United States v. 1,078.27 ACRES OF LAND, GALVESTON CO., TEX.

• Decision Date: 16 September 1971
• Docket Number: No. 29912.,29912.
• Citation: 446 F.2d 1030
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. 1,078.27 ACRES OF LAND, MORE OR LESS, SITUATED IN GALVESTON COUNTY, TEXAS and Galveston City Company, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

446 F.2d 1030 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. 1,078.27 ACRES OF LAND, MORE OR LESS, SITUATED IN GALVESTON COUNTY, TEXAS and Galveston City Company, et al., Defendants-Appellants.

No. 29912.

United States Court of Appeals, Fifth Circuit.

July 6, 1971.

Rehearing and Rehearing Denied September 16, 1971.

Preston Shirley, Mills, Shirley, McMicken & Eckel, Galveston, Tex., for defendants-appellants.

Anthony J. P. Farris, U. S. Atty., Houston, Tex., Dirk D. Snel, Atty., Shiro Kashiwa, Asst. Atty. Gen., George R. Hyde, Atty., Appellate Section, Dept. of Justice, Washington, D. C., William L. Bowers, Jr., Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

Before WISDOM, THORNBERRY and DYER, Circuit Judges.

Rehearing and Rehearing En Banc Denied September 16, 1971.

DYER, Circuit Judge:

"Facts relevant to this title dispute have been developing since Jean Lafitte was appointed Governor of Galveston Island in 1819 by the Republic of Mexico."¹ One hundred and forty years later, in 1959, the United States brought suit to remove cloud and, in the alternative, to condemn whatever interest defendant City Company² might have in 1,078.27 acres of land situated on the east end of Galveston Island.³ The condemnation proceeding was severed from the trial, pending the outcome of the title issue. The District Court found that the United States already held title to the property at the time suit was brought and since no defendant had any compensable interest in the property, it was unnecessary to determine the issue of just compensation. We affirm.

On January 17, 1833, the Mexican State of Coahuila and Texas conceded to Juan N. Seguin one league of land which included the entire east end of Galveston Island. On July 30, 1834, title to one league was issued to Michael B. Menard as attorney-in-fact for Seguin. Immediately thereafter Menard transferred the title to himself and nine associates.

After Texas declared its independence from Mexico, Menard, as assignee of Seguin, petitioned the Congress of the Republic of Texas to confirm his title because it was subject to doubt. On December 19, 1836, the Congress, by "An Act Relinquishing One League and labor of land on the east end of Galveston Island to Michael B. Menard and Associates," relinquished the land but reserved to itself in section 5, a tract of land containing fifteen acres more or less. The "reserved" land is the heart of this litigation.

On January 28, 1838, the Republic of Texas issued to Menard and his associates a patent for a league and labor of land which included the east end of Galveston Island, but excepted "the reservations expressed in the fifth section of the Act of Congress aforesaid." In January 1842 and June 1843, Menard deeded the land to the City Company by reference to the Seguin Grant and the Menard Patent.

A treaty of annexation was entered into between the United States and the Republic of Texas on June 23, 1845. On December 29, 1845, President Polk signed the joint resolution of Congress making Texas a state of the United States, the terms of which included a cessation to the United States of "all barracks, * * * ports and harbors, docks, magazines * * * fortifications, and all other property and means pertaining to the public defense."

The hurricanes of 1837 and 1875 resulted in substantial erosion and alteration of the low lying eastern end of Galveston Island, including the "Reserve." As a consequence, the City of Galveston and the United States became concerned. They constructed a pier and jetty system which not only arrested the erosion, but caused accretion to commence.

In 1890 the land in question was surveyed by government engineers, under the supervision of Major O. H. Ernst, to relocate the south boundary of the Reserve. It was then marked with cedar posts in the ground, and thereafter a fence along the boundary was erected. In 1898, before proceeding with fortification of the strategic east end of the Island, the Government requested a quitclaim deed to the Reserve from the City Company. On March 17, 1898, the City Company deeded to the United States all land north of the Ernst line on the east end of Galveston Island upon condition

that the said property is to be used by the United States of America for fortifications, military or naval posts, and other public purposes of the U.S. Government, only, and if at any time it be abandoned for the purposes aforesaid, or the said property is used for any private purposes whatsoever, then in such, or any or either event, the title to said property hereby conveyed shall immediately revert to and vest in the said Galveston City Company, its successors or assigns.

After years of consideration by various federal officials — including the Chief of Engineers, the Secretary of War, and the Attorney General — the deed was finally accepted and recorded on August 10, 1910.

