Strong v. Delhi-Taylor Oil Corp.

• Decision Date: 23 June 1966
• Docket Number: DELHI-TAYLOR,No. 142,142
• Citation: 405 S.W.2d 351
• Parties: Guerry M. STRONG, Appellant, v.OIL CORPORATION et al., Appellees. . Corpus Christi
• Court: Texas Court of Appeals

Page 351

405 S.W.2d 351

Guerry M. STRONG, Appellant, v. DELHI-TAYLOR OIL CORPORATION et al., Appellees.

No. 142.

Court of Civil Appeals of Texas Corpus Christi.

June 23, 1966.

Rehearing Denied Aug. 4, 1966.

Pat Holloway, of Holloway & Simmons, Dallas, for appellant.

Neal King, of Hill, King & McKeithan, Harry Hall, Mission, Robert C. McGuire, of Turner, Atwood, Meer & Francis, Dallas, for appellees .

OPINION

NYE, Justice.

This is a vacancy suit. Appellant filed suit in the District Court of Hidalgo County Texas alleging that there is in existence vacant and unsurveyed public free school land constituting a vacancy within the meaning of Article 5421c, Vernon's Ann.Civ.st. The proceedings in the district court were instigated by the appellant following the order of the Texas Land Commissioner who had determined that 'no vacancy' existed on the lands in question. The Commissioner appointed a licensed state land surveyor in accordance with the law to survey the land in question. At the hearing before the Commissioner, no evidence was allowed except that of the appointed surveyor who testified and filed numerous exhibits. One plat was filed by the surveyor at the request of the Commissioner, which showed no vacancy.

The appellant in his original petition named as defendants, Delhi-Taylor Oil Corporation, 1224 additional other defendants, the United States of America, Jerry Sadler, Commissioner of the General Land Office of the State of Texas, and the unknown heirs, stockholders, beneficial interest-holders in the property and lands described, etc. Some, but not all of the defendants filed a Motion for Summary Judgment which was controverted by the appellant. After the hearing on defendants' motion for summary judgment, and after entertaining both oral argument and written briefs, the court announced that it had considered the exhibits filed therewith, and those in opposition thereto, including the depositions and affidavits on file, and determined that the plaintiff's alleged cause of action was as a matter of law without merit as against all defendants, movants and nonmovants alike. The plaintiff has perfected his appeal to this court.

Appellant's basic contention in this case is: that the east line of Porcion 72 and the west line of Los Torritos Grant was not contiguous and that vacant land exists between such lines. Appellant also contends that a vacancy exists between the north line of Porcion 72 and the south line of the R. J. Swearingen Tract to the north. Appellant's first point is that the trial court erred in granting appellees' (defendants) motion for summary judgment because there was evidence before the court of the existence of vacant lands between the east line of Porcion 72 and the west line of Los Torritos Grant. The lands in question, although at one time were in Cameron County, are situated in Hidalgo County.

None of the original monuments on the ground to Porcion 72 and none of the original monuments to the grants which surround this porcion, including the location of the Rio Grande River in 1767 can be found today. Appellant admits that all of these monuments of the original surveys have disappeared except as to the beginning point of the 1767 survey of Porcion 72 which he contends that the state appointed surveyor Byron L. Simpson has located by following the footsteps of the original surveys from the calls contained in the original field notes of 1967. Basically, it is appellant's contention that because no patent has ever issued to Porcion 72, those claiming title under the original Spanish grant of Porcion 72 are necessarily limited to the evidence of the Spanish grant of Porcion 72 as surveyed in 1767. Insofar as a determination of the boundary lines of Porcion 72 is concerned, appellant argues and the appellees agree, that the only legal relevant inquiry is the location of such grant as surveyed by the Spanish surveyors in 1767. Surveyor Simpson has attempted to locate Porcion 72 by course and distance from where he contends the beginning point was in the original survey in the year 1767, and by such construction he locates Porcion 72 in such a manner as to create a vacancy between Porcion 72 and Los Torritos Grant to the east. (See Plat 3.) ¹

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The appellees contend: that surveyor Simpson did not locate the beginning point nor was he able to follow the footsteps of the original surveyors in 1767; that summary judgment for the defendants is justified because it is impossible for the appellant ever to sustain his burden of showing by legally competent evidence where the alleged vacancy is; that Porcion 72 and the Los Torritos Grant are tied together as a matter of law; and that the land declared by appellant to be vacant, is as a matter of law titled land and is not vacant as defined by the Vacancy Act. We sustain these contentions of the appellees and affirm the judgment of the trial court.

