The State of Texas et al v. Alberto Balli et al., 144 Tex. 195

Mr. Judge Slatton, of the Commission of Appeals, delivered the opinion for the Court. This is a suit for the title and possession of Padre Island instituted by the State in the district court of Nueces County. Padre Island is situated within the present counties of Nueces, Kleberg, Kennedy, Willacy and Cameron, and is about 110 miles in length. The island is bounded by the Gulf of Mexico on the east, Laguna Madre on the west, Corpus Christi Pass on the north, and the Brazos Santiago Pass on the south.

The island is described in the State’s third amended original petition, on which the case was tried, as containing 135,213 acres of land. The adverse claimants to the State base their claim through mesne conveyance from the Padre Nicolas Balli. The Balli claim grows out of the proceedings with the State of Tamaulipas had in the years 1827-1829, inclusive.

In clause 16 of a revoked will of the Padre Nicolas Balli (Spanish wills of 1811 were archieved in the office of the notary public before whom acknowledged and became public records even though they might never take effect as wills) extant in the Matamoros achives and dated November 4, 1811, it is recited: “I claim as my property the grazing pasture of the Island, while I am not in possession, this is due to the unsettled times, but in fact I had it surveyed and adjudicated and I maintain in there 1000 head of cattle.

I command my heirs that as soon as the times quiet down they shall endeavor to perfect it until the testimonio of the ownership (or title) is obtained. I so state that it may be noted.” The effective date of Mexican independence was September 27, 1821. The former Spanish colony of Nuevo Santander became the State of Tamaulipas after the organization of the New Mexican government in 1824. The first general land law of the new State of Tamaulipas, the General Colonization Law of December 15, 1826 (Sayles’ Early Laws,

Article 89) provided, with regard to applications for lands denounced under the former government for which the titles were incomplete, as follows: “Sec. 26.

Designators of land, which, in time of the ancient government, did not perfect their adjudication shall present themselves to the respective authority to continue its course according to the state thereof, affecting the same within the term of forty days from the date of the publication of this law; and on the contrary, said lands shall be considered open to designation as vacant.” On December 11, 1827, the Padre Nicolas Balli, acting through Diego de Leon, his attorney in fact, presented to Lucas Fernandez, governor of Tamaulipas, his petition for a completed testimonio of the earlier Spanish proceedings, or, in its absence, for a new title from the State of Tamaulipas.

The land described in the petition is as follows: “For the land of the Island of Santiago that terminates at the Corpus Christi Bar and consists of 19 1/2 sitios.” (or square leagues.) We quote briefly from the expediente which was archieved in Matamoros and was offered in evidence by the adverse claimants to the State: “State of Tamaulipas “2nd Judge of Matamoros Year of 1928. “Excediente of inspection and demarcation of the land of the Island of the Brazo de Santiago, situated in this jurisdiction, Denounced by the Governor of this state to the Citizen Bachelor Nicholas Balli, as ancient possessor of this land; and to his Nephew Juan Balli.” DENUNCIO The proceedings, as archived, begin with a petition to Lucas Fernandez, Governor of Tamaulipas, of date December 11, 1827, by Diego de Leon, as attorney in fact for the Padre Nicolas Balli.

Its pertinent portions read: “That having appeared before the Court of Reynosa as Attorney-in-fact for my Grantor to solicit a new copy of the judicial acts and proceedings (testimonio) because the one that I presented your Excellency appeared to be incomplete, the original not having been found in that Archive, and inferring from that, that the same may have been misplaced in the years gone by, or that the commissioner should have forwarded said instructive dispatch (expediente) to the Seat of Government about the year 1800 when the Count of Sierra Gorda was Governor, it is my desire to again appeal to your Excellency in the name of my principal, requesting that in the event that the instructive dispatch (expediente) be found in the Archives of the Government, which is now in your charge, your Excellency will order the proper person to extend to me an official copy thereof in order to perfect the application for a grant of the land in the Island of Santiago, which my principal as first (antiguo) settler has heretofore presented; and in the event that said instructive dispatch is not found, your Excellency may accept this as a new application for the land of the Island of Santiago that terminates at the Corpus Christi Bar and consists of Nineteen and half (19 1/2) sitos in favor of my Principal and of his nephew Don Juan Jose Balli, who are ready and willing to satisfy and pay the costs and charges for said land, because it is convenient and advantageous for them for the raising and increase of the cattle that they possess, and thus to prevent that said property should be incorported by others to their prejudice.

I doubt not but that your Excellency taking into consideration the foregoing, the injuries and damages caused by the Carancahuases Indians, that the lands are sandy, that they have no adjoining owners, will agree to grant them the possession that they request, issuing the proper order of the Court of Justice at Matamoros so that the necessary legal proceedings be taken until they be placed in peaceful possession of said Land.

All with the annroval of the Counsel of the State and the audiencia of the Fiscal as provided by the Colonization Law.” governor’s adjudication The governor’s action on this de Leon petition is embodied in his decree of January 2, 1828, and was: “Not having found in the Archives of this Government the original proceedings, nor the instructive dispatch that the above party mentions and taking into consideration the rights of the parties he represents, I have determined that the Alcalde of the Village (Villa) of Matamoros, after summoning the surveyor named by the Government, the Citizen Domingo de la Fuente, shall proceed to the visual inspection and survey of the lands of the Island of Santiago and all the other legal steps that the law provides, remitting all such proceedings to this Government so that in the event that there is no opposition by right of obsion, or possession there shall be extended to the party the corresponding title of adjudication and property.” JUDICIAL DECREE DIRECTING SURVEY Pursuant to the governor’s order, the second judge, or alcade, of Matamoros, decreed on February 8, 1928: “ * * * Let there be a survey and demarcation of the land of the Island of Brazo de Santiago, situated in this jurisdiction denounced and adjudicated by said government to the citizens of this vicinity, Bachelor Nicolas Balli, as ancient settler of said land, and to his newphew Juan Balli; all proceedings to be had in conformity with the Supreme decree aforesaid, and the Colonization Law of this State. * * *” JUDICIAL REPORT OF VISUAL INSPECTION Visual inspection of .the lands denounced is certified by the judge as having been conducted by him on the 14th, 15th, 16th, 18th, and 19th, and concluded on February 20, 1828. “On February 14, 1828, the certificate is that he proceeded with his assisting witnesses, etc. from San Martin ‘to the Island of Brazo de Santiago to carry out the visual inspection * * * and crossed to the other side of said Brazo’; and on the same day began the visual inspection ‘on the other margin of the Brazo de Santiago, the beginning point of the boundaries of the lands denounced by the * * * Citizens Bachelor Nicolas Balli and Juan Balli’ and continued the inspection that day from South to North to a place called El Jardín, ‘Finding nothing in the whole distance travelled except sand dunes, some salty bays, very little and very poor pasture land.” “On the 15th he certifies that the visual inspection following the same course, continued to the rancho of Santa Cruz de Buena Vista, in which distance ‘Nothing was found but sand dunes and salty bays with very little pasture grass (with the exception of an opening situated at or near the entrance to said rancho which contains a certain amount of grass) a large amount of cattle and horses belonging to the interested parties’. “On the 16th the inspection was continued from Santa Cruz ‘ de Buena Vista to ‘The Place known as Los Sauces de San Jose, in which distance no other thing was found but many sand dunes, containing a reasonable amount of pasture grass, some salty bays, one fresh water lake, and some stock belonging to the interested parties’. “The 17th was a holiday, but on the 18th the inspection continued from Sauces de San Jose to ‘The place of San Vicente’ nothing being- found but “Many sand dunes with much pasture grass, some salty bays, and one fresh water lake’. “On the 19th the inspection was from San Vicente to Carnestolendas in which distance was found ‘Many sand dunes completely covered with pasture grass, some salty bays, lying from East to West, and some horse- stock belonging to the interested parties’. “On the 20th the inspection was continued from Carnestolendas to the Brazo de Corpus Christi, ‘Where the above mentioned lands terminate’, there being found in that distance ‘some wild horse stock belonging to the interested parties, also lands with many high sand dunes, some sand hills covered with grass and large thick trees that are known as Palo de Muelas; a great number of willows, oleanders, short oaks, plenty of herbs known as anise, many fresh water lakes, or pools, covered with reeds, which are known to be permanent’.

