Galveston County v. B. S. Tankersley et al., 39 Tex. 651

Ogden, P. J. This suit was instituted by the county of Galveston against several defendants in trespass to-try title to certain land in Hood' county. Galveston county claims the land as a part of one of her school leagues, patented to her in 1849. The defendants-claim the land by virtue of their pre-emption rights. They also claim, that the land in controversy is not covered by plaintiff’s patent. There is, however, a preliminary question presented by the defendants’ plea in abatement which requires notice in this opinion.

This suit was brought by Galveston county in 1867, and, on the adoption of our present Constitution, the defendants interposed a plea in abatement, alleging that since the institution of this suit, and since the filing of their answer, the title to the land sued for and claimed by plaintiff had passed out of Galveston county and become vested in the State of Texas by the new Constitution. We do not consider that it was the purpose and intent of the framers of the Constitution to cancel all the solemn contracts made with the several counties in regard to the school land.

But we do not hesitate to say, that if such was the purpose and intention of the convention, still they had no power or authority to do so. These grants were solemn acts of a contract made with the several counties, and this contract with Galveston county was duly executed years before the adoption of the Constitution. The State had parted with the title to a body corporate, capable of receiving and holding title to land, and she has not the power or authority, under the Constitution of the United States, to recall her grants or violate her executed contracts at pleasure. (Fletcher v.

Peck, 6 Cranch, 87; Trustees of Dartmouth College v. Woodward, 4 Wheaton, 570.) In the latter case the court says: “A contract is a compact between two or more persons. * * A grant, in its own nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert it.” In the same case the court says: “It may also be admitted that corporations for mere public government, such as towns, cities and counties, may in many respects be subject to legislative control.

But it will hardly be contended that, in respect to such corpprations, the legislative power is so transcendental that it may, at its will, take away the private property of the corporation, or change the use of its private funds.” We think the Supreme Court of the United States has settled the question of the power in the State to violate a contract or recall a grant. But we do not interpret

Article 9 of the Constitution as intending to annul its executed grants. There were many counties that had not had patents issued, and that act might prevent the further issuance of patents; besides the grants were made for school purposes, and the Legislature might very properly control the schools and the school fund, at least so far as to insure its proper application to the purposes for which the land was granted.

We think Galveston county had a right to prosecute her suit to final judgment, and, in case she obtained a judgment, the right to hold the land in her own name for the purposes for which it was granted. The other only question which requires notice here is in regard to the boundary. Appellant admits that the appellees have a good title for the lands occupied by them, unless they are on the Galveston county league ; and appellees virtually admit that if they are on the Galveston league, then they have no right to recover.

There is no dispute about any portion of the boundary, excepting on the northeast end of the Galveston county survey, which fronts on the Brazos river. There seems to be a conflict in the calls for this line as set out in the patent, since it calls for the meanders of the river and also for courses and distances, and these do not correspond with each other.

The calls in the patent for the northeast boundary of the survey are as follows: beginning at a designated point and running thence up the river with its meanders north 60° east 850 varas, south 43° east 1700 varas, north 57° east 1150 varas, north 15° east 1720 varas, north 41° west 2100 varas, north 31° west 1140 varas, to the northeast corner at the mouth of a creek.

Row it is apparent from the evidence and admissions of the parties, that if the river be meandered for the northeast boundary of the survey, then the calls for the courses and distances to form the same line must be abandoned; and if the meanders of the river be abandoned, and the courses and distances be followed, then there will be remaining between the northeast boundary of the Galveston county league and the river several small tracts of land, on which the appellees have settled.

There can be no doubt that the locator intended to include all the meanders of the river from the southeast to the northeast corners of the survey, both of which extended to the river. The intent of the locator and surveyor may also be gathered from the form of the survey, which is the legal form for surveys fronting on navigable streams. It is, however, very evident that the surveyor never run this line, since, if he had' not intended to make the survey follow the river, he would have run a straight line from one corner to the other.

There can be no object for so many angles unless it was upon the supposition that they would follow the meanders of the river. But the lines were never run, for no survey or’s marks can be found on the designated lines; besides, if they had been run, they would have been found to cross the river in more than one place, and leave small tracts of land along the river, surrounded by the river and the Galveston county survey. These facts show conclusively that no line was run as called for by the courses and distances, while the patent calls for the meanders of the river.

What, then, is the rule for determining the boundary ? The doctrine that wherever there is a conflict in the calls, or when the true line is uncertain, natural objects, such as rivers or mountains, will control calls for course and distance, has become too well settled to be questioned now. In the cases of Urquhart v. Burleson, 6 Texas, 503; Robertson v. Mason, 26 Texas, 248; and Booth v. Strippleman, 26 Texas, 441, this question was reviewed in the light of all the authorities and settled beyond controversy; and in the case of Anderson v.

Stamp, 19 Texas, 460, it is said the object to arrive at is the intent of the grantor. We think the certain natural boundary of the river called for in this patent must control the evidently unknown, conflicting and absurd calls for course and distance. It was beyond question the - intention of the grantor and grantee to have the patent cover the land within the bend of the river, and to have the boundary defined by that natural and certain object; and if the survey contains a few more acres of land than the patent calls for, it will not vitiate the grant nor authorize trespassers within its known boundary.

We think the verdict of the jury contrary to the law and the evidence, and that the court erred in overruling the motion for a new trial. The judgment of the District.Court is therefore reversed anct the cause remanded. Reversed and remanded.