State v. Balli

• Decision Date: 23 June 1943
• Docket Number: No. 11220.,11220.
• Citation: 173 S.W.2d 522
• Parties: STATE v. BALLI et al.
• Court: Texas Court of Appeals

173 S.W.2d 522

STATE v. BALLI et al.

No. 11220.

Court of Civil Appeals of Texas. San Antonio.

June 23, 1943.

Rehearing Denied July 21, 1943.

COPYRIGHT MATERIAL OMITTED

Appeal from One Hundred Seventeenth District Court, Nueces County; Cullen W. Briggs, Judge.

Suit by the State of Texas against Alberto Balli and others involving the title to a sandbar or island called "Padre Island" lying within the counties of Nueces, Kleberg, Kenedy, Willacy and Cameron. From an adverse judgment, the State of Texas appeals.

Affirmed.

Gerald C. Mann, Atty. Gen., Peter Maniscalco and Fagan Dickson, Asst. Attys. Gen., and Robert E. Kepke, former Asst. Atty. Gen., of Tulsa, Okl., for the State.

Sydney Smith, of El Paso, and W. C. Franklin, of Tulsa, Okl., for appellant Hector Crandall.

Potter & Bezoni, of Tyler, for appellant Kernel Hughes and others.

Davenport & Ransome, of Brownsville, Kleberg, Eckhardt & Lowe, of Corpus Christi, Lawler, Wood & Childress, of Houston, J. W. Timmins, of Dallas, J. T. Canales and Seabury, Taylor & Wagner, all of Brownsville, B. D. Tarlton, of Corpus Christi, Paul A. McDermott, of Fort Worth, and Howell Ward, of Corpus Christi, for appellee.

NORVELL, Justice.

This action involves the validity of the Balli claim or title to "Padre Island," a well-known sandbar or island, about 110 miles in length, lying within the present counties of Nueces, Kleberg, Kenedy, Willacy and Cameron. The island is bounded on the north by Corpus Christi Pass; on the west by Laguna Madre; on the south by the Pass of Brazos Santiago, and on the east by the Gulf of Mexico.

Trial was to the court without a jury. Judgment was rendered against the State and in favor of appellees who hold under the Padre, Nicolas Balli, and his nephew, Juan Jose Balli. No findings of fact or conclusions of law appear in the record, consequently all fact issues having support in the evidence are presumed to have been found in support of the judgment.

The State's trial petition describes the island by field notes occupying eighteen pages of the transcript, which were prepared by J. S. Boyles, a licensed State Land Surveyor. According to Boyles' calculation, the island at the time of his survey, which was completed on September 26, 1941, contained 135,213.03 acres, or about thirty and one-half leagues.

The State as sovereign, by the exhibit of its petition, made out a prima facie case for the recovery of the lands described therein. State v. Delesdenier, 7 Tex. 76; Day Land & Cattle Company v. State, 68 Tex. 526, 4 S.W. 865. The burden therefore devolved upon appellees to establish that either the State of Texas, or some prior sovereign, had relinquished, ceded or granted the lands here involved to appellees' predecessors in title.

The principal question presented relates to the validity of an alleged grant from the State of Tamaulipas to the Mexican citizens, Nicolas and Juan Jose Balli, in the year 1829. Appellees exhibited a chain of title from these original grantees. It seems that Nicolas Balli was in possession of the island prior to 1829, under a claim of right emanating from the Spanish authority in America at some date prior to the Mexican Revolution. Since 1829, possession of the island has been held either by the Ballis or those holding under them. During the years 1848 to 1852, both inclusive, it appears that the island was owned by citizens of Mexico, the principal owners being Jose Maria Tovar and Nicolas Grisante; that is, the parties mentioned or referred to were the owners assuming that the grant to the Ballis was valid. It also appears that taxes assessed against the lands involved by the State and its political subdivisions have been paid by appellees or some of them and their predecessors in title.

Appellees contend that Nicolas Balli and Juan Jose Balli obtained a title to Padre Island from the Mexican State of Tamaulipas which was good in equity and consequently protected by the Treaty of Guadalupe Hidalgo, Feb. 2, 1848, 9 Stat. 922 (Kenedy Pasture Company v. State, 111 Tex. 200, 230, 231 S.W. 683, 693), as well as by the rule of law of nations that the dominion acquired by another sovereign over an inhabited country does not divest the vested rights of individuals to property. Delassus v. United States, 9 Pet. 117, 133, 9 L.Ed. 71, 77; Maxey v. O'Connor, 23 Tex. 234, 243.