On the same day there was inspected an opening angle (ricon) on said Brazo, where were found ‘good Pasture lands, some sand dunes, some high sandy places covered with many willow trees on its side, and low places. “On the same day, (February 20, 1828) the Judge certified that ‘having concluded the visual inspection of the Lands and Island called Brazo de Santiago * * * the visual inspectors and the other members of the committee were examined closely’ and from the inspection and examination of the witnesses the Judge concluded that taking into consideration “(a) ‘The lay of the land from its center lines and * * * the terrain which is uneven and broken by reason of several deep gullies caused by drainage in time of floods, for some of these lands are overflowed when the sea is at high tide. “(b) ‘That said pasture lands were inhabited for a short period by the savage tribe of Indians known as Tarancahuaces (though at present they are peaceful). “(c) ‘Being without a permanent source of water supply, except during the rainy season, when the various lakes and reservoirs therein situated are filled. “(d) ‘There is no other entrance than the one mentioned, that is the aforesaid Brazo de Santiago.’ concluded: ‘That said lands are solely useful for horse stock and cattle.’ ” JUDICIAL REPORT OF SURVEY “The official survey is certified by the Judge as having been begun at one P.

M. on February 20 ‘at the place of Corpus Christi’, and as having been concluded ‘At the aforesaid place of Brazo de Santiago’, February 29, 1828. It consisted, basically in running a line generally from North to South, along the Gulf shore of the Island, with right angle traverses across the Island to ‘the borders of the Laguna Madre’ at intervals, usually of 10,000 varas.

The line along the shore was run on February 20th and 21st, from the place called Corpus Christi to that called Carnestolendas; both named in the report of inspection; and later on the 21st, from Carnestolendas to Los Laurelitos, thence, on the 22nd, to San Juan de las Crucitas, and thence, on the same day, and after running a transverse ‘to the margin of the laguna’, it was continued to the .place of ‘The Buried Stone of Palmerito’ to the ‘Pass of San Augustin’ which was land-marked as ‘The half way, or middle, of the land’. “The 24th being a holiday, the survey was resumed on the 25th, and continued after running a traverse, from the San Augustin landmark to Los Sauces de San Jose.

On the 26th it was again continued, (with another transverse) to a place called Devisadero; from thence on the 27th, after another transverse, to the Rancho de Buena Vista, identified in the report of inspection.

On the 28th it was run from Buena Vista to a place called Boquilla de Loma Alta; the point of departure for another transverse ; and on the 29th it was continued, with a final transverse, ‘until we arrived at the Brazo de Santiago where this survey terminated.’ ” SURVEYOR’S OFFICIAL REPORT AND' FIELD NOTES At Matamoros on March 5, 1828, the judge officially certi fied that: “The Citizen Domingo de la Fuente, the Official Surveyor appointed by the Governor of the State, as well as by the persons that denounced said Island, being well known to me and being personally present, delivered to me his analytic report (Plan Demonstrativo) consisting of six pages, including the corresponding map, and one blank page, and the calculation of what said land consists of, as better shown in the beginning and in the ending of said analysis, which consists of Eleven Leagues (sitios) for large stock and six caballerías of land of which said whole pasture consists, which plan I order to be attached to the Instructive Dispatch (expediente) on this matter in order to be remitted to His Excellency, the Governor of this State, that in view of which His Excellency may order whatever may be of his superior pleasure by reason of the fact that his Decree of January 2nd of the current year has been, in all things, complied with as far as possible. “The Plan Demonstrative was captioned by the official surveyor : “ ‘Demonstrative Plan of the Island of Santiago, denounced uniformly by the ecclesiastic Citizen Nicolas Balli, and his nephew, Juan Jose Balli, resident citizens of the Village of Matamoros to whom said Island belongs, which lies between the sea and the Laguna Madre.

Its length from south to north consists of thirty nine leagues and eighty five cordeladas. Its width from East to West at its widest portion is fifty nine cordeladas diminishing toward each end in unequal proportion until it ends in an angle, following the bends and curvatures formed by the shores of the sea and the Laguna which causes the uneven width of land.

This Island contains eleven sitios for large stock and six caballerías.’ “De la Fuente’s field notes of the survey, conforming generally to the Judicial Report (with unimportant discrepancies) were included with his Plan Demonstrative and map.” ACTION OP COUNCIL “On May 6, 1828, at the instance of the Fiscal or Attorney General, the Governor ordered the Alcalde of Matamoros to remit to him the entire file of proceedings, which seemingly had not been done.

On June 7, 1828, the expediente as thus completed, was considered by the Consejo, or Council of Govern-, ment, which reported: “The lands of the Island of Brazo de Santiago which the Citizen Bachelor Nicolas Balli denounced as ancient possessor and which the Government has adjudicated to him and his brother (should be nephew) Juan Balli, have been surveyed by an expert as shown by the analytic report which shows that the survey is legally correct, but it appears that the aforesaid lands have not been appraised as they should, nor has the visual inspection been carried out according to law because there has been omitted the important step of determining whether the lands contain running or standing waters so that in the whole Instructive Dispatch there is nothing to indicate the highest possible valuation that said lands can have by reason of the advantages that they contain springs, fresh water lakes or pools of fresh water and salty (or brackish water; such failure is of considerable importance to the interests of the State, which will act detrimentally to its future; in view of this omission the Council is of the opinion that without this important fact this matter cannot be considered as concluded, and it is advisable to keep it as pending matter until everything has been done according to law; so that after hearing the opinion of the Fiscal (Attorney General) the corresponding title may be issued on the property in favor of the interested parties, who for a very small sum of money, with respect to the size of the land and of its superior quality, they will acquire a sure (secure) valuable property, sure (secure) because it is isolated, and valuable because it is abundant in natural resources that constituted it very rich.

This is the opinion of the Council but notwithstanding what has been set forth, it will abide the decision of the Government.’ ” CORRECTED REPORT OF INSPECTORS “In order to comply with the requirements of the Council the Matamoros Judge on July 21, 1828, summoned the official inspectors, who had acted with him in the visual Inspection and survey; these reported under oath, that “ * * They say, affirm and prove generally by all the old settlers as well as by those that are able to know and also by new people who live at this time and who have traveled continuously and repeatedly over the Island of Corpus, above referred to, that the greater part of the land is sandy; that it does not contain pools or ponds of rain (fresh) water sufficient to last more than six months, no matter how abundant the rains may be, and not more than three months in time of drought; the case being that there are only two reservoirs (recojerderos) for water than can last six months in times of abundant rainfall as above stated; and the others for shorter periods, ranging from three to one month, of this last class there are fifteen, very small, in all the island.

That there has never been any running water and much less permanent springs of water; that constantly, and regularly, livestock, as well as the inhabitants who care for them, get fresh water from holes or wells, and even this eannot be done in all parts of the island, except at certain well marked places.

That besides what has been said, the fresh water in the holes that are made, or the wells that have been dug, as above mentioned, naturally and after short duration turns brackish; and when, by accident, permanent water, good to drink, is found, then the sea has a high tide and causes the lakes which are surrounded by, and form in the interior of, said Island, to overflow (the low lands in the Island being the place where the fresh water is found) thus causing the wells to be filled with brackish water, and necessitating that other wells and holes be dug for the use of the people, as well as for the livestock that. grazes there.’ ” FURTHER ACTION OF COUNCIL “The expediente, with the inclusion of this new report, was again remitted to the Governor, who again referred it to the Council, which reported to him on August 8, 1828: “ ‘* * * The Counsel (Consejo) is not satisfied with what has been done in this Instructive Dispatch (Expediente) in the discharge of what was required by its opinion of the seventh of last July, and of Your Excellency’s Decree dated the 12th of the same month, because of the contradiction therein noted; however, it (the counsel) may, if it is agreeable to Your Excellency, permit the remaining requirements of the law to be taken until this matter is concluded, requiring only that these proceedings, be placed of record, and extending to the interested party, if he shall demand it, a corresponding copy of this testimonio or legal proceedings. * * *’ ” “The expediente with this last action of the Council, was therefore referred by the Governor to the Fiscal, or Attorney General, who on August 11, 1828, reported: OPINION OF FISCAL “ ‘There are defects noted in the Instructive Dispatch that are necessary to be corrected, to-wit: — The adjoining owners should be cited to a proper visual inspection and survey of the lands; and if there are none, then that fact must be stated by the judge.

