Hamilton v. Menifee , 11 Tex. 718 ( 1854 )

Hemphill, Ch. J.

This case presents several questions of importance. The want of time, however, forbids the discussion of any but the most essential.

The plaintiff relies upon a concession to Thomas Bnentello. It appears from the title of Buentello, that on the 23rd June, 1832, he petitioned the Governor of the State for a grant of the land in question, representing to his Excellency, that in former years he had addressed two petitions to the Executive to the same effect, bnt that they had not been acted upon; that the land lies without the Littoral Leagues; that he has cultivated the same, and built a house thereon in good faith ; that he has sustained the frontier with arms in his bands, repelling the incursions of the barbarous Indians, for fifty-six years. He prays that he may be put in possession of said land, and have the privilege conceded in the 12th Article of Decree No. 128.

The Ayuntamiento of Goliad sustains his petition, by a report of the same date, stating that he had settled and cultivated since former years.

The Executive, by decree of the 29th of April, 1833, concedes the league, in the place solicited or in the place that may be most suitable, and directs the Commissioner for the partition of lands to which the land solicited may pertain, and in his default, or not being comprehended in any colonization contract whatever, the first or only Alcalde of the respective municipality, will put him in possession of the land and issue the corresponding title.

This concession having been presented to the Alcalde of Goliad on the 28th July, 1833, he decreed that in consequence of the designated land having been declared vacant by law 5b. 177, and not pertaining to any person or corporation whatever, nor to any enterprize of colonization, and finding it without the Littoral Leagues and within the limits of the jurisdiction of the municipality, he, by virtue of the commission conferred on the Alcalde of the village by order of the 25th June, 1831, did order the land to be surveyed by the scientific Surveyor George W. Cash. The field notes being returned, the said Alcalde, by virtue of his commission as aforesaid, did on the 4th August, 1833, issue a title of possession to the grantee, in form, having the legal requisites and the grants of right usually expressed in such titles.

This title is perfect in itself; and, considered alone, its validity cannot be questioned.

But it is objected, that notwithstanding it was the opinion of the grantee and of the Alcalde of Goliad, that the land lay without, yet that it was in fact within the Littoral Leagues, and within the colonial contract of Power & Hewitson ; and that the titles, wanting the assent of the Federal Executive, was void, and will not support the action.

As a general rule, it is admitted, and it has been repeatedly* decided by this Court, that a grant, under the authorities of the State of Coahuila and Texas, for land in the border or Littoral Leagues, must, to be valid, have the assent of the Federal Executive; and that without proof of such assent, it will not, in an action to try title, authorize a recovery for plaintiff. But it is urged on the other hand, that this rule has no impairing efficacy on the title in this case; that if it were admitted that the land lay within the coast leagues and the authorities passing the title were mistaken in their judgment that it lay without, yet the right of the grantee, to the land, cannot; be impeached ; that although it has not the direct, yet it has the virtual assent of the general government; that the authorities of the colony were bound to respect the grant, and if necessary, to issue a new title to the grantee; and that the regrant of the land to Dona Dolores Carabajal, was in violation of law, in derogation of the legal rights of Buentello, and in the exercise of an usurped and not a legitimate authority.

The facts upon which the superiority of Buentello’s claim to the land, over any other, is asserted, are found, some of them, in the record, and some in the contract of Power & Hewitson, though they do not appear in the mutilated copy of the contract, in this record. This land was a portion of the extensive tract once belonging to the mission of Eefugio. On the 21st April, 1830, the Empresario Power represented to the Executive, that a portion of the lands of the mission lay within the limits of his colonial contract, and he requested certain declarations and proceedings to be had, in relation to said lands, to which the Executive replied on the same day; but it is not necessary to notice particularly the substance of the application or the response. On the 26th April, 1831, the Executive was by decree No. 177, p. 181, L. &D., authorized to alienate the lands pertaining to the extinguished missions, and for the better administration of that law, he issued instructions, the fifth Article of which declares in effect, that the Empresarios having contracted to receive in their contract whatever Mexican families may present themselves in the character of settlers, and having the necessary qualifications, consequently the citizens of the village of Goliad, who had directed to the Executive petitions for land in that point, should present themselves to the said Empresarios, and should be received as settlers, and counted in the number of families for which they have contracted.

