Smith v. Power
| Decision Date | 01 January 1855 |
| Citation | 14 Tex. 146 |
| Parties | JOSEPH F. SMITH AND OTHERS v. JAMES POWER. |
| Court | Texas Supreme Court |
That the assent of the Federal Government, as a general rule, is essential to the validity of a title within the border and littoral leagues is not an open question in this court. (Note 21.)
The only recognized exception to this rule is where a title in the reserved leagues has been issued under the specific authority of a decree of the Congress of the State of Coahuila and Texas. This exception to the general rule has reference to titles issued under the decree of the 26th March, 1834. (Note 22.)
The colonization contract of Power and Hewetson embracing littoral leagues gave the assent of the Federal Government to the issuance of such titles only as were provided for therein, and could not be construed into assent to the location of any other grants within the limits of that colony; nor did such colonizationcontract have the effect to dispense with the assent of the Federal Government to the location within its limits of grants not contemplated by it; and the only titles contemplated by that contract were the titles of colonists to their headrights, and of the empresarios to their premium leagues.
Error from Jackson.
J. F. Smith, for plaintiffs in error
R. Hughes, for defendant in error.
The land sued for lies within the limits of the augmentation to the original colonial contract of Power & Hewetson, and among other objections to the title of plaintiff it is urged that one of the essential requisites of such title was wanting, viz, the approbation of the supreme executive power of the Federal Government; and that consequently the title was void, and would not authorize a recovery for the plaintiff.
This is the only objection we shall examine, for if this be valid the judgment must be reversed, whatever be the character, as legal propositions, of the other objections which have been urged.
The title of the plaintiff purports to be for four leagues and three-quarters of land, the balance of twenty-two leagues purchased by Power & Hewetson from the Governor of the State of Coahuila and Texas. The consent of the Federal Executive to the location of this claim within the littoral leagues does not appear on the face of the title, nor was it proven by evidence aliunde.
That such assent, as a general rule, is essential to the validity of a title within the border and littoral leagues is not an open question in this court. It was so decided in the cases of Goode v. McQueen's Heirs, 3 Tex. R., 241; Edwards v. Davis, Id., 321;Republic v. Thorn, Id., 499; Edwards v. Davis, 10 Id., 316. The only recognized exception to this rule is where a title in the reserved leagues has been issued under the specific authority of a decree of the Congress of the State of Coahuila and Texas. Such law having become a rule of property, and having been acquiesced in by the Congress of Mexico, no act of that body having declared it null and void, titles emanating under it must be respected by subsequent Governments and authorities, and cannot be held null and void for the want of assent by the Federal Executive. (Goode v. McQueen, 3 Tex. R., 258.) This exception from the general rule has reference to titles issued under the decree of the 26th March, 1834. But the title of the plaintiff can claim no benefit from this exception, as it was not issued and could not be issued under said decree, nor was it granted under any other having like provisions, or any provision which directly authorized titles to issue to lands within the border or coast leagues of the State. But it is contended, in a very ingenious argument by counsel for appellee, that, the consent of the National Executive having been given to the colonial contract of Power v. Hewetson within the littoral leagues, all restriction on grants of land within the designated boundary was entirely removed; that all the operations provided for by the law of colonization might be carried on within such boundary, and all persons for whom provision has been made in said law may receive within said colony the benefits to which they are by such law entitled; that inasmuch as by the colonization law the Mexican military and Mexican citizens were entitled to a preference in the distribution of...
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State v. Balli, 8187; Motion No. 16405.
...cases referred to the different rule established in the case of grants issued under the law of 1834. That law, said the court in Smith v. Power, 14 Tex. 146, had created a different rule of property which had been acquiesced in by the Congress of Mexico so that titles issued under that law ......
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Harris v. O'Connor
...established that title did not pass to any of the land in the area purported to be granted to Power and Hewetson jointly. Smith v. Power, 14 Tex. 146; Smith v. Power, 23 Tex. 29, 30. The basis of the holding was not any defect in description, but that the areas were within ten littoral leag......
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Atchley v. Superior Oil Co.
...in Smith v. Power, 2 Tex. 57 (1847), which included: Commissioner of General Land Office v. Smith, 5 Tex. 471 (1849); Smith v. Power, 14 Tex. 146 (1855); Smith v. Power, 23 Tex. 30 (1859); Wood v. Welder, 42 Tex. 396 (1875); and Plummer v. Power, 29 Tex. 6 The location of the boundary line ......
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State v. Balli
...the reserved leagues has been issued under the specific authority of a decree of the Congress of the State of Coahuila and Texas." Smith v. Power, 14 Tex. 146. This exception applies to titles granted by a special commissioner of the State of Coahuila and Texas under article 32 of the law o......