For the appraisement of the waters, it was necessary for the Government to name one expert, and that the interested parties should name another. The Council is right when it states that there are contradictions in the reports of the ones that made the visual inspection, because the first says that there are lakes that will hold water for a whole year and then in the sub-sequent inspection it is said that they will last not more than six months.

It is to be noted also that there is no landmark to mark the starting point of the survey and this is one defect that must be corrected. “ ‘Your Excellency may, if it is your pleasure, order that the Instructive Dispatch be returned to the Second Alcade of Matamoros, so that he may make the proper inspection of the land; requiring him to mark the place where there are no fixed boundary lines; to show the place where the survey began; to cite the adjoining owners, and giving them a reasonable time, that Your Excellency may designate, within which they may state, if they have any claim thereto, and if there are no adjoining owners then for the Judge to say so; that the interested parties may name an expert, so that together with the one named by the Government, they may appraise the waters that the land contains; to state if there are any agricultural lands or they are all good only for pasture; that the ones that made the visual inspection have no interest as this will render them suspicious on account of their aforesaid, contradictions; and this being done, then to return the Instructive Dispatch to the Government for the necessary dispositions. * * *’ ” REPORTS OF APPRAISERS “On August 18, 1828, the Governor again ordered the expediente returned to Matamoros for compliance with the requirements of the Council and the Fiscal.

Appraisers were appointed; Manuel Garza by the Governor, and Antonio Maria Casas' by the Ballis; as to whose appointment and qualifications the Judge certified: “ ‘ * * * I ordered to appear before me the Citizens Manuel de la Garza and Antonio Maria Casas, who being personally present (both known to me), I explained to the first the confidence placed in him by the Government of the State and to the second his appointment by the interested parties to represent their interest in the islet (ensenada) that is situated between the sea, Laguna Madre, Brazo de Corpus and Barra de Santiago, and all being well advised, stated, together, that they accepted and they did accept, the appointment made of themselves; by virtue thereof I, the Judge present, took their oath in due form, in the name of God and making the sign of the Holy Cross under which oath they promised to act faithfully and legally and in conformity the knowledge they already posses and which they may take of that land. * * *’ “And with regard to the inspection by the expert appraisers, the Judge certified: “ ‘On the same day and on the same date of the month and year, I, the aforementioned Alcalde, in order that I may execute that has been ordered by the Supreme Government, started the journey to the already mentioned point accompanied by the two experts named and by two assisting witnesses, without summoning (citing) adjoining owners as there were none at any time on that Island, which always had been in the possession of the Citizen Nocolas Balli, and having on the following day arrived at the site (or place) of Barra de Santiago, crossed with my committee to the other side of the Brazo of said Barra, where I advised the expert appraisers that in conformity the steps taken in the first survey made by the Surveyor Citizen Domingo de la Fuente, they should carefully observe the land that they were going to inspect as well as what appears to be contradictory in the appraisement made by the first expert appraisers, Citizens Yrineo Longoria and Miguel Salinas, whose report the Government of the State distrusted with reference to their valuation for the reasons given in the Opinion of the Council; having been so advised they inspected the Island of Corpus Christi together with me, examining thoroughly its pastures, waters more or less of permanent nature, and all that concerns the benefits or advantages that may be enjoyed on that land by the interested parties, and comparing what had been appraised with what fairly and impartially the second expert appraisers knew themselves. * * *’ “And after incorporating into his decree detailed reports by each of said appraisers, which described the Island in minute detail more especially as to its value, or lack of it, for pasture, and permanence of its fresh water supply; and assessed its value at forty pesos per sitio, the Judge concludes: “ ‘Having concluded the present business with reference to the Island of Corpus Christi denounced by the Bachelor Don Nicolas Balli and his nephew, Juan Jose Balli, I, the Judge presiding of the official survey, state that in justice and truth the place where the survey began was opposite the Brazo de Santiago without mentioning any particular landmark for the reason that that tract of land is a banco ensenada, or island situated as already stated, between the Brazo de Santiago Bar, the Corpus Christi Bar, the Laguna Madre and the sea.

For that reason, and because said land is entirely surrounded by water, there have never been any adjacent land owners at any time; but it only has been in the possession of its very ancient and first settlers who are those that have been duly cited. * * *’ ” FINAL ADJUDICATION BY GOVERNOR “On March 12, 1829, the Governor referred the expediente, enlarged by the appraisal and other new proceedings to the Attorney General, who reported on March 17th: “ ‘The Judicial proceedings hereinbefore set forth in this instructive dispatch (expediente) with reference to the denouncement of lands made by the Citizens Nicolas and Juan Jose Balli, residents of Matamoros, of the lands situated in that jurisdiction known as the Island of Santiago, having been concluded, it remains now only to deposit the price of eleven (11) sitios and six (6) caballerías which were surveyed, demanding that a receipt be exhibited for the full amount at the rate of Forty ($40.00) pesos per sitio, as they were appraised; bearing in mind that the money is to be applied to the credit of the State and the City of Matamoros in conformity with what is set forth in the Colonization Law of this State.

When this is done your Excellency may cause the Attorney of the Applicants for the land to be cited so that each of his clients may designate the place where he wishes his land to be.

In view of their statement it shall be ordered that the land shall be adjudicated to each in equal parts designating which part belongs to one and which part belongs to the other and ordering the Judge who presided at the survey to place them in possession of their respective parts, causing the boundaries to be marked with permanent and noticeable monuments.’ ” TREASURER’S ACKNOWLEDGMENT OF PAYMENT “The Governor on March 21, 1829, referred the above order to the Treasurer, who, on the same day, acknowledged that: • “ ‘On this date there has been paid into the Treasury Four Hundred and Forty six ($446.00) Dollars that belongs to the State in payment of eleven (11) sitos for large cattle (ganado mayor) and six (6) caballerías of land denounced by the Citizens Nicolas and Juan Jose Balli in the jurisdiction of the town of Matamoros, as duly appears in the foregoing instructive dispatch (expediente) ; consequently your Excellency may resolve what is the proper action to take in this particular.’ ” GOVERNOR’S ADJUDICATION OF TITLE “And on the same day the Governor decreed: “ ‘The price for the sitios and caballerías of land denounced by the Citizens Nicolas and Juan Jose Balli having been duly paid, at the same time the Citizens Attorney for the owners thereof having stated that he is unable to state the amount of land that should be adjudicated to each because they should have to agree as to this among themselves, let this (expediente) instructive dispatch be returned to the Second Alcalde of Matamoros, so that he may put the Citizens Applicants in possession of said lands in conformity with the terms expressed in the opinion of the Fiscal; and for their protection let the interested parties appeal to this Government for the title to the property, which will be judicially certified.’ ” ACT OF JUDICAL POSSESSION “By the time the growing expediente was again returned to Matamoros, the Padre Nicolas Balli had passed to his reward, and Macedonio Capistran had succeeded Juan Longoria y Casas as Second Judge.

