San Antonio v. Nathaniel Lewis; San Antonio v. Bryan Callaghan, 15 Tex. 388

Lipscomb, J. These two suits were argued together, both presenting precisely the same points, and the statement of the facts in the two cases being the same. The prominent facts are, that the city of San Antonio, as originally laid out, had two plazas, or squares, dedicated to the use of the public ; one a main plaza and the other a military plaza.

The land, the subject of the controversy, it is admitted was originally a part of the main square, or public plaza, and was so constantly used and enjoyed by the people, front the time of the foundation of the city to the years 1808 and 1809, until the proceedings were had under which the defendants claim title. These proceedings show that at the last date the public authorities cut off a portion of the north side of the main plaza, so as to reduce it from an oblong to nearly a square, and caused the portion so cut off to be sold for nine hundred and ninety dollars, to Juan Manuel Zambrano.

The terms of the approval of the decree of sale to Zambrano, are expressed as follows, i. e.: " Provided he offers to build it up immediately, let the proper “ documents be made out by the proper tribunal and possession “ given of it, giving the interested party a moderate time to “ pay the total amount; notifying him that in not complying “ with the offer, he will lose the ownership of what he bought.” Signed, Salcedo. The documents prove the payment of five hundred dollars, and a short credit for the balance, four hundred and ninety dollars.

There was no improvement made until 1813, when Zambrano had a quantity of rock and sand put on the ground for building a house ; these materials were shortly after removed by the soldiers, for the purpose of barricading the streets ; no further effort was made to build upon the ground by Zambrano, who was a priest, and died in 1824. In 1837 Van Mess obtained letters of administration on the estate of Zambrano, and on the 30th September, 1839, a general order was made to sell so much of the estate inventoried as should be necessary to pay the debts. Mo notice was given to present debts until 1839.

There was a deed given in evidence, made by the brother of Zambrano, and one of his heirs, not for the grant in controversy, but for other land, showing that the heir recognized the old boundaries of the plaza as still existing in 1835, and the evidence all conduced to prove that the possession of the inhabitants of the whole plaza, as originally laid out, continued uninterrupted until the defendants built upon the ground, Lewis late in August or early in September, 1847, and Callaghan about five months later. This suit was brought by the corporation to recover the possession and to abate the nuisance.

The defendants pleaded the different Acts of three, five and ten years, and a possession of forty years. But the evidence is clear, that the people of the city used it as a public square, without any interruption, until the use thereof was interrupted by the defendants. A jury being waived, judgment was awarded by the Court for the defendants, and the plaintiff appealed. The first question we propose discussing, is the right acquired by Zambrano, under the sale sanctioned by Governor Salcedo, in 1809. If Salcedo had no authority to sell a part of the commons that had been dedicated to the public use,.

Zambrano acquired no title under such illegal exercise of authority. This was one of the points discussed by this Court in the case of Lewis and others v. The City of San Antonio, (7 Tex. R. 288,) and this Court, following the Supreme Court of the United States in the case of New Orleans v.

The United States, (10 Peters. 734,) held that it was not competent for the local authorities to sell land so dedicated to public use, and we quote from the opinion of Judge McLean, in the case above cited, the following: “ This power was not exercised by the “ King of France, and the exercise of the power of the Spanish “ Governor, in the instance stated, was in violation of the laws “ of Spain, and equally against its usages. The land, having “ been dedicated to public use, was withdrawn from commerce,- “ and, so long as it continued to be thus used, could not be- “ come the property of any individual.

So careful was the “ King of Spain to guard against the alienation of property “ which had been dedicated to public use, that in a law all “ such conveyances are declared to be null and void f and we recognized the law to which the Judge referred to be L. 1, B. 7, Tit. 16, Novissema Recopolacion. From the evidence it appears that the enjoyment of the use by the public at large was never interrupted by the sale to Zambrano; he never built upon the ground, and consequently there was no interruption of the use, that could have called upon the town to assert its rights.

Had Zambrano gone into the use of the ground under Ms purchase, excluding others from the enjoyment, and been permitted so to have continued in the adverse possession for a long period of time, it is believed that such adverse possession would have matured into a ri^ht, to which the rights of the corporation would have had to yield. The possession of the use does not appear ever to have been interrupted until the possession taken by the defendants.

The hauling of stone upon the ground by Zambrano in 1813 could not be regarded as an interruption, unless it had been shown that the enjoyment of the use of the public square or common was thereby impeded or encroached upon.

But suppose the continuity of the possession had been then broken, and the date of the use would not go back beyond that time, and commenced with the removal of the obstructions that had been placed on the ground, we would then find that it had been continued for eleven years during the life of Zambrano, and continued on until interrupted by the defendants in this suit, it would give about thirty-four years uninterrupted possession of the use, which would give more than sufficient time to establish a use.

The three years possession could not bar the plaintiffs right of action, because they do not show title derived from the sovereignty of the country, and five years had not run when the suit was commenced. The judgment is reversed and this Court proceeds to render such judgment as the Court below should have rendered. Reversed and re-formed.