The basic document which appellant relies upon, is the 'Acts of the General Visit to Reynosa'. This is crucial to the appellant's ability to retrace the steps of the original surveyors. It therefore becomes extremely important at the outset to review historically the manner in which these grants of land originated.

The Act of the General Visit called the 'Visita' shows that in 1767 agents of the Viceroy on the authority of the King of Spain arrived in Reynosa to make the first grants of land to the individual registered settlers in that area. These visits by the Royal Commissioner established jurisdictions along the Rio Grande River apparently beginning near Laredo and proceeding eastward toward Reynosa. An Act was adopted on the 24th day of April, 1871 by the Legislature of Texas (Laws of 1871, p. 56, c. 53) entitled 'An Act to provide for the obtaining and transcribing of the several Acts or Charters founding the Towns of Reynosa, Camargo, Mier, and Guerrero, in the Republic of Mexico, and of Laredo in Texas * * *.' Paschal's Digests, Art. 5826. It is from this translation by John S . Haynes, agent appointed under this Act that we quote and rely.

The jurisdiction of Camargo was downstream from Laredo and was apparently laid out in 1767 at or about the same time as the jurisdiction of Reynosa. See State v. Valmont Plantations, Tex.Civ.App., 346 S.W.2d 853, for historical reference. As was said in Sullivan v. Solis, 52 Tex.Civ.App. 464, 114 S.W. 456, by Justice Fly, the surveyors of Camargo (the townsite west of Reynosa):

'* * * had gone to the boundary marked out for the town, which adjoined the boundary of Reynosa, and calculated the depth of the grant, which was five leagues. They then 'stretched the cord from east to west along the margin of the Rio Grande del Norte and with 23 cords and 30 varas for each end and 25,000 varas in depth,' which constituted the first porcion * * *.' of Camargo.

This would be the western limits of the jurisdiction of Reynosa.

The 'Visita' of Reynosa provided that, the citizens of Reynosa:

'* * * convene after Morning Mass, through the medium of the Captain, in order to appoint two Experts for the purpose of classifying the lands in reference to those that are irrigable and those that are temporarily irrigable and suitable for cultivation, grazing, pasturage, commons, and those suitable for the Town, for the purpose of giving them an equitable distribution, that all may share in the good and bad, * * *.'

The citizens of the town petitioned the Royal Commissioners as follows:

'* * * That your Worships may be pleased through the grace of His Majesty (whom God protect) to order that the lands of this Town be designated and divided among its inhabitants giving to each a possession, and we entreat Your Worships may be so generous as to devide them in such a manner as to compensate for deficiency of water which these lands suffer for cultivation, and so as to extent them in such a way as to encourage the growth of our stock, which we possess in a small degree for our maintenance calling the attention of Your Worships to the fact that these lands are of little value on account of the dense woods which exist thereon, and the plains upon which to pasture our stock being limited, especially those on the North bank of the River, (the Texas side) ² so much so on account of their small value as the dangers which are presented by the Pagan Indians and the necessity of caution in the lands they inhabit; on which account we supplicate Your Worships to please order that the greater part of the lands be adjudged to us on the South side of the River (Mexico) ² and also that Your Worships will consider the many embarrassments presented by the River in crossing, either from the want of canoes, the expense of which cannot be suffered by many poor people, or the River being much of the time very high, and the lack of spiritual consolation.'

Surveyors were appointed and ordered that they:

'* * * shall proceed to stake and mark out six leagues (lineal) ² around about this Town, Counting from its center, ² which we assign as its boundaries, within which shall be verified the said partition, unless in running the lines they should encounter the boundaries of another Town, when they shall stop in consequence thereof, and with due regard to the rights and privileges of the settlers, * * *.'

On the 26th day of August, 1767, the declaration of the surveyors stated that:

'* * * they had gone out on the same evening to mark the boundary assigned to the Town, and using the cord composed of fifty Mexican varas, and bearing in the direction towards the west, they stretched it From the center of the Town ² one hundred times, which make five thousand Mexican varas and form one league with which they reached the place called El Desierto (western limit of the town commons) ² in front of the Ranch of Xavier Zamora; * * * and with fifty seven lengths of the cord to the demarcation and boundary of the Town of Camargo, which ...