On December 15, 1829, the new judge decreed: “ * * That in order to carry out the aforesaid orders of the Supreme Government of the State and of the Fiscal of the Supreme Court of Justice of the same State, let the Citizen Juan Jose Balli be cited to appear for himself and as heir of the deceased Priest Nicolas Balli, likewise all the heirs of the said Padre Balli who are entitled to half of the Island of Corpus to the end that they be given the corresponding possession with the formalities provided by law. * * *’ “And continued, in a later decree on the same day: “ ‘* * * I command to appear before me and those who are assisting me, the Citizen Juan Jose Balli so that he might be given possession of the part belonging to him in the Island of Corpus; likewise I command the other heirs mentioned in the preceding Act to appear, all being well known to me, and being personally present, I made known to them the purpose for which they were summoned, to which the first above mentioned answered ; That being forbidden on account of illness which he has suffered a long time, it was not possible for him personally to take possession of the land, above mentioned, but that he would empower and to this effect he gave a Power-of-Attorney in favor of, his brother-in-law, the Citizen Rafael Solis, to the end that he should take possession, not only of the half of the island that belonged to him, but also and in like manner of the other part to which he, the Citizen Juan Balli, was entitled as Executor. * * *’ “And in certifying to the delivery of Juridical possession, the Judge continued: “ * Consecutively and in faithful discharge of my obligation I caused myself to be transported to the Brazo de Santiago accompanied by Rafael Solis, the Attorney-in-fact, my assisting witnesses and the instrumental witnesses, to-wit:- the Citizens Juan Cavazos, Louis Cavazos and Anastacio de la Garza; and being on said Brazo, I crossed over to the Island of Corpus, accompanied by the above mentioned parties, and standing on said land I proceeded to place in possession of the eleven (11) sitios for large cattle and six (6) caballerías, of which the Island of Corpus Christi is composed; being comprehended within it, the Island of this name, the place or site known sa “La Boquilla de Loma Alta,” the “Rancho of Buena Vista,” “El Devisadero,” Los Sauces de San Jose,” “El Paso de San Augustin,” “La Piedra Enterrada del Palmerito” and “San Juan de las Crocitas,” “Los Laurelitos,” “Carnestolendas” and Brazo de Santiago of which land the Citizen Rafael Solis took possession in the name of his principal, Juan Jose Balli, of the part that belong to the late, Bachelor Micolas Balli, as better appears from said Power of Attorney which is attached to this instructive dispatch. * * * and I, said Judge, state that I would protect and did protect him in the possession of it, from which he may not be ejected without first being heard, under oath, and legally adjudicated against, and that he will never be required to have a new survey; which possession was taken in the presence of those aforementioned by virtue of which he is and must be considered the true and legitimate owner and lord of the half of said land in conformnity with the application for said land and the adjudication of it made to him by the Governor by virtue of said application and the payment aforesaid; being likewise placed in possession of the part of the land that as Executor of the aforesaid late Padre Balli he should have, so that he, for himself, his heirs and successors as their own, may sell, exchange and convey according to their will.

All of which, in order that it may thus legally appear, I entered of record as a judicial act. * * *’ ” JUDICIAL CONCLUSION OF PROCEEDINGS “And at Matamoros, December 25, 1829, he concluded the proceedings by certifying that: “ 1 * * * Having complied with the Supreme decree of His Excellency, the Governor of this State, dated March 21 ultimo, and having placed the Citizen Juan Balli, for himself and for his uncle Don Nicolas Balli, Deceased, in actual and legal possession of the lands in the Island of Corpus Christi; after having exhibited to me the receipt of the Minister of the General Treasurer of this State showing that legal payment had been made by each of them; have ordered, and by these presents do hereby order, that, these proceedings having been concluded and the matter terminated, this instructive dispatch be protocolized in the Archives under my charge, and the interested party, who has taken possession, should apply to this Court for himself and his deceased uncle, Don Nicolas Balli, for the legal certificate referred to in the said Supreme decree, so that with it he may appear before the Supreme State Government to obtain the evidence of his title to said property, since they are in legal quiet and peaceful possession of their respective lands. * * *’ ” The “Legal Certificate of Title” or “Final Concession” from the governor of Tamaulipas, for which, in the concluding decree of the expediente the Ballis were judicially authorized to apply, is not in evidence.

Those adverse to the State seek to account for its • nonproduction in this way: Miller and Bourland, the commissioners appointed to investigate titles to land situated between the Nueces and the Rio Grande, under the act of February 8, 1850, certified in their final report that Nicolas Balli and Juan Jose Balli had “obtained a title from the proper authorities.” They also certified that all of the papers and original titles connected with the claims presented in Cameron County were lost by them in November, 1850, “in the unfortunate wreck of the streamer Anson while on her passage from the Brazo Santiago.” The protocol of such a final certificate became an archive of the Tamaulipas records at Victoria, the state capital, which were destroyed by the French troops in 1864.

Those claiming adversely to the State offered in evidence the last will and testament of the Padre Nicolas Balli dated August 6, 1828, which is an archive of the municipality of Matamoros ; a certified copy was recorded November 5, 1909, in the office of the county clerk of Cameron County, Texas, and provides as follows: “Seventeenth: I declare as mine the agostadero (pasture land) of the Island of Santiago, which is composed of eleven leagues (sitios) of land; and which I have had surveyed and allotted, and which at present I am adjusting with the government of the State of Tamaulipas so as to obtain the titles thereto; and said agostadero should be divided in half with my nephew, Juan Balli, provided that he pays half the costs, a memorandum of which will be found in my account book.

I so declare that may appear (be known). “Eighteenth: I declare as mine a small farm (labor) for the breeding of horses and mules and I have in said agostadero of the Island of Santiago which I have given in halves for the term of three years to my nephew, Juan Jose Balli, in accompliance with a document which to this end was made and signed between us, and which will be found among my papers.

I so declare that may appear. <<* * * * “Twenty-seventh: I declare as my heirs my nieces and nephews Maria Josefa Balli, Juan Jose Balli, Rosa Maria Balli, Maria Guadalupe Balli, and Maria Concepcion Balli, the children of Francisco Balli, per stirpes, that they may divide among themselves my entire wealth, and may enjoy the same in equal parts, with the blessing of God; and I order that with such they must maintain their father, Jose Maria Balli, and that when he dies they must bury him with decency.” On January 19, 1830, Juan Jose Balli, by a Mexican notarial act archived in Matamoros, and subsequently on October 11, 1883, recorded in the office of the county clerk of Cameron County, conveyed to Santiago Morales his original one-half of Padre Island, together with one-half league more that he had acquired by inheritance from his uncle, the Priest Nicolas Balli.

At the same time his close kin, either in person or through an Attorney in fact, appeared before the notary and agreed that Santiago Morales might take his lands in the northern portion of the Island, while the other devisees of the priest should take their respective undivided interests from the remainder or southern one-half of the Island.

There is in evidence the will of a niece of Padre Nicolas Balli, of date May 13, 1833, archived in Matamoros and recorded in 1909 in the office of the county clerk of Cameron County, which recites: “Seventh: I bequeath to my nephews and godchildren Antonio, son of Guadalupe, and Jose Maria, son of Rosa, the share that may belong to me in the pasture land of the Island.” Santiago Morales, on February 7, 1842, executed a document in the nature of a mortgage under the Mexican laws then in effect whereby he mortgaged the southern half of the lands on Padre Island acquired by him from Juan Jose Balli to Maria de los Dolores Garcia to secure the payment of $1111.32, Mexican money.

Santiago Morales, on July 17, 1845, by Mexican notarial act, a copy of which was subsequently recorded in the office of the county clerk of Cameron County, conveyed to Jose Maria Tovar the north half of the lands of the Padre Island acquired by Morales from Juan Jose Balli. Rosa Maria Balli and Maria Guadalupe Balli conveyed to Nicolas Grisante their own share in three caballerías of land on Padre Island derived by them through inheritance from their uncle, the Priest Nicolas Balli.

Refugio Solis, on September 25, 1846, conveyed her interest in the island to Nicolas Grisante, with the same description as contained in the deed next amove mentioned. Maria del Carmen Balli de Solis, as guardian, conveyed, on October 28, 1846, to Nicolas Grisante the interest of her three minor children. Francisco Balli, as the father and guardian of his children, conveyed to Nicolas Grisante their interests, to whom the priest had devised one-seventh of one-half of Padre Island as the children of said Francisco Balli.

Jose Maria Tovar and Nicolas Grisante, on December 31, 1847, filed for record in the office of the county clerk of Nueces County a compulsa of the testimonio of the proceedings in behalf of Nicolas and Juan Jose Balli relating to Padre Island.

A report of the commissioners Bourland and Miller, in their final report to the legislature under their file No. 37, for Cameron County, recites: “Nicolas Grisante and Jose Maria Tovar apply for 11 leagues of pasture land called ‘Padre Island’ originally granted by the Spanish Government to one Nicolas Balli and subsequently confirmed to him and his nephew Juan Jose Balli by the Mexican Authorities.