The Government used the land as a military fort until 1947. On January 19, 1959, the land was officially transferred to "civil account" from "military account." Since 1947 the City Company has asserted title under the conditions in the 1898 deed and has demanded possession. It has also relied on the Seguin Grant and Concession. The Government, on the other hand, has asserted that it obtained title to the land from the State of Texas in 1845 by virtue of the Articles of Annexation; disputes the validity of the Seguin Grant and Concession; has denied the efficacy of the 1898 deed from the City Company to the United States; and has contended that any claim by the City Company to compensation for the land is barred by the six year jurisdictional limitation of the Tucker Act, 28 U.S.C.A. § 2501.

Preliminarily we find it unnecessary to concern ourselves, as did the District Court, with the question of burden of proof. Assuming the Government had the burden, we entertain no doubt that by convincing evidence it identified and proved title to the land claimed.

Another threshold question posed by the City Company is whether the judgment is fatally infected by the trial court reopening of the case fifteen months after submission and his bringing to the attention of counsel the independent research which he conducted in the meantime. After referring to a 1924 Master's thesis, prepared by a graduate student at the University of Texas, entitled "A History of the City of Galveston to 1865," the trial judge invited counsel for both parties to submit such other evidence as they might desire. Subsequently the Government introduced six exhibits, but not the thesis. The City Company objected to the reopening of the case and the offer of any more evidence.⁴

Manifestly the trial judge felt that the record was, at least in some respects, incomplete. While it is unusual for a trial judge to engage in independent research, particularly with the kinetic energy here shown, we find, for the reasons which follow, that this does not require reversal.

First, the trial judge explicitly stated that his research was utilized only when the results could appropriately be judicially noticed. He did not specify what material he found appropriate, but a close reading of the record convincingly indicates that he was concerned with and took judicial notice of legislative, political, and human events of historical antiquity, circa 1833 to 1845, to determine the existence vel non of fortifications on the land in question at that time. Documents of this era were properly the subject of judicial notice. See Dallas County v. Commercial Union Assurance Co., 5 Cir. 1961, 286 F.2d 388, 396-397; Wickes, Ancient Documents and Hearsay, 8 Tex.L.Rev. 451 (1930).

Second, in this bench trial we are entitled to rely upon the experienced trial judge to separate the wheat from the chaff and thus consider only such matters as he might properly judicially notice. See Baumel v. Travelers Insurance Co., 2 Cir. 1960, 279 F.2d 780, 783; Builders Steel Co. v. C. I. R., 8 Cir. 1950, 179 F.2d 377, 379; McComb v. McCormack, 5 Cir. 1947, 159 F.2d 219, 227. See also Cowlitz Tribe of Indians v. City of Tacoma, 9 Cir. 1957, 253 F.2d 625, cert. denied, 1958, 355 U.S. 955, 78 S.Ct. 541, 2 L.Ed.2d 531; Smyth v. New Orleans Canal and Banking Co., 5 Cir. 1899, 93 F. 899. While it is true that the court referred to and read to counsel excerpts from the Master's thesis, which was inadmissible hearsay and not a subject of judicial notice, he clearly stated: "The basic information is contained in Morgan's papers which are a very famous collection in the Rosenberg Library and the original papers are there. * * *"⁵ The court thereupon reopened the hearing and invited counsel to offer further testimony. The Government accepted the invitation and offered the Morgan papers, which were received as ancient documents.

Third, City Company's objection to the court's reopening the case for further evidence gives us little pause. In a non-jury trial the court may exercise wide discretion in permitting evidence to be offered after both parties have rested. Arthur Murray, Inc. v. Oliver, 8 Cir. 1966, 364 F.2d 28, 34; see Pehrson v. C. B. Lauch Construction Co., 9 Cir. 1956, 237 F.2d 269, 271-272; Chemical Delinting Co. v. Jackson, 5 Cir. 1951, 193 F.2d 123, 127. Where, as here, the court has itself discovered relevant evidence tending to establish the truth of a 150-year-old fact, justice would indeed be blind if that evidence could not be introduced at a reopened hearing.

Finally, we have painstakingly reviewed the record and the exhibits and have found direct support for our determination of the issues which we find necessary to consider and decide on this appeal. Thus, if there was any error in that the District Court "inappropriately" took judicial notice of some matters turned up in its research, we conclude the error was harmless. Fed.R. Civ.P. 61; see Builders Steel Co. v. CIR, 179 F.2d supra at 379; McComb v. McCormack, 159 F.2d supra at 227.

We turn now to the sole...