Appeal from District Court, Travis County; V. L. Brooks, Judge.
Suit by the state of Texas against A. M. Bruni and others. From a judgment in fafor of defendants, the state appeals. Affirmed.
The nature and result of this suit are stated as follows by the Attorney General in his brief:
"This suit was brought by the appellant to recover from the appellees the title to and possession of a certain tract of land, situated in Webb county, containing about six leagues. The defendants claimed that the land sued for was a part of a grant made to Borrego by the King of Spain, and as the Supreme Court in the case of Von Rosenberg v. Haynes, 85 Tex. 357, 20 S. W. 143, had held that the evidence was sufficient to establish the validity of that grant, it was not questioned, but it was contended that the land in controversy was no part of the Borrego grant. The defendants filed a petition in reconvention under the act of 1903, and asked to have the Borrego grant confirmed, and the boundaries of the same established. It was admitted that there had been made a grant by the King of Spain to Borrego for 47 1/5 leagues of land. It was proven that the original grant was located upon the Rio Grande river, and extended above and below the present corners of the Borrego grant, which are upon the river. It was proven that subsequently a part of the upper portion and also a part of the lower portion of the grant which had been made to Borrego was expropriated for the purpose of founding the towns of Laredo and Guerrera, and that the corners of the portion so expropriated were established on the banks of the Rio Grande at points which are still recognized and well known as the upper and lower corners on the river of what was left of the original Borrego grant. It was claimed that the owners of the Borrego grant were compensated for the land taken for the purpose of founding the towns of Laredo and Guerrera by giving them land back of the unexpropriated portion of the grant. It was agreed that a survey with the river for its western boundary, and the northern and southern lines extending out from the river from the recognized corners to the western boundary of the land sued for, would contain 47 1/5 leagues of land, but it was contended by the defendants that the new grant to Borrego embraced the land extending out to the sierrita or foothills. The question, then, for the determination of the court, was as to whether the back line of the Borrego grant stopped at the point where it, in connection with the other lines, would
enclose 47 1/5 leagues of land, or whether it extended back to the foothills. The case was tried by the court without a jury, and it was found that the eastern boundary line of the Borrego grant extended to the sierrita — a distance of 4,601 varas farther than would be the line if it had been located as contended for by the plaintiff. It was shown that the state had patented a very large part of the lands sued for, and it was not contended that the state should recover the land which had been so patented; but there was a considerable portion of the land to which the state had never parted with her title, and which still belonged to the state, unless it was included within the boundaries of the Borrego grant. Judgment was rendered for the defendants, confirming the title and fixing the boundaries of the land as claimed by them, from which judgment this appeal was taken. It was not, and is not now, questioned but that the judgment was correct, so far as the confirmation of the grant for 47 1/5 leagues of land was concerned, but the objection was and is made that the court should have fixed the boundaries of the land confirmed so as to include only the amount of 45 1/5 leagues."
Counsel for appellees has made the following additional statement as to the nature of the suit.
"In addition to the statement made by appellant as to the nature and result of the suit, to clearly understand the question involved it is necessary to say: The admission by appellant that 47 1/5 leagues of land were granted to Borrego does not justify the assumption that no more land was granted to him. The 47 1/5 leagues were granted on two occasions — a part in 1750 and a part in 1753. The lands so granted were situated on the Rio Grande, with a frontage thereon of fourteen leagues, and a depth back therefrom, for quantity, about three leagues. In these grants the government, by express terms, reserved to itself the right to expropriate at some future time, if deemed necessary, for a purpose stated, a part or all of the lands so granted, and expressly stipulated that Borrego should be reimbursed with other lands for such as might be taken from him under the right so reserved. In the year 1767 the government, in the exercise of the right reserved as before stated, expropriated more than one-half of the land granted, leaving to Borrego, of the 47 1/5 leagues originally granted, a frontage of only six leagues on the Rio Grande, with a corresponding depth of about 3 leagues. Now, the question raised by the pleadings and evidence, and which the judgment appealed from decided, is, what was given to Borrego as compensation or reimbursement for the lands which were taken from him? The plea in reconvention sets out particularly the title relied on, and the judgment is, in effect, that in the year 1767, following the expropriation of his lands, Borrego went into possession of other lands back of and adjoining the part which remained of the lands originally granted, extending his possession as far back as the sierra, and thereafter remained in possession thereof, claiming that the sierra was the back limit or boundary of the lands which were given to him as compensation for those which were taken from him under the reservation in the original grant, and that the evidence showed a good and valid title to all the lands so claimed, including the lands sued for; and it was specially pleaded that the possession, title, and claim of defendants and those under whom they claim is protected under the treaty of Guadalupe Hidalgo. It was also pleaded by appellees that title to the land within the limits and boundaries as claimed was confirmed to Borrego, his heirs and assigns, by a judgment of the district court of Webb county in 1871, in a suit properly brought under the act of 1860, and that such judgment was within the provisions of the remedial act of 1881, directing the issuance of a patent to the lands described in the judgment. The court, however, excluded the judgment of confirmation, together with the field notes of a survey of the lands confirmed, holding that appellees could not claim any benefits under the act of 1881, and, upon such ruling of the court, appellees assign error."
With commendable zeal and energy, counsel for appellees has incorporated in his brief a summary of the testimony relied on by him as supporting the judgment, which is not controverted by the state's counsel, and is found to be substantially correct. That statement is as follows:
"In 1767, about seventeen years after the original grants to Borrego, the commission whose duty it was to assign lands to the settlers of Laredo copied into their proceedings the substance of such original grants. These proceedings are set forth in what is known as `General Visita,' parts of which making mention of the Borrego grant were read in evidence. Borrego had applied to Colonel Escandon for a grant of land to be located within a large body of low land lying on the Rio Grande, extending to the sierrita, about ten leagues to the east. The reservation in the original grant is there stated in the following words: `And should the king in the future need the land or a part of it for founding some city, town or mission, he shall have the right to take such as may be suitable, reimbursing him with other lands in the manner which may be provided, and in order that the conditions may be certain upon which the said Colonel made the grant, he directed in the same decree (which was made in Santander) that they be made known to Don Juan Joseph Vasquez Borrego, son of the petitioner, in order that in accepting them by the authority and orders of his father (which he did in fact accept, as shown in the proceedings) he may bind himself to
comply therewith and he did so before a notary on the twenty-second of said month and year.' And then the commission proceeded to expropriate a part of the lands, basing their right to do so upon the reservation before mentioned, using these words: `We do assign, in compliance with the petition of these inhabitants, considering the aridity of the country, six leagues around the town, from its center in every direction, without excepting the lands occupied by said Borrego, whom we will hear, and upon showing his lawful right he shall receive compensation for the portion adjudicated to the individuals of this place and taken from his boundaries and incorporated in the six league tract.' The original grant extended fourteen leagues on the Rio Grande.
"It was admitted by appellant that the tract of land known as the Borrego grant is now in the possession of the descendants, heirs, and assigns of the original grantee, who, with such grantee, Jose Vasquez Borrego, have occupied said land continuously since the time the same was granted, except during intervals when compelled to flee therefrom on account of roving bands of hostile Indians.'
"The living witnesses who testified establish the fact that the tracts of land known as San Ygnacio, Corralitos, and Dolores constitute what is known as the Borrego grant, the back line of said tracts being the back line of the Borrego grant; that each of the tracts mentioned has a frontage on the Rio Grande of two leagues, and a depth extending to the sierra or sierrita, which is a line of hills running about fifteen degrees east of north, and lying...
