State v. Bradford
Decision Date | 01 June 1932 |
Docket Number | No. 5765.,5765. |
Citation | 50 S.W.2d 1065 |
Parties | STATE et al. v. BRADFORD et al. |
Court | Texas Supreme Court |
Robert Lee Bobbitt, former Atty. Gen., C. W. Trueheart and W. W. Caves, former Asst. Attys. Gen., James V. Allred, Atty. Gen., and F. O. McKinsey, Asst. Atty. Gen., for the State.
G. B. Smedley, of Fort Worth, and F. C. Von Rosenberg and George E. Shelley, both of Austin, for plaintiffs in error Reed and Caswell.
C. A. Wilcox and White, Wilcox, Taylor & Gardner, all of Austin, Birge & Nelson, of Amarillo, Bonner, Bonner & Fryer, of Wichita Falls, Y. P. Broome, of Tulsa, Okl., T. F. Morton, F. F. Allen, and Bryan, Stone, Wade & Agerton, all of Fort Worth, Carrigan, Britain, Morgan & King, of Amarillo, Cofer & Cofer, of Austin, Cook, Smith & McLynn, of Pampa, C. E. Cooper and Davidson & Williams, all of Tulsa, Okl., De Montel & Sanford, of Wichita Falls, Don Emery, of Amarillo, Fitzgerald & Hatchitt, of Wichita Falls, H. S. Garrett, of Fort Worth, W. P. Z. German and Alvin F. Molony, both of Tulsa, Okl., Charles Hill Johns, of Oklahoma City, Okl., Karl F. Griffith, Roy C. Coffee, and Marshall Newcomb, all of Dallas, A. A. Hatch, of Tulsa, Okl., Clayton Heare, of Shamrock, John W. Hornsby, of Austin, R. H. Hudson, of Bartlesville, Okl., T. F. Hunter, of Wichita Falls, James & Conner, of Fort Worth, George L. Kelly and Kilgore, Rogers & Montgomery, all of Wichita Falls, Thompson, Mitchell, Thompson & Young and Koerner, Fahey & Young, all of St. Louis, Mo., Lackey & Lackey, of Stinnett, Lightfoot, Robertson & Scurlock, of Fort Worth, Melton & Melton, of Chickasha, Okl., R. L. Batts, of Austin, Penix & Penix, of Wichita Falls, Phillips, Trammell, Chizum & Price and Polk & Sansom, all of Fort Worth, Ben H. Powell, of Austin, W. H. Francis, A. S. Hardwicke, and Walace Hawkins, all of Dallas, Reynolds & Hear, of Shamrock, A. A. Ledbetter, of McLean, Lewis Rogers, of Houston, Burney Braly, of Fort Worth, Sanders & Scott, of Amarillo, E. G. Senter, of Dallas, Shannon, Ochsner & Pheiffer, of Amarillo, R. H. Templeton, of Wellington, Leslie A. Thompson, Jr., of Denver, Colo., Underwood, Johnson, Dooley & Simpson, of Amarillo, Vinson, Elkins, Sweeton & Weems, of Houston, W. Sherman White, of Pampa, F. J. Winter, of Houston, L. B. Woodson, of Dallas, Works & Bassett, of Amarillo, John L. Young, of Dallas, and S. D. Stennis, of Pampa, for defendants in error.
For a partial statement of the nature and result of this case we adopt the statement made by Associate Justice Blair in the opinion rendered by the Court of Civil Appeals, which reads as follows:
From the judgment of the trial court, the state appealed, and the Court of Civil Appeals held that the pleadings in the trial court with respect to the navigability of the North fork of Red river were sufficient, and that it was error to sustain general demurrers thereto, and the judgment in this respect was reversed and remanded for a new trial upon that issue. In all other respects the judgment of the trial court was affirmed. 25 S.W.(2d) 706. A writ of error brings the cause here.
Plaintiffs in error contend that the Court of Civil Appeals erred in holding that, under the facts set out in the petition of the state, the power of determining the navigability of the North fork of Red river, as defined by the statute, was not vested in the surveyor who made the surveys and locations, and the land commissioner who approved them and made the awards and issued the patents, and that it will not be conclusively presumed, in the absence of fraud or collusion, that these officers, in the exercise of their discretion and honest judgment, found the stream to be nonnavigable and made the surveys, locations, and awards and issued the patents in question, including therein the river bed area, as a part of the land sold, and that such decision is not binding and conclusive upon plaintiffs in error.
On the contrary, the state contends that, the North fork of the Red river being navigable, under the law of this state, the bed of the river was held in trust by the state for the benefit of the whole people, and was not subject to be sold as was done, that that part of the land embraced within the patents which lies in the river bed was never legally sold or conveyed, and that the patents or sales covering that portion of the river bed are void, and that the land still belongs to the State.
The state in its pleadings alleged:
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