Witnesses proved the occupation of said tract of land by said original grantee and his nephew for the last fifty years; and that they kept thereon the requisite number of stock to entitle them to the grant of 11*4 leagues, never having any adverse claimants, &c. They having obtained a title from the proper authorities and resided upon the land peaceably for a number of years, we recommend for confirmation 11 >4 leagues only to the heirs or assigns of the original grantee, for we feel confident that the island called Padre Island contains or embraces over thirty leagues of land.

It is therefore to be understood that we recommended only 11 *4 leagues of said Island.

For testimony in this case see File No. 37 Cameron County.” Said commissioners recommended for confirmation “11 ¿4 leagues only to their heirs or assigns of original grantee, for we feel confident that the island called ‘Padre Island’ contains or embraces over 30 leagues of land.” The final report of the. commissioners, with accompanying title papers and other evidence, was submitted to the governor as the act of the legislature of 1850 required, and was by him transmitted tq the legislature for its action on each individual claim.

This report was referred by the legislature to a select committee of the house and senate, which re-examined each claim and drew a bill which provided for confirmation of each of the grants recommended by Miller and Bourland, and for confirmation of a number of grants the commissioners had failed and refused to recommend.

With regard to the grants thus recommended for confirmation the joint committee said: “* * * In making their report, the Committee have been compelled to decide for themselves the following questions: Was there an original grant or title founded in good faith: Was it perfect, and if so, were its conditions subsequently complied with: — If imperfect, was it perfectable?

Has the party claiming, continued to possess the same, except when forced to abandon for good cause? (Such as incursion of Indians, etc.) Did the applicant erect fixed improvements, such as houses or jacals, fences, etc.? “ * * * * where the committee have been able to decide each of these questions affirmatively, they have reported the claim favorably.

Therefore, bearing in mind, the law of the 8th of February, 1850, constituting said board; endeavoring to carry it into effect in letter and spirit; believing, moreover, that the State will be doing sheer justice to thousands of her citizens, around whom, heretofore, she has been unable to cast the arm of protection, we report the accompanying bill to confirm certain titles therein set forth, and urgently recommend its passage.” The legislature of Texas adopted the bill thus recommended as

an act approved February 10, 1852. Gammel’s Laws of Texas, Vol. 8, p. 941; Paschal’s Digest of the Laws of Texas, Vol. 1, p. 734, Art. 4461. The act provided: “That the State of Texas hereby relinquishes all her right and interest in the following described lands to the original grantees thereof, their heirs and legal assigns, towit: * * * Cameron County * * *. “

(12) Nicolas Balli and Juan Jose Balli eleven and a half leagues called “Padre Island’: * * *” The act thus adopted was identical with the bill recommended by the select joint committee, but with a proviso added in

section 5 of the act as follows: “Section 5. * * * Provided that nothing in this act shall be so construed as to relinquish the rights of the state to any of the Island or salt lakes situated in the territory embraced in this act.” The will of Jose Maria Tovar, previously registered in the archives of Matamoros, Tamaulipas, on February 25, 1855, was offered for probate in the county court of Nueces County, Texas, and by subsequent proceedings his interest in Padre Island which had been fully inventoried and described, was, by an agreement approved by the county court of Nueces County, partitioned among his heirs and devisees.

By the terms of this partition one-half league or 2214 acres at the north end of Padre Island was set apart to Praejedes Tovar and Calixto Tovar, children of said Jose Maria Tovar, and the remainder of his interest in the north half of Padre Island described in the order of sale as 11,785 acres in all, having first been surveyed, platted and subdivided into 24 lots of 485 acres each, except Lot No. 1, which contained 640 acres, was sold by the administrators under proper authority of the county court of Nueces County, Texas, to pay the costs of the administration and debts due by the estate.

Said 24 lots were sold pursuant to the order of the court at Corpus Christi at public auction November 2, 1859, which sales were duly confirmed by the county court of Nueces County. From and after the act of confirmation of February 10, 1852, Padre Island was shown and delineated as titled land on maps in the General Land Office by reference to the names of grantees and the act of confirmation as follows: “

(1) Map of the County of Nueces and portions of the adjoining counties, showing the locality, dates and claimants of the several grants made by the Governments of Spain and Mexico, compiled from actual surveys by Felix A. Blucher, District Surveyor, November 20, 1859. “

(2) Map of Nueces County, 1877. “

(3) Map of Nueces County General Land Office May, 1896. “

(4) Map of Cameron County, compiled and drawn by A. B. Langermann, General Land Office Austin, February, 1880.” The trial court rendered judgment for the adverse claimants to the State for the title and possession of Padre Island and described the same as containing 135,213 acres of land as the island was surveyed for the State by J. Stuart Boyles during the year 1941. The cause was appealed to the Fourth Court of Civil Appeals by the State and the judgment of the trial court of Nueces County was in all things affirmed. 173 S. W. (2d) 522-544.

This court granted a writ of error because of the importance of the questions involved. The State contends that the claimants, having admittedly failed to have a survey and the plats thereof and a return of such survey and field notes to the General Land Office, under

Section 8,

Article 14 of the Constitution of 1876, their claim “shall be forever barred.” It was provided by

Section 2 of the General Confirmation Act of February 10, 1852, in which the State relinquished unto the respondents’ predecessors in title the title to Padre Island, that the same should be surveyed and a return of the field notes thereof to the General Land Office made, and that the Commissioner was authorized and required to have the same plotted on the maps of his office and issue patents therefor.

Section 8,

Article 14 of the Constitution of 1876, provides: “Persons residing between the Nueces River and the Rio Grande and owning grants for lands which emanated from the government of Spain or that of Mexico, which grants have been recognized and validated by the State by acts of the Legislature approved February 10, 1852, August 15, 1870, and other acts, and who have been prevented from "complying with the requirements of said acts by the unsettled conditions of the country, shall be allowed until the first day of January, 1880, to complete their surveys and the plots thereof and return their field notes to the General Land Office, and all claimants failing to do so shall be forever barred, provided nothing in this

section shall be construed as to validate any titles not already valid or to interfere with the rights of third persons.” The State’s main contention is that on account of the claimants’ failure to comply with the Relinquishment Act and the quoted provisions of the Constitution, the grant to Padre Island had been forfeited and all benefits from its legislative confirmation have been lost. It will be noted that the quoted

section of the Constitution has never been considered by any of the appellate courts of this state. Provision was made for surveys, field notes and patents in terms similar, and in some cases identical, with those contained in

Section 2 of the Act of Confirmation of 1852, in the Act of February 11, 1858, relinquishing the right of the State to certain lands in El Paso County. Clark v. Hills, 67 Texas 141, 2 S. W. 356. The Act of February 11, 1860, provided for adjudication of claims for land between the Nueces and the Rio Grande and in the Act of August 15, 1870, and for the adjudication of title to lands situated between the Nueces and the Rio Grande originating prior to December 19, 1836, State v. Sarnes, 47 Texas 323. The court says: “The object of the survey required by the 8th

section of the act, (of August 15, 1870) is to identify the boundaries of the tract of land previously surveyed, so that the surveys may be identified by appropriate calls, in connection, with or in reference to other surveys, or fixed and known objects, and be placed on the county map in the General Land Office. This could not be done without another survey, as there was no necessary connection kept up, in the Mexican plan of making surveys, but each tract was identified by calling for the name of a place informally, and sometimes by calling for an adjoining tract by its name.” It was recognized in Clark v. Hills, 67 Texas 141, 2 S. W. 356, that a similar

section did not limit or impair the provision for confirmation in providing for a survey of the land. As was stated by the Supreme Court of the United States in Langdeau v. Hanes, 88 U. S. 521, 22 L.

Ed. 606, speaking of a congressional act of confirmation containing a similar provision for a survey: “In the present case the patent would have been of great value to the claimants as record evidence of the ancient possession and title of their ancestors and of the recognition of confirmation by the United States and therefore obviated in any controversies of law respecting the land the necessity of other proof and would thus have been to them an instrument of quiet and security. But it would have added nothing to the force of the confirmation.

