State v. Balli

• Decision Date: 20 December 1944
• Docket Number: No. 8187; Motion No. 16405.,8187; Motion No. 16405.
• Citation: 190 S.W.2d 71
• Parties: STATE et al. v. BALLI et al.
• Court: Texas Supreme Court

190 S.W.2d 71

STATE et al. v. BALLI et al.

No. 8187; Motion No. 16405.

Supreme Court of Texas.

December 20, 1944.

Rehearing Denied November 7, 1945.

Error from Court of Civil Appeals, Fourth Supreme Judicial District.

Suit by the State of Texas and others against Alberto Balli and others for the title and possession of Padre Island, situated within the Counties of Nueces, Kleberg, Kenedy, Willacy and Cameron. Judgment for defendants was affirmed by the Court of Civil Appeals, 173 S.W.2d 522, and plaintiffs bring error.

Affirmed.

Gerald C. Mann, former Atty. Gen., Grover Sellers, Atty. Gen., Geo. W. Barcus,

Asst. Atty. Gen., Peter Maniscalco and Robert E. Kepke, former Asst. Attys. Gen., and Fagan Dickson, Asst. Atty. Gen., for the State.

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

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

Potter & Bezoni and Clower & Wilson, all of Tyler, for Hughes et al.

Saner, Saner & Jack, and Alfred Sallinger, all of Dallas, amici curiae.

SLATTON, Commissioner.

This is a suit for the title and possession of Padre Island instituted by the State in the district court of Nueces County. Padre Island is situated within the present counties of Nueces, Kleberg, Kenedy, Willacy and Cameron, and is about 110 miles in length. The island is bounded by the Gulf of Mexico on the east, Laguna Madre on the west, Corpus Christi Pass on the north, and the Brazos Santiago Pass on the south. The island is described in the State's third amended original petition, on which the case was tried, as containing 135,213 acres of land. The adverse claimants to the State base their claim through mesne conveyances from the Padre Nicolas Balli. The Balli claim grows out of the proceedings with the State of Tamaulipas had in the years 1827-1829, inclusive. In clause 16 of a revoked will of the Padre Nicolas Balli (Spanish wills of 1811 were archived in the office of the notary public before whom acknowledged and became public records even though they might never take effect as wills) extant in the Matamoros archives and dated November 4, 1811, it is recited: "I claim as my property the grazing pasture of the Island, while I am not in possession, this is due to the unsettled times, but in fact I had it surveyed and adjudicated and I maintain in there 1000 head of cattle. I command my heirs that as soon as the times quiet down they shall endeavor to perfect it until the testimonio of the ownership (or title) is obtained. I so state that it may be noted."

The effective date of Mexican independence was September 27, 1821. The former Spanish colony of Nuevo Santander became the State of Tamaulipas after the organization of the new Mexican government in 1824.

The first general land law of the new State of Tamaulipas, the General Colonization Law of December 15, 1826 (Sayles' Early Laws, Article 89), provided, with regard to applications for lands denounced under the former government for which the titles were incomplete, as follows: "Sec. 26. Designators of lands, which, in time of the ancient government, did not perfect their adjudication shall present themselves to the respective authority to continue its course according to the state thereof, effecting the same within the term of forty days from the date of the publication of this law; and on the contrary, said lands shall be considered open to designation as vacant."

On December 11, 1827, the Padre Nicolas Balli, acting through Diego de Leon, his attorney in fact, presented to Lucas Fernandez, governor of Tamaulipas, his petition for a completed testimonio of the earlier Spanish proceedings, or, in its absence, for a new title from the State of Tamaulipas. The land described in the petition is as follows: "For the land of the Island of Santiago that terminates at the Corpus Christi Bar and consists of 19½ sitios." (or square leagues)

We quote briefly from the expediente which was archived in Matamoros and was offered in evidence by the adverse claimants to the State:

                "State of Tamaulipas
                "2nd Judge of Matamoros Year of 1828
                

"Expediente of inspection and demarcation of the land of the Island of the Brazo de Santiago, situated in this jurisdiction, Denounced by the Governor of this state to the Citizen Bachelor Nicolas Balli, as ancient possessor of this land; and to his Nephew Juan Balli."

