State v. Jadwin

• Decision Date: 02 December 1904
• Citation: 85 S.W. 490
• Parties: STATE v. JADWIN et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

85 S.W. 490

STATE v. JADWIN et al.^*

Court of Civil Appeals of Texas.

December 2, 1904.

Appeal from District Court, Galveston County; Robt. G. Street, Judge.

Action by the state against Edgar Jadwin and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

C. K. Bell, Atty. Gen., and Masterson & Masterson, for the State. M. C. McLemore, for appellees.

GILL, J.

In this suit the state of Texas seeks to recover of Edgar Jadwin and his codefendants the possession of certain lands on the east end of Galveston Island, alleged to have been occupied by it as a site for a quarantine station until unlawfully dispossessed by defendants. The defendants answered, setting up that they were agents of the United States government, and held possession of the property in dispute as such agents, under the title of their principal. It was also suggested that the proceeding was in effect a suit against the federal government, and, because the consent of Congress had not been obtained, should abate. A trial before the court without a jury resulted in a judgment for defendants, and the state has appealed.

The contention that the suit cannot be maintained without the consent of Congress is abandoned in this court; it being conceded that this action comes within the rule announced in United States v. Lee, 106 U. S. 196, 1 Sup. Ct. 240, 27 L. Ed. 171. This leaves for our determination only two questions, viz.: Did the United States government get title to any land on the east end of Galveston Island by virtue of the annexation treaty with the republic of Texas? And if so, is the land in controversy a part of the land so acquired?

In January, 1838, the republic of Texas granted to Michael B. Menard a league and labor of land, according to the following description: "All that tract of land lying and being situated on the east end of Galveston Island and bounded as follows, viz., Beginning at the North East corner of lot 10 in Section No. 1 as represented in plat of survey of the Island of Galveston made by A. C. Trimble and William Lindsey under direction of the Secretary of the Treasury and running thence due North 150 varas to a stake; thence eastwardly with the channel of the harbor in the bay of Galveston and with the general course of said Island at the distance of at least 150 varas from the shore to a stake one hundred and fifty varas from the extreme eastern point of the Island. Thence South to the Gulf of Mexico. Thence with the meanders of the Gulf to the Southeast corner of lot No. 1 in said plat of survey. Thence Northwardly across the Island with the Eastern boundary of lots Nos. one, two, three, four, five, six, seven, eight, nine and ten to the beginning except the reservation expressed in the fifth section of the Act of Congress aforesaid." This patent was issued pursuant to an act of Congress of the republic of Texas approved December 9, 1836, and the fifth section referred to in the grant is as follows: "Be it further enacted that the Government of Texas reserves to itself all that tract of land from the extreme East end of the Island of Galveston running West on the North side of the Island until it strikes a Bayou a short distance from the present Fort. Thence up the Bayou to its source. Thence in a straight line across the Island to the Gulf containing fifteen acres more or less. Also one block of lots in a suitable part of the town for a custom house and other public uses to be selected by an agent to be appointed by the president for that purpose to be selected on or before the first day of public sale of lots at that place." The Menard league is the site of the city of Galveston. By bill of date January 14, 1843, the Congress of Texas appropriated $7,000 for the erection and manning of fortifications for the better protection of Galveston Harbor; and it was therein further provided that a squad of men, commanded by a second lieutenant, should be raised and stationed at the fortification on Galveston Island to take charge of the guns and munitions of war at that point. There was nothing in this bill to designate the point on the island where the fortifications were situated. In the articles of annexation by which the republic of Texas became a state of the federal Union, she undertook to cede to the United States "all public edifices, fortifications, barracks, ports, harbors, navy and navy yards, docks, magazines, arms, armaments and all other property and means pertaining to the public defense belonging to said republic of Texas." All vacant unappropriated lands lying within her limits were retained. That all property falling within this description passed to the federal government upon the admission of the state into the Union is conceded by appellant. Whether, then, the federal government thereby acquired any land on the east end of Galveston Island, depends on whether at the date of admission into the Union the republic of Texas had devoted any land at that point to defensive purposes. Neither by the articles of annexation nor otherwise were any lands on the island conveyed to the United States by any more definite...