State v. Gallardo

• Decision Date: 29 April 1914
• Docket Number: (No. 2296.)
• Citation: 166 S.W. 369
• Parties: STATE v. GALLARDO et al.
• Court: Texas Supreme Court

Page 369

166 S.W. 369

STATE v. GALLARDO et al.

(No. 2296.)

Supreme Court of Texas.

April 29, 1914.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Trespass to try title by the State of Texas against Jose L. Gallardo and others. A judgment of the trial court for the defendants was affirmed in part and reversed and rendered in part by the Court of Civil Appeals (135 S. W. 664), and the plaintiff brings error. Judgment of the Court of Civil Appeals affirmed.

Jewell P. Lightfoot, Atty. Gen., John L. Terrell, Sp. Asst. Atty. Gen., and Jas. D. Walthall, Asst. Atty. Gen., for the State. Frank C. Pierce, of Brownsville, Duval West, of San Antonio, Jas. B. Wells, of Brownsville, Don A. Bliss, of San Antonio, and Judge V. L. Brooks, amicus curiæ, of Austin, for defendants in error.

PHILLIPS, J.

The suit was an action by the state in trespass to try title against Jose L. Gallardo and numerous other defendants, to recover two leagues of land in Hidalgo county, referred to in the petition as all of the certain tract, known as "Los Ejidos," that lies on the north side of the Rio Grande river. W. A. Boswell, L. D. Brooks, J. P. McDonald, and F. Spaeth were included as defendants under an allegation that they were asserting some character of claim to the land, which, according to their answer, was a claim of right to have the land awarded them by the state based upon applications to purchase. Against several of the defendants who had not answered, an interlocutory judgment by default was rendered. On the trial judgment was rendered against the state and in favor of all the defendants except Boswell, Brooks, McDonald, and Spaeth, as to whom the suit was dismissed upon the court's finding that the state had never had any title to the land, and accordingly there was no issue between them and the state to be determined. On the appeal of the state the judgment was in all respects affirmed by the honorable Court of Civil Appeals, except as to the defendants who had not answered; the judgment being reversed in that respect and rendered for the state.

The findings of the Court of Civil Appeals set forth in the able and exhaustive opinion of Chief Justice Key (135 S. W. 664), reveal a history of the title that may be summarized as follows:

The land in controversy is the portion lying on the north side of the Rio Grande river of four leagues granted by the government of Spain in 1767 to the town of Reynosa as "ejidos," or town commons; the town being upon the south side of the river, and the "ejidos" extending across it and lying in part upon its northern side. At a time not definitely shown, but probably in the year 1801, on account of the danger from floods of the river, upon petition of its citizens the municipality of Reynosa was removed by the government to another place about six leagues away that became known as "New Reynosa."

On August 31, 1836, when the land was within the territorial boundaries and under the political jurisdiction of the Mexican state of Tamaulipas, the alcalde of New Reynosa addressed a letter to the governor of Tamaulipas, recommending the sale of the "ejidos" of Old Reynosa, stating, among other reasons therefor, that disputes had arisen among the owners of certain tracts adjacent thereto as to their respective boundaries; that, upon the removal of the town, the "ejidos" had been abandoned and left to the exclusive use of the few who remained living there and could be easily sold to the owners of abutting porciones which had no river front on account of such location. The letter was referred to the departmental junta at the city of Victoria, which body recommended the sale by public auction to the highest bidder. On October 5, 1836, such sale was ordered by the governor of Tamaulipas. Pursuant to his order the sale of the "ejidos" was made, on November 9, 1836, at public auction by the alcalde to Fruto de Cardenas, the highest bidder, for $210, which was paid on the same day. In making the purchase, Cardenas was acting for 96 inhabitants of Old Reynosa. On November 10, 1836, the alcalde who made the sale ordered that a deed of conveyance be made to the 96 purchasers. On July 24, 1837, the alcalde ordered the land surveyed before the issuance of title. After the survey, and payment of the surveyor's fees on September 23, 1841, a testimonio of title was issued on September 24, 1841, by the alcalde to the 96 purchasers, for whom Cardenas had acted in bidding in and paying for the land. It is conceded that Gallardo and his associates hold title under this sale.