The survey required by the patent was only to secure certainty of description in the instrument and to inform the government of the quantity reserved to private parties from the domain ceded by Virginia.” A similar

section in

an act of confirmation was held to be remedial and for the benefit of the owner of the claim to land in the early case of Byrne v. Fagan, 16 Texas 391. The quoted

section of the Constitution was written after the rendition of each of the cases cited above, and it is not unreasonably to be presumed that the framers of the Constitution, in writing that section, may be presumed to have had them in mind; thus the Constitution only applies to a valid grant; it applies only to the owners of grants emanating from the government of Spain and Mexico which had been expressly recognized and validated by the State.

It is limited to owners “who have been prevented from complying with the requirements of said (validating) acts by the unsettled condition of the country.” It does not apply to all grants from Spain and Mexico, as, for example, that construed in Clark v. Hills, 67 Texas 141, 2 S. W. 356, but only to those within the formal limits of the Mexican state of Tamaulipas. It was perhaps placed in the Constitution of 1876 for the purpose of relieving owners of grants of the specified class from which the effects of

Section 4 of

Article 13 of the Constitution, which was annulled after the adoption of the Constitution by the Supreme Court of Texas in Texas-Mexican Railway Company v. Locke, 74 Texas 370, 12 S. W. 80. We are of the opinion that the reason for this special remedy did not in any case apply to the grant in question. Only grants with uncertain boundaries needed additional surveys. Such resurveys, when made, have not been though important by the appellate courts of this state. See Corrigan v. The State, 42 Texas Civ. App. 171, 94 S. W. 95; State v. Corrigan, 94 S. W. 101; Sullivan v. The State, 41 Texas Civ. App., 89, 95 S.

W. 645; Sullivan v. Texas, 207 U. S. 416, 52 L. Ed. 74, 28 Sup. Ct. 215. We quote again from Clark v. Hills, 67 Texas 141, 2 S.

W. 356: “In cases where the grant of a former government is confirmed, the survey becomes important only when the land has not been previously surveyed, so as to segregate it from adjoining territory, or when the description of the land is so vague as to require a survey to designate and fix its boundaries with certainty.” The land in suit, as we have already pointed out in our statement of the case, is described as follows: “The barras (or inlets) of the Brazo de Santiago and Corpus Christi, the Laguna Madre and the sea.” No survey was necessary to identify boundaries or to enable the Land Commissioner to plat them on his maps.

As the evidence shows, the grant was so platted on the Land Office maps of Cameron and Nueces Counties both before and after the time limit prescribed in

Section 8 of

Article 14 of the Constitution of 1876. Failure to make surveys and file field notes as required by the second

section of the Relinquishment Act of February 10, 1852, and by

Section 8 of

Article 14 of the Constitution of 1876 has never been accorded the slightest importance either by the political authorities of Texas or by the courts. See State v. Corrigan, 94 S. W. 101; Schaeffer v. Berry, 62 Texas 705; Haynes v. The State, 100 Texas 426, 100 S. W. 915. We are also of the opinion, as was suggested by the Honorable Court of Civil Appeals, that to construe the quoted

section of the Constitution in accordance with the contentions of the State would necessarily raise serious constitutional questions. In the light of paragraph 2,

Article 6, of the Constitution of the United States and certain other constitutional provisions, including those prohibiting the impairment of obligations of contract, the denial to any citizen the equal protection of the laws, and the taking of private property without due process of law and, as was remarked by Mr. Justice Bradley in Gonzales v. Ross, 120 U. S. 605, 30 L. Ed. 809, 7 Sup.

Ct. 705: “A man whose title was good in 1876, when the Constitution was adopted, whether his muniments of title were on record or not, could not be deprived of it by a simple ipse dixit of the Constitution, any more than by a legislative act.” It is an elementary rule, too well established to require the citation of authorities, that forfeitures are not favored in the law. The courts will, if possible, avoid them. It is not an unreasonable construction, in order to avoid the consequences of a forfeiture, to construe the

section to mean that the owners of grants within the limited territory described “shall be forever barred” from receiving a patent from the State of Texas if the surveys, etc., are not filed with the Land Commissioner by the time specified, towit, January 1, 1880. The denial of the patent to an owner of an earlier valid grant by the State of Texas would not be a taking of property without due process of law. This is obvious when we consider that the holder of a valid grant from a prior government can defend his title where called in question with all the evidence he has of his prior valid grant.

But if the holder of a valid grant from a former government desired to have better evidence of his title, it could be obtained by a compliance with the requirements of the quoted

section of the Constitution. Thus it is seen that for the expenses required to comply with the requirements of the Constitution the claimant of a valid grant was given a better evidence of his title. This was reciprocal in its nature in that the government, that is, the State of Texas, would give a patent its best evidence of a title in return for the owner of the grant giving to the government a correct survey, maps, plats, etc. The considerations of both enured to the holder of a valid grant and the State of Texas.

In our opinion it would be violence to the language employed and to every rule of construction to hold that the framers of the Constitution meant that the holder of a valid grant to land would forfeit his ownership to the land by a failure to have the same surveyed and to file the field notes and plat of such a survey with the Land Commissioner of Texas. The case of New York & Texas Land Company v. Thomson, 83 Texas 169, 17 S. W. 920, relied upon by the State, deals with an unlocated land certificate.

An unlocated land certificate is merely “the obligation of the government entitling the owner of it to secure the designated quantity of land by following the requirements of law.” The effect" of the Relinquishment Act of 1852 was “to recognize the validity of the Mexican grant and render the title perfect as against the State.” Clark v. Hills, 67 Texas 141, 2 S. W. 356. The State next contends through its third point that the lower courts erred in holding that the Texas legislature, in

Section 5 of the Act of February 10, 1852, did not refuse to relinquish title to Padre Island. The final clause of the general act of confirmation provides: “Provided that nothing in this act shall be so construed as to relinquish the rights of the State to any of the islands or salt lakes situated in the territory embraced in this act.” The Legislature of Texas, at its first session after the proclamation of the treaty of Guadalupe Hidalgo, adopted an appropriate measure to give the treaty effect.

By its act approved February 8, 1850, it provided for the investigation of titles to land in the ceded territory emanating from the former sovereign, which by the terms of the treaty the new sovereign was bound to respect. Bourland and Miller were the commissioners appointed to make the investigation under the terms of this act. They visited the region affected, held stated sessions in the county seats of each of its counties, and called for and received applications for legislative confirmation of all legitimate grants entitled to the protection of the treaty, whether perfect or perfectable grants.

The title papers and other proof of adjudication and possession were presented by the owners and examined by the commissioners. The commissioners made a detailed report on each application with their own recommendation to the legislature as to whether the claim should be confirmed as a perfect or nerfectable grant. In a number of cases presented the commissioner’s recommendation was qualified in some way.

The report of the commissioners, with accompanying title papers and other evidence, was submitted by them to the governor as the act required and was transmitted by the governor to the legislature for its action on each individual claim. The report of the commission was referred by the legislature to a select committee of house and senate, which re-examined each claim for confirmation on its own merits and drew a bill to provide for unqualified confirmation of each grant recommended by Miller arid BouT’hnd and for the confirmation of a number of grants the commissioners had failed or refused to recommend.

This bill was enacted by the legislature without change except for the inclusion of the proviso here discussed. In earlier legislation of that period the legislative intent in adopting the proviso is made to more clearly appear. On December 19, 1836, the congress of the Republic of Texas enacted a joint resolution authorizing the president to borrow $20,000.00, issuing land scrip therefor. The third

section of that resolution reads: “ * * * that all Islands belonging to this Republic shall be, and are hereby reserved for the Government use, except the President be authorized specially by Congress to sell them.” Hartley’s Digest, Art. 1779, as quoted in the case of State v. Delesdenier, 7 Texas 76, loc. cit. 102. On June 8, 1837, it adopted

an act for the relief of James Erwin and others (Hartley’s Digest, Art. 1810), the object of which was to discharge a debt contracted by government by means of the sale of land scrip. This act contained the proviso: “Provided, that no lands granted by the Government shall be located on salt springs, gold or silver, copper or lead, or other minerals, or any Island of the Republic.” Quotation from State v. Delesdenier, 7 Texas

Section 2 of the act of congress of January 20, 1840, adopting the common law as the rule of decision, read: “That all laws in force in this Republic prior to the first of September, 1836, (except the laws of the Consultation and Provisonal Government now in force, and except of lands in the State of Coahuila and Texas, and also such laws as relate to the reservation of islands and lands, and also of salt lakes, licks and salt springs, mines and minerals of every description, made by the General and State Government) be, and the same are hereby repealed.” These provisions of these early laws of the Republic have been construed and discussed by the Supreme Court in the following cases: The State v.