It appears, then, that a portion of the lands of the mission lay within, and portion without the limits of the colony; that for those lands within the colony, applications had been rnade to the Executive, for grants, by the citizens of Goliad; and the effect of the instruction is to require the Empresarios to receive and treat them as colonists lawfully introduced into their contract. ‘At the date of this instruction, the boundaries of the colony were not defined; nor was the upper line run, until October, 1834, three years and five months subsequent, and fourteen months after the date of the title to Buentello. There is no direct evidence, it is true, that Buentello had made his application before May, 1831; but there is what is equivalent, a recital in his petition of the 23rd June, 1832, that he had in former years addressed two applications to- the Executive. When the line was run in 1834, and when the Empresarios found that it extended above what had been supposed by the authorities of Goliad the true boundary of the coast leagues, they found also within this disputed territory, the grantee Buentello, who was a citizen of Goliad, one who had addressed petitions for land to the Executive within the limits of the mission tract; who had built houses and long settled and cultivated his land ; who had for fifty-six years struggled with all the calamities and horrors of a frontier infested by hostile savages; and to whom, in the full confidence that the land lay beyond the Littoral Leagues, a complete title had been granted by the competent authorities. They found also, that the concession of the Executive, upon which the ■final title was issued, required the Commissioner of the colony in which the land was situate, to issue title to Buentello. What, under the circumstances, was the duty of the Empresarios and Commissioner ? and what was the right of the grantee % Unquestionably to respect the claim of Buentello to the land ; to receive him into the number of their families, and re-issue the title, or ratify the one already issued. He was one of the Mexican citizens provided for by the instruction ;■ and in addition, his concession required the Commissioner to put him in possession and give title to his land. Had he received title, he could not have claimed to be an independent settler. The obligations and rights of the Empresarios and Commissioner were correlative. They were bound to receive him and issue title, and he could not refuse to be classed as a colonist and thus deprive the Empresario of his corresponding premium. Had he been received as a colonist, he could not have been deprived of his land, nor could it have been lawfully granted to another. It is possible he may not have presented himself, nor asked admission as a colonist.

There is no evidence that he was alive at the time the boundary line was run. The presumption is to the contrary; his widow is proven to have been his wife in 1830, 1831,1832 and 1833, but nothing is said about his being alive in 1834. It -was not until October of that year, that this line was extended ; nor was it until December, that the land was granted to another. And even this latter grant carries on its face such marks of fraudulent concealment, as would most probably prevent its coming to the knowledge of Buentello. The Señora Carabajal does not petition for this land. She prays for a renewed title to the lands granted to her deceased husband by the Alcalde of Goliad, under the supposition that it lay without the Littoral Leagues. The Commissioner adjudicates to the applicant the sitio of land which she claims, and proceeds to define the bounds by a survey lately made. All the proceedings in relation to this grant, except the survey, would induce the belief that Mrs. Carabajal was procuring a title for lands granted to her husband, and not for those deeded to Buentello. And had the latter been alive, he would most probably have had no notice of this invasion of his rights. But whether alive or not, whether he had notice or not, under all the circumstances, he had such claim to the land, as could neither be disputed nor resisted, by the authorities of the colony. He had strong and irresistible equities. The Commissioner was bound to respect and regrant his title. The Empresario was under obligation to receive him as a colonist; and the Empresario’s right and duty to enumerate him as such, and receive the corresponding premium, could be disputed by none. And on a familiar principle of equity, we will consider that as having been done by the authorities of the colony, which should have been done; that their attempts to convey the land to another, are nugatory; and if they have any, have no other effect than that of imposing on the second grantee the obligation to transfer whatever right, if any, was vested in her, to Buentello, the original and rightful claimant of the land. And as the claim of the latter, to the land, could not have been disregarded by the colonial authorities, so neither cáú it be impugned by any one on the ground of the supposed nullity of the original title.

Such we deem to be the rights of Buentello, if it were admitted that the lands lay within the Littoral Leagues. But this is by no means free from doubt. It seems that the authorities of the municipality of Goliad, the Surveyor Cash, and the grantee, himself, were confident that it was without the coast leagues. There is no evidence, that at the date of the grant of this title, the Empresarios claimed that the boundaries of their colony extended beyond this tract of land. Their line was not run for more than a year posterior to this grant. This line could have no effect on rights acquired anterior to its extension. Its only effect is to support rights acquired under it, in this contract. It cannot impair those acquired adversely or of an antecedent date.

Besides, it appears that no two surveyors can agree upon the proper locality of this boundary. The County Surveyor of Refugio, or his Deputy, Mr. Richardson, (an accomplished mathematician and scientific surveyor,) established this boundary some miles below the line traced by Mr. White, the Surveyor of the Colony, and below almost the whole of the Buentello league. This survey was made between 1838 and 1841, and its correctness was then, and has ever since been, recognized by the authorities of the country. It was established in order to fix the county boundary of Refugio,- and it continues to be the divisional line between the counties of Goliad and Refugio to this day.

