Rudder v. Ponder

Decision Date18 July 1956
Citation156 Tex. 185,293 S.W.2d 736
PartiesJ. Earl RUDDER et al., Petitioners, v. Russell S. PONDER et al., Respondents. No. a-5192.
CourtTexas Supreme Court

John Ben Shepperd, Atty. Gen. of Texas, John Milton Richardson, Asst. Atty. Gen., for petitioners.

Russell S. Ponder, San Antonio, J. W. Timmins, Martin A. Row, Edwin M. Cage, Dallas, for Sun Oil Co.

Kelso, Locke & King, San Antonio, for Taft Properties, Inc Wood & Pratt, Corpus Christi, Weldon Cabiness, Rockport, for Glenn & J. D. Derrough.

Remy, Burns, Schiller & Lagerquist, San Antonio, for Henry B. Dielmann.

GRIFFIN, Justice.

This is a suit to establish a vacancy along the Gulf Coast. The land in suit lies on Copano Bay in Arransas County, Texas. The respondents claim the proper boundary of the privately owned land on shore is the common law boundary along the contour line of 0.4 feet above sea level. The State, acting through Land Commissioner, J. Earl Rudder, et al., claims the true boundary line should be in accordance with Spanish and Mexican law. This point is 1.1 feet above sea level. The difference between tween these two elevations accounts for the vacancy. No party denies that the land covered by the sea under one or the other of the above contentions belongs to the State, and those who claim title from the State. The contest is the proper and legal location of the seaward boundary of the private property.

The case was tried before a court without a jury, and judgment rendered establishing a vacancy as to land claimed by the respondent, Ponder, but denying other claims of vacancy. The judgment of the trial court was that the common law rule as to the location of the shore line was the correct location. Only the Land Commissioner and the Attorney General appealed the trial court's judgment. The Court of Civil Appeals, in an exhaustive and wellreasoned opinion, affirmed, 275 S.W.2d 509, 510. In their application for writ of error petitioners say: 'The question before the court in this cause concerns the proper location of the coastal boundaries of the William Steele Survey No. 2 in Aransas County, Texas. One related question is whether the common law or the civil law should be applied in determining these boundaries.'

The pertinent facts are well stated by the Court of Civil Appeals as follows:

' After Texas became a Republic, but before it generally adopted the common law, Henry Smith, a transferee of the William Steele Land Warrant No. 840, dated December 8, 1837, caused John Talley, the Deputy Surveyor for Refugio County, to survey what is described in the field notes as '1280 acres of land' which fronted on the bay. Henry Smith, also a transferee of the Van Benthuysen Land Warrant No. 1188, dated December 20, 1837, caused the same surveyor to survey '640 acres of land' adjoining the other tract. The surveys were made and the field notes prepared with plats attached, and the surveyor, in accord with the law then in effect, made his affidavits that the plat, field notes and the survey were made since the first day of August, 1838. These affidavits were dated and signed by the deputy surveyor on September 23, 1839, and on the same date were certified as correct by the refugio County Surveyor. The trial court found as a fact, based upon presumptions, that the field notes on the two surveys were not filed in the General Land Office until after January 20, 1840, when the Republic generally adopted the common law. The patents were issued by Mirabeau B. Lamar during April of 1841.'

From the above statement of facts it will be seen that the land certificates upon which the patents were later issued were dated in December, 1837. This was while Texas was a republic and prior to the Act of January 20, 1840, when the Republic adopted the common law as the rule of decision. However, it will be noticed that the patents were not issued until April, 1841, this being after the adoption of the common law. The State claims that as soon as the certificate was located and the field notes prepared and certified as correct by the surveyor of Refugio County, the grantee in the certificates became the holder of a vested right of which he could not be deprived later by the adoption of the common law; therefore, the civil law applies. The respondents contend that up to the time of the issuance of the patent, the grantee had only an incomplete, inchoate and equitable right in so far as the Republic was concerned; that the patent having issued after the adoption of the common law that law should govern.