Delesdenier, 7 Texas 76; Roberts v. Terrell, 101 Texas 577, 110 S. W. 733; Cox v. Robison, 105 Texas 426, 150 S. W. 1156. Two lines of public policy existed, First, that land certificates issued under the ordinary land laws must not be located on islands belonging to the state, and that such lands are to be sold only by special law; and second, that title to minerals shall not pass without express words of designation by ordinary grant.

Both policies were considered as being* founded on the policy and laws of the preceding sovereign and the express policies that the legislature of Texas intended to continue in effect. The reservation contained in the final clause of the confirmation act of February 10, 1852, undoubtedly refers to the policies stated as regards both islands and salt lakes; policies which had been so often proclaimed by the acts of the Republic from 1836 on and which have been so recently re-examined and declared existing policies by the Supreme Court in the Delesdenier case.

If the legislature believed, as it certainly did believe, that the public policy of the state was to continue the reservation of rights in the public lands which had originated under the former government and had not meanwhile been lost, it is easy to understand the intent and purpose of the final clause. The proviso, therefore, was intended by the legislature to protect the grants as made pursuant to the treaty of Guadalupe Hidalgo and to except from the relinquishment or quitclaim those rights the State had as a successor in sovereignty by virture of reservation of the former government.

The legislature did this by using the same verbiage as that used by the congress of the Republic in the Act of 1840 adopting the common law. This is the only explanation that is consistent with the public policy the legislature has so often declared. If it does not account for the action of the legislature in adopting the proviso, then we have a case of a repugnance between the language of the proviso and the express separate confirmation of Padre Island. It cannot be presumed that there was a legislative purpose to recognize and confirm the Padre Island grant as an individual grant in the first

section of the act and then withdraw that recognition through a general exception in the last

section of the act. An elementary rule of statutory construction applicable in such a case is that where a general provision of the same law, the special provision must prevail. Lufkin v. City of Galveston, 63 Texas 437; City of Austin v. Cahill, 99 Texas 172, 88 S. W. 542, 89 S. W. 552. The State contends through its fourth point of error that the lower courts erred in holding that the proceedings had in 1827-1830 with the former government vested the Ballis with either title or the right to secure title of the character protected by the treaty of Guadalupe Hidalgo.

This contention is primarily grounded upon the fact that the land in suit is situated within ten leagues of the sea and under the fourth

article of the General Law of Colonization of the Republic of Mexico of 1824, which requires the previous approbation of the supreme executive power. The State relies upon the cases of Edwards v. Davis, 3 Texas 321; Republic v. Thorn, 3 Texas 499, and subsequent cases following, and League v. Egery, 24 How. 264 16 L. Ed. 655 and Foote v. Egery, 24 How. 267, 16 L. Ed. 656, and Christie v. Pridgeon, 71 U. S. 196 204, 18 L. Ed. 322. It is true that no final certificate of title from the governor of Tamaulipas was produced on the trial. Whether or not it ever issued in a question of fact.

The respondents rely upon the following facts to show that a final certificate was issued: that on January 19, 1830, Juan Jose Balli conveyed to Santiago Morales his original one-half of Padre Island, together with one-half league more than he had acquired by inheritance from his uncle, the priest Nicolas Balli.

On March 20, 1830, Santiago Morales appeared before the first judge of the ayuntamiento of Matamoros and pleaded that he had been advised by “two gentlemen from Victoria” that the grant from the state would not be given effect and that he did not wish to involve his money during the one or two years that might be required to clear the title, therefore he desired that Balli should return to him the seven hundred pesos he had paid as purchase money, with the understanding that when Balli had cleared his title the sale to the Morales should, if he so wished, be given effect.

Balli in effect answered that he was “not in accord with the two gentlemen from Victoria,” but rather than litigate with Morales he would return the purchase money if Morales desired. February 7, 1842, Morales mortgaged to Dolores Garcia the south half of his lands on Padre Island acquired from Juan Jose Balli. On July 17, 1842, he conveyed the north one-half of his said lands to Jose Maria Tovar.

On September 4, 1848, Morales, acknowledging nonpayment of the debt secured by the Garcia mortgage and in compliance with its terms, conveyed the south half of his said lands to Jesus Garcia, son and heir of Dolores, the deceased mortgagee. It may be inferred from these proceedings that Balli cleared his title to the satisfaction of Morales. This would have been done by taking out the final certificate of title for which he was judicially authorized to apply.

In the recommendation made by Miller and Bourland it is said: “They (Nicolas and Juan Jose Balli) having obtained a title from the proper authorities, and resided upon the land peaceably for a number of years, we recommend for confirmation 11)4 leagues only to the heirs or assigns of the original grantees.” Final certificates of title were frequently issued by the state authorities of Tamaulipas apart from the expediente of proceedings for the grant. State v. Bustamente, 47 Texas 320; Haynes v. State, 100 Texas 426, 100 S. W. 912; Kenedy Pasture Co. v. State, 111 Texas 200, 231 S. W. 683.

The state archives of Tamaulipas were destroyed by the French troops in Victoria in 1864. Haynes v. State, 100 Texas 426, 100 S. W. 912; Kenedy Pasture Company v. State, 111 Texas 200, 231 S. W. 683; and State v. Sais, 47 Texas 307. It has been held in this state that where proceedings for a grant have progressed to a point where the grantee is entitled to demand it, mere issuance of final certificate by the governor is a ministerial act. State v. Bustamente, 47 Texas 320; State v. Gallardo, 106 Texas 274, 166 S. W. 369; Corrigan v. The State, 42 Texas Civ. App., 171 94 S. W. 95; State v. Corrigan, 94 S.

W. 101; Haynes v. The State, 100 Texas 426, 100 S. W. 912. These same authorities hold that a title good against the Mexican government on December 19, 1836,, is good also against the State of Texas, even though final certificate of title has not issued and even though the proceedings were otherwise incomplete. It has also been held, under facts analogous to those proved in this case, that previous assent of the Mexican supreme executive will, if needed, be presumed.

In the Sais case it is said: “ * * it is to that extent an imperfect title to the land claimed (It is recited no act of juridical possession and contained no final concession or certificate of title from the governor of the state.) It shows, however, the adjudicated right of the applicant, and the setting apart and survey of the land, with defined boundaries, and its locality and extent, and that the money at which it was valued under the law (¡¡>30) was paid into the treasury of the State, with the regularity and legality of the proceedings, and direction for their completion, by the attorney of the treasury, sanctioned by the order of the Governor. * * * “* * * So far as it appears from the record in this case, the right of the grantee, as a party entitled to land, had been properly established, and the land had been selected and surveyed, with defined boundaries, previous to the 19th of December, 1836, and it was, therefore, such a right as could, and reasonably would, have been protected, had there not been a change of government.” In the Bustamente case, 47 Texas 320, and companion cases, this court held that “final concessions” or certificates of title issued by the governor of Tamaulipas February 2, 1848, were illegal and void and each of eight claimants so situated was refused confirmation in suits brought by the owners under the Act of August 15, 1870.

Suits brought later by the state to recover these same grants were decided by this court in Haynes v. State, 100 Texas 426, 100 S. W. 912. The court say: “The learned judge who wrote the exhaustive opinion of the Court of Civil Appeals said, in substance, that the facts found by that court would justify the presumption that a grant had been made by the Governor of Tamaulipas, if it were not shown by the testimony that the Governor of Tamaulipas had issued a final title to Zapata, which was void, because he had not the power to do so at the time that it was granted.

The issuing of the final title, without authority, could not affect the right which existed, and upon which the unauthorized act was based. (State v. Bustamente, 47 Texas 320). Therefore, discarding the title issued by Canales, Governor of Tamaulipas, in the year 1848, we have the facts still existing which, if sufficient to justify a presumption of a grant, must be sufficient to establish a right to the grant.