Here are two surveys, entirely disagreeing with each other. If surveyed in one mode, the land of Buentello would be left almost wholly within, if in the other, almost wholly without, the Littoral Leagues. The surveys of Bernard show that the land is more than ten leagues from the mouth of the Guadalupe, though the whole of it is not so far from the head of Mission Bay, which projects into the land some short distance above the mouth of the Guadalupe, but is not within the limits of this colonial contract. He also testifies that by extending a line by mapping ten leagues from the mouth of the Guadalupe N. 45° W., from the outer terminus a line running S. 48Q or 49° W. would leave nearly or quite the whole of this tract within the coast leagues. But this proves nothing. He did not actually run such line, nor ascertain whether such lines should be N. 45° W., or S. 48° or 49° W. These discordant surveys show the inherent difficulty in tracing the interior line of the coast leagues, and the danger to which titles would be exposed by fixing, after the lapse of twenty years from the grants, any specific line as the unvarying boundary by which titles must stand or fall. The restriction on colonization within the border and coast leagues was established for political purposes. But no line was traced by either the General or State Goverments, accurately defining the boundaries of the reservation. Under such circumstances, the line was ascertained in various ways, by the authorities invested with the granting power, in territory adjacent to the boundary; and in conformity to these lines, numerous titles were granted, and rights to lands acquired. It would be an act of great injustice to permit titles fairly and honestly granted, with reference to a line of boundary, not traced by the Government, but honestly determined upon by the authorities, on the best lights which they had on the subject, to be now impeached, because they are two or three miles within or without what may now be supposed to be the exact line. Exactness was difficult of attainment and should not be insisted upon, to the destruction of right. We are of opinion, therefore, that a variation of two or three miles from what may now be determined upon to be the exact line, should not defeat titles, if, when'issued, they were supposed to be in conformity to the line, and which, on •fair principles, cannot be deemed to have been located or deeded in wanton disregard and in violation of the laws, imposing restrictions on titles in the territory embraced by such line.

On these principles, the title of Buentello must be held good, whether it be a few miles within or without the true boundary. It was supposed by the granting authorities to be without the boundary. No line had been run at the time of the grant, although eight years had elapsed from the Colonization Law. And whether this land be within or without the real boundary, is a matter not yet ascertained. So far as authoritative surveys go, one places it within, and the other without the line ; and this latter has long had, and still has, the sanction of the public authorities of the country. The title of Buentello was also prior in point of time, no colonial claim or grant for the land having then been made or issued. The question of the proper mode of defining the interior boundary of the ten coast leagues has been discussed with earnestness and ability, and we will proceed with all possible brevity, to express our views on that subject.

.The fourth Article of the national Colonization Law of the 18th August, 1824, declares, that there cannot be colonized any lands comprehended within twenty leagues of the limits of any foreign nation, nor within ten leagues of the coast, without the previous approbation of the Supreme Executive Power. The seventh Article of the State Colonization Law is to the effect, that the Government shall take care that within twenty leagues bordering on the limits of the United States, of the North, and ten Littoral Leagues upon the coast of the Gulf of Mexico, within the limits of the State, no other settlements shall be made than such as shall meet the approbation of the Executive of the Union, &c., &c. In the translation of this Article of the State Law, as published by Stephen F. Austin, in 1829, the expression is ten leagues, in a straight line from the coast of the Gulf of Mexico. But there is nothing in the original, corresponding to “ straight line,” in the English; and ten Littoral Leagues upon the coast of the Mexican Gulf, is the literal translation of the terms used in the original.

In the first place, then, what is the coast, from which the ten leagues are to be measured ? What was and is geneaally understood by the term coast % The counsel of the appellee has defined the coast or sea-shore to be the contact of the main-land with the main sea, where no bay intervenes, and with the latter, wherever it exists. This we believe to be substantially correct. The term coast undoubtedly suggests to the mind the place of meeting between the main-land and the water of the sea, where no bay intervenes ; but it does not so readily suggest also the shores of the bays. It is rather by a process of reasoning than suggestion, that it is made to comprehend the shores of the ocean, and of the bays, as one unbroken line. But whether the laws on the subject should have been construed to include, or otherwise, the shores of the bays, as a part of the coast, can scarcely be regarded as now an open question. The Governor of the State, in 1826, decided that they should be included ; and the contracts of colonization require the projection of the ten leagues into the interior to be, not from the coast proper of the Gulf, but from the mouths of rivers, all of which constituting boundaries emptying into bays; and whether their mouths be in the heads or lower down in the bays, made no difference with the authorities. The Executive, in his opinion, directed the measurement to be from the shore of the main-land, leaving thus the sea and the lagunas, having communication with it, since, according to his view, they should he considered as parts of one whole.