Appellees as an alternative proposition also assert title under and by virtue of the Relinquishment Act of February 10, 1852, contending that all defects, if any there be in the Mexican title, were cured, the title validated, and all rights of the State in and to the island relinquished by this action of the Texas Legislature.

If the existence of a valid grant be established, there remain to be determined certain questions as to the extent of the grant. Is it limited to 11.15 leagues or does it extend to the superficial area of the island? Do the accretions to the island belong to the appellees, as owner of the upland, or do they belong to the State of Texas? Where is the line of demarcation between the sea and the island?

In our opinion the case may best be discussed from the standpoint of appellees' contentions and the questions above set forth. This is not in accordance with the arrangement of points (ten in number) contained in appellant's brief, but is deemed a logical approach toward a disposition of said points, all of which will be disposed of in this opinion.

Appellees' primary contention may be designated as "Title under the Treaty of Guadalupe Hidalgo." Appellant's points relating thereto are:

"The Court's error in failing to hold that no grant from Spain or Mexico was ever issued to Padre Island (III).

"The Court's error in failing to hold that a grant of Padre Island was not in fact made and could not legally have been made under the Mexican laws then in force as applied to the undisputed facts here presented (IV).

"The Court's error in holding that the admittedly incomplete proceedings relied upon by (appellees) divested Mexico of either legal or equitable title (V).

"The Court's error in holding that the Treaty of Guadalupe Hidalgo confirmed (appellees') or their predecessors' claims to Padre Island (VI).

"The Court's error in failing to hold that the facts proved refuted any possibility of the presumption of a grant (VII)."

Appellees' alternative contention we designate as "Title Under the Act of February 10, 1852." Appellant's points relating thereto are:

"The Court's error in failing to hold that the Act of February 10, 1852, expressly refused to release or confirm the title to the island here sued for (II)."

"The Court's error in holding that (appellees') claims are not barred by their failure to make a survey and to file field notes thereof in the General Land Office by January 1, 1880, as required by Sec. 8 of Article XIV of the Texas Constitution, Vernon's Ann.St. (I)."

As to "the extent of the grant," appellant asserts the following points:

"The Court's error in holding that (appellees) in any event could recover 30½ leagues under a survey confined to 11.15 leagues (VIII).

"The Court's error in holding that (appellees) are entitled to recover any land formed since 1829 by accretion (X).

"The Court's error in holding that (appellees) in any event are entitled to recover the land situated between mean high tide line and highest winter tide line (IX)."

The term "grant" as used in the briefs is generally employed in its broad sense or meaning, to signify a cession of real property by the sovereign to an individual by whatever procedure this is accomplished, rather than in its strict sense as meaning a final certificate of title issued by the executive of the sovereign as in Kenedy Pasture Company v. State, 111 Tex. 200, 231 S.W. 683. The usage of the briefs is followed in this opinion, and the instrument evidencing the final action of an executive will be called a "final certificate."

The political and historical background of the section of the State which embraces Padre Island is set forth in a number of decisions by our Supreme Court, notably Kenedy Pasture Company v. State, supra, and State v. Sais, 47 Tex. 307. We quote from the opinion of Chief Justice Roberts in the case last mentioned:

"That portion of Texas situated between the Rio Grande and Nueces river, south of a line drawn from the northern boundary of Webb county to the mouth of Moros creek, on the Nueces river, was originally a part of the State of Tamaulipas, in Mexico, whose capital was Victoria, some distance west of the Rio Grande. That section of country was but sparsely settled, and was used principally for stock ranches, that had long been subject to frequent depredations from savage Indians. On the 19th of December, 1836, an act of the Congress of Texas was passed, defining the boundaries of Texas, in which that territory was included. Notwithstanding that, however, the State of Texas exercised no permanent jurisdiction over it, except along and near the Nueces river, including Corpus Christi, on the gulf; and the State of Tamaulipas exercised jurisdiction on and near the Rio Grande, on the eastern side of it, until after the annexation of Texas to the United States, (on the 29th of December, 1845) shortly after which, armed occupation of the disputed territory was taken by the United States, on behalf of Texas, since which time Texas has exercised jurisdiction over it. Paschal's Dig., art. 438; Calkin v. Cocke, 14 How. 227 ; Lee v. King, 21 Tex. [577], 582; Trevino v. Fernandez, 13 Tex. [630], 663; Martin v. Weyman, 26 Tex. [460], 465.

"By the `Articles of Annexation,' consent was given by the United States, `that the territory properly included within and rightly belonging to the Republic of Texas may be erected into a new State, to be called the State of Texas,' upon certain conditions and guarantees, one of which was that the State to be formed should be `subject to the adjustment by the Government of all questions of...