If, therefore, the evidence introduced upon the trial shows that Antonio Zapata was, on the 19th day of December, 1836, entitled to have a grant issued, the State ought not to recover the land in controversy, because such a title would be protected by the treaty of Guadalupe Hidalgo.” And in the Gallardo case, 106 Texas 274, 166 S. W. 369, the court say: “* * * we do not deem it necessary to re-open the question urged by the able counsel for the State as to whether property rights within the territory over which the sovereignty of Texas was extended, were within the protection of the treaty of Guadalupe Hidalgo.

That in relation to such rights that treaty has the force of law in Texas, has been repeatedly affirmed by this court. State v. Sais, 47 Texas 307; Clark v. Hills, 67 Texas 141; Haynes v. State, 100 Texas 426, 100 S. W. 912.

We furthermore regard it as established in this State under these decisions and others and in the light of the State’s legislation, that a title to lands within the original Mexican State of Tamaulipas and the present boundaries of Texas that was good as against the Mexican government on December 19, 1836, the date of the Act of the Congress of the Republic defining the boundaries of Texas so as to include that territory, is within the protection of the treaty and entitled to recognition in the courts.” With respect to the presumption of the prior approbation of the supreme Mexican government, it was further said: “ * * * the State urges the invalidity of that sale under the Mexican law upon the ground, it is said, of the want of any authority in the Governor of Tamaulipas to order it in the absence of affirmative evidence of a previous approval by the supreme government.

This contention is based upon provisions of the law of October 3, 1836, enacted or decreed by the Mexican assembly and certain regulations decreed by the President ad interim in its connection, particularly Regulation No. 13, to this effect: ‘Until the attributes of the government and departmental boards in what relates to the Treasury, are declared by law (which was not done until April 7, 1857), said Governors shall make no sale of lands (fincas) or property (bienes) nor contracts nor extraordinary expenses for said departments, without the previous approval of the supreme government.’ ” The court continues: “In ordering the sale in question, the governor of Tamaulipas acted in his official capacity and under purported authority.

His act was but the exercise of a power, not denied to him but recognized by the regulation quoted. The previous approval of the Supreme government was necessary, it is- true, to its exercise under the provisions of the regulation. But the question that here arises is, should it not be presumed after this long lapse of years, in the light of' our knowledge of the conditions that then obtained in that country, that such previous approval of the sale by the supreme government was given?

We think so, under established principles in relation of the acts of public officers in their official capacity under purported authority, as to which legitimate rather than usurped authority is presumed. United States v. Peralta, 19 How. 343, 15 L. Ed., 678; Strother v. Lucas, 12 Pet., 410 9 L. Ed., 1137; Texas Mex. Ry. Co. v. Jarvis, 69 Texas, 541, 7 S. W., 210.” The same ruling was made in the case of Barrow v. Boyles, 122 Texas 416, 61 S. W. (2d) 783.

The second reason assigned by the State why no. title or right to title was vested in the Ballis under the Tamaulipas proceedings is because it is claimed that, the governing council of Tamaulipas did not approve the Ballis’ application for. a. grant. It is true that in the expediente the council (consejo) indicated that it was dissatisfied with what had been done in the instructed dispatch because of some of the contradictions contained in it.

However, the council stated: “It may, if it is agreeable to your Excellency, permit the remaining requirements of the law to be taken until this matter is concluded.” Therefore,. the very document which the State claims to be a disapproval indicates that it was the attitude of the council that the interested parties, if agreeable to the governor,: might comply with all the requirements of the law as pointed out by the attorney general (fiscal) and that the matter might be concluded. The State further contends that the proceedings as disclosed by the expediente were not had pursuant to

Article 26 of Decree No. 42 of the Tamaulipas Colonization Statute of date December 15, 1826, in that the Ballis did not file their petition with the proper authorities within the term of forty days from the date of the publication of the law and that the island contained more land than was allowed to be granted under said laws.

Section 26 of the Colonization Law of Tamaulipas of December 15, 1826, provides: “Designators of land which in time of the ancient government did not perfect their adjudication shall present themselves to the respective authorities to continue its course according to the state thereof, effecting the same within the term of forty days from the date of the publication of this law, and on the contrary said lands shall be considered open to designation as vacant.” The respondents contend that proof to the contrary appears from the face of the Diego de Leon’s petition to the governor of December 11, 1827, by which the expediente as archived was begun.

Said petition shows that he had theretofore presented to the governor an incomplete testimonio of the judicial act and proceedings of a grant to Balli of “the Island of Santiago that terminates at the Corpus Christi Bar and consisting of 19 leagues of land”; that he had searched the achives at Reynosa for the protocol of such proceedings, which had not been found, from which he inferred that it may have been forwarded to the seat of government about the year 1800 when the Count of Sierra Gorda was governor; that he solicited a new copy of the form of the proceedings in the event that the expediente was in the archives of Victoria and if not, that his petition be considered a new denuncio of the same island.

The Miller and Bourland commission, which sat at Brownsville in 1850, found: (

a) that Nicolas Grisante and Jose Maria Tovar applied for 11^2 leagues of pasture land called Padre Island, originally granted by the Spanish government to one Nicolas Balli, and confirmed to him and his nephew Juan Jose Balli by the Mexican authorities; (

b) that witnesses proved the occupation of said tract of land by the said original grantee and his nephew for the last fifty years. Under this record it cannot be doubted that the Padre Nicolas Balli was a designator of the land of Padre Island “in the time of the ancient government” nor that he presented himself to the respective authority to continue its course according to the Tamaulipas law.

It is true that the date of the colonization law being December 15, 1826, and Diego de Leon’s petition December 11, 1827, the period between these times is more than forty days, but, as has been recognized by this court, the forty-day period did not run from the date of the law, but from the date of its publication. In Houston v.

Robertson, 2 Texas 1, loc. cit. 28, it is said: “But under the former governments, it was an undoubted principle that the laws were of no binding obligation until after .they were duly promulgated. * * * These decrees were transmitted to the inferior authorities, and by them published in their respective jurisdictions.” Quoting again from Mr. Justice Bradley in Gonzales v. Ross, 120 U. S. 605, 30 L. Ed. 809, 7 Sup.

Ct. 705, 710. “But the laws of the Mexican states did not take effect in any part of the country, until they were promulgated there; and as Dolores was situated in the present county of Kinney, about 200 miles from Monclova, and probably much more than that as the roads then ran, and as the means of communication, in that region at that time were difficult and dilatory, it is not probable that the Act of March 26, was promulgated at Dolores prior to the 18th of April.” The expediente before us shows that the interval between the enactment of a decree at Victoria and its promulgation at Matamoros, according to the same reasoning as quoted above, would be at least several weeks.

The fact that de Leon’s petition was dated December 11, 1827, is not indicative of the fact that on the same date Balli presented himself to the Tamaulipas authorities in order to perfect his title. As a matter of fact, the petition attests that this was. done prior to that date.

In any event, whether or not the designator of land in the time of the ancient government presented himself before the proper authorities timely was for the officials of the State of Tamaulipas to decide and where, as here, the governor, on January 2, 1828, ordered a continuance of the proceedings, his action in so doing is conclusive after more than a hundred years. Hardiman v. Herbert, 11 Texas 656.

The State also contends that under the colonization law of the State of Tamaulipas an adjudication could not be made to an amount of more than 125,000,000 square varas (5 leagues) and that the grant is therefore void in this case.

Article 25 of the Tamaulipas colonization law, among other things, limited an adjudication to the amount of 125,000,000 square varas. According to the official survey of the island the grant made by the state to the two Ballis was 11.15 leagues, amounting to an excess of 1.15 leagues.

Section 31 of the colonization law provided that “more than two grants cannot be adjudicated to one individual and this should the incz*eased number of his herd or flocks demand it of necessity. For any violation in these cases the State shall recover the ownership thereof.” Construing these articles together it appears, therefore, that the officials of the state had the power to make two grants of five leagues each to one individual or, in the case of two individuals, twenty leagues could be legally granted. It is definite from the testimonio that Nicolas Balli asserted a claim under the ancient government. The law provided by Arti

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