This continuous line of shore is the one fixed by nature as the exterior line of the coast leagues; and these leagues would be very easily defined, if an interior line, corresponding in all respects to the exterior, could be extended with any reasonable facility, or, if drawn, could be ascertained with such reasonable certainty as to be applicable to practical purposes: The contracts require the upper line to be drawn parallel with the coast. How can this line be drawn parallel to the natural one which has every imaginable curvature and sinuosity ? After the whole country is surveyed, it may not be an entire impossibility to trace upon the map, at least, the exact counterpart of - the coast line, however irregular and diversified. But can any one imagine, that a government would require or attempt such a line in the settlement of a wilderness, for either political purposes, or fixing the boundaries of property ? It would require more numerous monuments and land marks, to ascertain its position, than, perhaps, any other line overdrawn on the globe.

Let us suppose that the restriction on the colonization of the coast leagues had not been removed, and that the General Government had declared it punishable or treasonable to be found in that territory : could the officer or citizen ever know, with precision, when the boundary was passed ? Or could an offender, by dodging from post to pillar, from one dark hole to another, and who, if he took a straight course, might be in and out of the boundary one hundred times in a day, be thus enabled to elude pursuit and escape the penalty of the law ? And when this line is converted into one of property, the same difficulty, in ascertaining rights upon such line, would be experienced. Suppose every league of land on the coast were required to have on its upper end or side, curves corresponding to its coast boundary, and that the surveys were to extend on, in this way, fifty, sixty or one hundred miles into the interior, the confusion and uncertainty of boundaries would be intolerable and, of course, would never be permitted. The difficulty of extending such a line, on the upper boundary ot the reservation, was one never solved by any officer of the former Government. They attempted to run no such line. The Commissioners and Surveyors of colonies had no time for an operation almost impracticable in itself, and which, if completed, would have been, as a line of boundary, both unique and preposterous. The line was always determined in some other mode than that of following the curvatares of the coast.

In this contract, the Surveyor run a straight line between the two outer termini of the end lines of the contract. A straight line in the whole or in part was the only line which could be of any practical service. I have no means of ascertaining whether any interior line was run or not, in the other coast colonies. It is believed that none was traced in Austin’s coast contract.

Titles, it is presumed, were granted there as in other coast contracts, within what was supposed the limits of the reservation or ten leagues from the coast. I am not aware that any orders were issued by the State Government defining the upper limits of these leagues by natural boundary, or that the General Government ever issued but one order on the subject, and that was in reference to the border leagues. That was in August, 1830; and the government, through Gen. Teran, directed the boundary to follow the course of the river Meches to its junction with the Angelina; thence to retrocede to the Trinity, which running to the sea shall close the twenty leagues separated from the mouth of the Sabine river, and in consequence the colonization establishments and possessions, conceded on said lands, are subject to the approbation of the General Government. (See documents in the Land Office.) This extension of the boundary and the consequent proceedings of the Military Commandant at Anahuac, produced quite a spirited controversy between Madero, the Commissioner, and other State authorities with the officers of the General Government; and as long as the contest was confined to words, the former had the decided advantage, but it was abruptly terminated by military violence, the Commissioner imprisoned and the exercise of his authority forcibly suspended. This is believed to be the only instance in which the government attempted to fix the boundary • and its capricious and arbitrary character deprives it of all title to respect.

As before said, the interior line, for practical purposes, must be straight, in the whole or in its parts. The mode of running a straight line between the two upper points has but one advantage, that of being easily understood. But it can be applicable only where the line is short and there is no great curvature of the coast. If long, and there is much deflection, it would enclose a much larger space than the ten coast leagues. If it were, for instance, from the upper point on the San Jacinto to the upper point on Lavaca river,'in Austin’s coast colony, it would pass above the towns of Richmond and Wharton, and for a great distance be sixty or seventy miles from the coast. As a general rule, this mode of running a straight line from a point on one extreme to a point on the other, should not be adopted. There are various modes suggested, and, if time admitted, they are entitled to discussion. But, under the circumstances, we cannot do more than state our conclusion, viz: that the mode adopted by Mr. Richardson, as we understand it, is one sufficiently accurate, and would more generally than any other practicable mode, approximate the imaginary line corresponding to the curvatures of the coast. It is understood that this Surveyor meandered the coast from the mouth of the Guadalupe to the mouth of the Rueces, and, plotting the surveys, laid down a straight line between the two points, and from the point of intersection with that line on Gopano Bay, he run a perpendicular ten leagues into the interior, and from the apex run a line to either boundary parallel to the base line. So far as can be judged from Cordova’s map, this line does not, except in some very minute points, approach nearer than ten leagues—from any part of the coast. This mode is equally certain with the other, and does not involve the danger of swelling the reservation greatly beyond its legitimate proportions. Adopting this line, as the best adapted for the definition of the limits of the Littoral Leagues, the grant of Buentello, except a small portion, being without such limit, is good in itself for all parts without the line; and the remnant, being on and adjacent to the boundary, is valid on the principles heretofore stated in this opinion. Judgment reversed and cause remanded.

Reversed and remanded.