We hold with the contention of respondents and thus affirm the judgment of the Court of Civil Appeals. The Constitution of the Republic of Texas was adopted in March of 1836 and ratified in September of that same year. Article IV, § 13, provided in part as follows: 'The Congress shall, as early as practicable, introduce, by statute, the common law of England, with such modifications as our circumstances, in their judgment, may require; and in all criminal cases the common law shall be the rule of decision.' 1 Gammel 1074. With regard to land titles it provided in Article VI, § 9, that 'all grants and commissions shall be in the name, and by the authority of the Republic of Texas, shall be sealed with the great seal, and signed by the president.' 1 Gammel 1076. In addition the Constitution provided, 'so soon as convenience will permit, there shall be a penal code formed on principles of reformation, and not of vindictive justice; and the civil and criminal laws shall be revised, digested, and arranged under different heads; and all laws relating to land-titles shall be translated, revised and promulgated.' (Emphasis added.) Constitution of the Republic, General Provisions, § 7, 1 Gammel 1079. Among other things, Section 10 provided '* * * no survey or title which may hereafter be made shall be valid unless such survey or title shall be authorized by this convention, or some future congress of the republic.' 1 Gammel 1079-1081. This Section 10 also provided for the establishment of a general land office 'where all landtitles of the republic shall be registered,' and for the sectionizing of the whole territory of the Republic. Under the Spanish and Mexican law 'sections' were unknown as a measure of land, but land was measured in leagues or sitios, labors and haciendos. A 'section' was a common law term. To carry into effect the above constitutional provision to establish a general land office, the Congress of the Republic, on December 22, 1836, established a General Land Office and prescribed the number of 'acres' of land to be granted to persons settling in Texas after January 1, 1837. On June 12, 1837, the Land Office Act was supplemented, and on the same day another act was passed instructing the president of the Reupblic to cause the 'vacant lands of the republic to be surveyed and sectionized in tracts of 640 and 320 acres each.' The Land Office had been closed in the latter part of 1835 due to the unsettled conditions in Texas because of the struggle for independence from Mexico. The Land Office was not opened again until February 1, 1838, and then by virtue of Section 39 of the Land Office Act of December 14, 1837.

On December 14, 1837, before the Land Office of the Republic had actually opened, Congress passed an act establishing the land office and '* * * to reduce into one act, and to amend the several acts relating to the establishment of a General Land Office.' 1 Gammel 1404-18. This 1837 Act provided for a county surveyor to locate land certificates upon the vacant public lands in each county; a board of land commissioners to have general charge and supervision of the issuance and location of lands under valid certificates, and to transmit the necessary documents when the preliminary steps had been taken to the Commissioner of the General Land Office. The land commissioner, upon receipt of such papers in proper form, 'shall forthwith make out in due form a patent for said land, and record the same in a book to be kept for that purpose,' and send the original patent to the president of the Board of Land Commissioners, who, after duly making a record of the same, should deliver the original patent to the party entitled to receive the patent. Section 36. Section 7 of this Act provided that all patents should be issued in the name of the Republic of Texas and under the seal of the Land Office, signed by the president of the Republic and countersigned by the Commissioner, or chief clerk. This act also provided that the county surveyor should receive certain fees for his work in making the survey, 'three dollars for each English linear mile actually run.' Section 37. This was the first time the English or common law mile had been provided as a measure of payment. All previous laws had provided payment for the Castillian, or metric linear mile-the Spanish and Mexican measurement. At all times since this act of 1837, all land matters have been set out in our statutes in terms of the common law, rather than the Spanish or Mexican law. Thus the Congress of the Republic of Texas in 1837, 1840 and 1841, in regard to land titles, carried out the command of Article IV, § 13 of the Constitution of 1836 to introduce the common law of England by statute as early as practicable.

The case of Warren v. Shuman, 5 Tex. 441, gives a concise history of the land legislation of the early days of the Republic. It is there stated:

'The Act adopted Jan. 29, 1840, (Acts of 1840, p. 139,) authorized the appointment of Commissioners to ascertain and report what certificates had been issued to legal claimants; and the Commissioner of the General Land Office was prohibited from issuing a patent upon any survey 'which shall not have been, or may thereafter be made by virtue of a certificate returned as genuine and legal, by the Commissioners appointed under this Act;' and a patent issued contrary to the provisions of the Act,...

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