In the year 1871 Noberto Garza, holding a title under this sale and relying upon it, brought a suit against the state for confirmation of such title under the act of August 15, 1870, in which judgment was rendered for the state and later affirmed by this court. 64 Tex. 670. This judgment was made the basis of a plea of res judicata urged by the state against the defendants' title.

While no occupancy of the land at the time of the sale of November 9, 1836, was established, the proof showed that many of the defendants, Gallardo and others, had been paying taxes each upon a specified number of acres of the land, ranging from 10 to 1,500 acres, from 1879 to the time of the trial in 1909; that some of them, and their ancestors under whom they claimed, had been in possession of the land, some on the Texas side and others on the Mexican side of the river, for 40 or 50 years; that for many years two or three villages had been upon the land composed largely of claimants under this sale and their families; and that there was a tradition in the locality that the ancestors of these defendants had, from the date of the sale, claimed and held possession of the land under it.

An official map of Hidalgo county, dated April, 1880, designates the land involved as "Los Ejidos de Reynosa," with delineation of the various porciones granted to individuals and adjacent to it, and also designating the old town of Reynosa immediately across the river on the Mexican side. Another official map of the county, dated April, 1896, contains substantially the same designations, with certain characters indicating that at some time certificates had been filed on the land. Both maps are on file in the General Land Office of the state.

The Court of Civil Appeals has further found that there was proof tending to show the Commissioner of the Land Office for 1903-09 had treated the land as titled land; that in 1905 the defendants Brooks, Boswell, McDonald, and Spaeth had each made application to purchase four sections of the land from the state; and that the county surveyor of Hidalgo county had made surveys upon each application and returned them to the Land Office, but the Commissioner had taken no action on the claims asserted under these applications.

Other than its resistance through its Attorney General of the suit filed against it by Noberto Garza in 1871, seeking confirmation of a title to land asserted under the sale of November 9, 1836, the state had never contested the validity of the title held under this sale until the institution of the present suit in 1908.

As affecting the validity of the sale of November 9, 1836, under the Mexican law, the Court of Civil Appeals has further found as a fact that at that time the old town of Reynosa had been abandoned and the municipality of that name removed and established at a different place, which is supported by the proof; and that there was evidence affirmatively showing that the Mexican government had acquiesced in the validity of the title under the sale as it is related to that part of the "ejidos" lying on the Mexican side of the Rio Grande river. The land is a part of the territory lying between the Nueces and Rio Grande rivers, originally within the Mexican state of Tamaulipas, over which the Congress of the republic, as a consequence of the Revolution, asserted its sovereignty by the act of December 19, 1836, defining the Rio Grande as the southern boundary of the republic, and with respect to which the historic fact is that the jurisdiction of Texas was not in fact established or exercised, except along and near the Nueces river until after its annexation to the United States in 1845; the Mexican state of Tamaulipas continuing, during such period, to exercise its jurisdiction over that part of the territory on and near the Rio Grande, including this land. State v. Sais, 47 Tex. 307.

The main proposition upon which the state rests its claim is that the title to the land in fee was in the Mexican government, and the land passed to Texas as a part of the public domain acquired by the Revolution. This position controverts both of the propositions upon which the defendants Gallardo and others base their claims, viz.: (1) That the effect of the Spanish grant of 1767 to the town of Reynosa was to vest in its inhabitants such title or right to the "ejidos" included within it as to entitle the defendants, as their descendants and present inhabitants of the town, as against the state, to a continuance of the public use and benefit to which the "ejidos" as town commons was originally dedicated under the grant. Or, in other words, as descendants and present inhabitants of Old Reynosa, they have succeeded to the title to the "ejidos" held by the original inhabitants, which was a right to their public use incapable of divestiture by either the Spanish crown or Mexican government, and enforceable against Texas as the succeeding sovereignty on the cession of the territory. (2) That under the sale of November 9, 1836, the purchasers, under whom they claim and hold, acquired title to the land before the sovereignty of Texas attached to the territory, to which the courts should give effect.

Apart from other questions in relation to the character of title conferred by the sale of November 9, 1836, the state urges the invalidity of that sale under the Mexican law upon the ground, it is said, of the want of...