Denuncio

The proceedings, as archived, begin with a petition to Lucas Fernandez, Governor of Tamaulipas, of date December 11, 1827, by Diego de Leon, as attorney in fact for the Padre Nicolas Balli. Its pertinent portions read: "That having appeared before the Court of Reynosa as Attorney-in-fact for my Grantor to solicit a new copy of the judicial acts and proceedings (testimonio) because the one that I presented your Excellency appeared to be incomplete, the original not having been found in that Archive, and inferring from that, that the same may have been misplaced in the years gone by, or that the commissioner should have forwarded said instructive dispatch (expediente) to the Seat of Government about the year 1800 when the Count of Sierra Gorda was Governor, it is my desire to again appeal to your Excellency in the name of my principal, requesting that in the event that the instructive dispatch (expediente) be found in the Archives of the Government, which is now in your charge, your Excellency will order the proper person to extend to me an official copy thereof in order to perfect the application for a grant of the land in the Island of Santiago, which my principal as first (antiguo) settler has heretofore presented; and in the event that said instructive dispatch is not found, your Excellency may accept this as a new application for the land of the Island of Santiago that terminates at the Corpus Christi Bar and consists of Nineteen and half (19½) sitios in favor of my Principal and of his nephew Don Juan Jose Balli, who are ready and willing to satisfy and pay the costs and charges for said land, because it is convenient and advantageous for them for the raising and increase of the cattle that they possess, and thus to prevent that said property should be incoporated by others to their prejudice. I doubt not but that your Excellency taking into consideration the foregoing, the injuries and damages caused by the Carancahuases Indians, that the lands are sandy, that they have no adjoining owners, will agree to grant them the possession that they request, issuing the proper order of the Court of Justice at Matamoros so that the necessary legal proceedings be taken until they be placed in peaceful possession of said land. All with the approval of the Counsel of the State and the audiencia of the Fiscal as provided by the Colonization Law."

Governor's Adjudication

The governor's action on this de Leon petition is embodied in his decree of January 2, 1828, and was: "Not having found in the Archive of this Government the original proceedings, nor the instructive dispatch that the above party mentions and taking into consideration the rights of the parties he represents, I have determined that the Alcalde of the Village (Villa) of Matamoros, after summoning the surveyor named by the Government, the Citizen Domingo de la Fuente, shall proceed to the visual inspection and survey of the lands of the Island of Santiago and all the other legal steps that the law provides, remitting all such proceedings to this Government so that in the event that there is no opposition by right of obsion, or possession there shall be extended to the party the corresponding title of adjudication and property."

Judicial Decree Directing Survey

Pursuant to the governor's order, the second judge, or alcalde, of Matamoros, decreed on February 8, 1828: "* * * Let there be a survey and demarcation of the land of the Island of Brazo de Santiago, situated in this jurisdiction denounced and adjudicated by said government to the citizens of this vicinity, Bachelor Nicolas Balli, as ancient settler of said land, and to his nephew Juan Balli; all proceedings to be had in conformity with the Supreme decree aforesaid, and the Colonization Law of this State. * * * "

Judicial Report of Visual Inspection

Visual inspection of the lands denounced is certified by the judge as having been conducted by him on the 14th, 15th, 16th, 18th, and 19th, and concluded on February 20, 1828:

"On February 14, 1828, the certificate is that he proceeded with his assisting witnesses etc. from San Martin `To the Island of Brazo de Santiago to carry out the visual inspection * * * and crossed to the other side of said Brazo'; and on the same day began the visual inspection `on the other margin of the Brazo de Santiago, the beginning point of the boundaries of the lands denounced by the * * * Citizens Bachelor Nicolas Balli and Juan Balli' and continued the inspection that day from South to North to a place called El Jardin, `Finding nothing in the whole distance travelled except sand dunes, some salty bays, very little and very poor pasture land.'

"On the 15th he certifies that the visual inspection following the same course, continued to the rancho of Santa Cruz de Buena Vista, in which distance `Nothing was found but sand dunes and salty bays with very little pasture grass (with the exception of an opening situated at or near the entrance to said rancho which contains a certain amount of grass) a large amount of cattle and horses belonging to the interested parties'.

"On the 16th the inspection was continued from Santa Cruz de Buena Vista to `The place known as Los Sauces de San Jose, in which distance no other thing was found but many sand dunes, containing a reasonable amount of pasture grass, some salty bays,...