confirmation of a grant made by a ministerial officer attempting to pass the soil under the sea would be presumed; and hence it was unnecessary for the plaintiff to allege that there had been no such confirmation. In the first place, the power was not given to the commissioner of the county to grant soil under navigable waters; and, in the second place, his grant would not be construed as attempting to do so unless it expressly or by unavoidable construction so provided; and the same reason which would thus limit the effect of such grants would forbid any assumption that there had been any act of the government which could have the effect of passing away its title to soil under the water.

It is claimed that the petition does not sufficiently show that the quantity of land for which an abatement is claimed is actually covered by the water. But the allegation is that plaintiffs have caused a survey of the water area to be made, and states, as its result and upon information given to plaintiffs by the surveyor, that the...