This case is before us on motion for rehearing. After a careful *Page 253 consideration of the motion I have decided to withdraw my original dissenting opinion and substitute therefor the following:
This case squarely presents the question whether respondents are entitled to receive 30 1/2 leagues of land from the State, although the record shows that the surveyor's field notes regarding this land specified definitely 11.15 leagues; that the Ballis paid for only 11.15 leagues; that those who held under the Balli claim asked the State to confirm 11 1/2 leagues; and that the State in order to carry out its obligations to such claimants confirmed 11 1/2 leagues.
I think the majority opinion of this Court errs in holding that the State is not entitled to recover (1) the land on Padre Island in excess of the 11 1/2 leagues of land, and (2) the land formed by accretion to Padre Island since the Ballis acquired their claim from the Mexican Government. I think the holding on the first point is clearly against the Act of 1852 and the records under which respondents claim this land. The holding on the second point is clearly contrary to the decisions and against the public policy of this State relating to accretion to islands.
At the outset I desire to make the following supplemental statement of facts: It appears that Nicolas Balli had some negotiations regarding land with the former Spanish colony of Nuevo Santander, which became the State of Tamaulipas under the organization of the Mexican Government in 1824. The general colonization law of the State of Tamaulipas, of December 15, 1826 (Sayles' Early Laws, Article 89) provided the method of obtaining title to land applied for under the former government. On December 11, 1827, Nicolas Balli, acting through his attorney in fact, presented to the Governor of Tamaulipas his petition for a complete testimonio of the earlier Spanish proceedings, or, in its absence, for a new title from the State of Tamaulipas. The land applied for is described in the petition as follows:
"For the land of the Island of Santiago that terminates at the Corpus Christi Bar and consists of 19 1/2 sitios."
No proceedings by Nicolas Balli under the Spanish Government were found, and the application was considered as a new application by Nicolas and his nephew Juan Jose, jointly, under the law of Tamaulipas. The Governor on January 2, 1828, embodied in his decree the statement that neither the original proceedings nor the instructive dispatch had been found in the *Page 254 archives of the government, and that he had determined that the Alcalde of Matamoros, after summoning the surveyor named by the Government, the Citizen Domingo de la Fuente, should instruct him to proceed with the visual inspection and survey of the lands of the Island of Santiago, and that other legal steps should be taken as provided for by law. Unquestionably respondents' claim for this land must rest on de la Fuente's survey.
On March 5, 1828, the judge in submitting Official Surveyor Domingo de la Fuente's report on said land stated that such land as shown by such report "consists of Eleven Leagues (sitios) for large stock and six caballerias of land of which said whole pasture consists, * *."
That not much of the island was suitable for pasturage, and that it consisted largely of sand dunes, with salty bays in its shore, is amply supported by the reports made to the Mexican Government relating to the island.
This brings us to the report made by de la Fuente showing the method and manner of his survey of this land and the field notes of such survey made by him. He divided his survey into four Figures. The field notes of Figure One are copied below in order to show the method used by him. The following is quoted from his report:
"Demonstration. "A.A.A.A. F.F.F.F. "The Figure and Extension of the island from North to South over A.B., First Figure.
"The cord was streached one hundred and ten times, and it entered the shore, from East to West over B.Y. the cord was stretched forty times and terminated on the border of the Laguna, and a triangle was formed that was one hundred and ten cordeladas of longitude and forty of latitude whose surface is five counts and five hundred thousand square varas which is what composes the Riccon de Corpus Christi. From north to south following the edge of the shore over B.C. the cord was stretched three hundred times and reached the site of Carnestolendas, from East to West over C.H. the cord was stretched fifty four times and a quadrangle was formed of three hundred cordeladas of longitude and forty of latitude whose square area is composed of forty counts and five hundred thousand varas, and because B.Y. is of forty cordeladas and C.H. of fifty four, a triangle is formed that also has three *Page 255 hundred cordeladas of longitude and fourteen of latitude which is the difference between forty and fifty four, whose square area is five counts and two hundred fifty thousand varas; from C. to D, the cord was stretched two hundred and twenty five times, and it reached to Los Laurelitos, from East to West over D.G. the cord was stretched fifty nine times and a quadrangle was formed that has two hundred and twenty five cordeladas of longitude and fifty four of latitude, which compose ten counts and six hundred eighty seven thousand five hundred square varas, and because C.H. is of fifty four and D.G. of fifty nine a triangle is formed of two hundred and twenty five cordeladas of longitude, and five of latitude, on account of the difference between fifty four and fifty nine, which has a surface of one count and three hundred fifty six thousand two hundred and fifty square varas; over D.E. the cord was stretched one hundred and seventy five times, and it reached to San Juan de las Cruicitas; from East to West over E.F. the cord was stretched forty six times and another quadrangle was formed that has one hundred seventy five cordeladas of longitude and forty six of latitude, whose surface is of ten counts and two hundred fifty thousand square varas, and since E.F. is of forty six and D.G. of fifty nine there was formed a triangle that has one hundred and seventy five cordeladas of longitude and thirteen of latitude whose square area is two counts and eight hundred and forty three thousand seven hundred and fifty varas; over E.A. the cord was stretched two hundred twenty five times and it reachedto the Buried Stone of El Palmarito; from East to West over A.T. the cord was stretched thirty three times and a quadrangle was formed that has a surface of eighteen counts and five hundred and sixty two thousand, five hundred square varas, and a triangle that has of surface three counts and six hundred fifty six thousand two hundred and fifty varas, and the first figure was concluded. All its divisions aggregate ninety eight counts and six hundred and six thousand two hundred fifty varas." (Emphasis mine.)
He continued his survey on Figures Two, Three, and Four along the method used in his survey of Figure One. In those Figures he calls for certain definite points, as follows: "The pass of San Augustin," "The Willows of San Jose," "El Devisadero," Rancho de Buena Vista," "Boquilla de Loma Alta," and "Brazo de Santiago." He concludes his field notes by saying that "the cord was stretched thirty times and it reached to the Brazo de Santiago where the survey terminated in an angle." He sums up the result of his survey in the following language:
"The sum total amounts to two hundred and seventy eight *Page 256 counts and seven hundred eighty one thousand two hundred fifty square varas. Which is eleven sitios for large stock, and six caballerias."
The terms used by de la Fuente and others in the reports relating to this survey have been translated into English, and they have been interpreted and compared with more modern terms used by present day surveyors. For instance, a sitio is equivalent to a league of land; a caballeria is equivalent to a fractional part of a league; and a cord is equivalent to 50 varas. In other words, eleven sitios and six caballerias means 11.15 leagues of land.
De la Fuente attached to his field notes and report a map showing in detail the manner and method pursued by him in making such survey, as well as the distances and prominent points used to make such survey. It is worthy of notice that the map made by de la Fuente embracing the land claimed by the Ballis does not show the shore lines of Laguna Madre, and in making the calls contained in his field notes he projected from the shore line on the Gulf side, and he mentions the border of the Laguna only one time. It is undisputed that the Mexican authorities distrusted the correctness of the report made by de la Fuente, and commanded that the land be reinspected.
The colonization law of the State of Tamaulipas fixed the price of dry grazing land at $30 per sitio and that with running water at a greater price to be fixed by "two competent persons, chosen by the executive and the settler." 1 Gammel's Laws, 457; State v. De Leon, 64 Tex. 553. The appraisers appointed, Manuel Garza by the Governor and Antonio Marcia Casas by the Ballis, fixed the price of land on the island at $40 per sitio or league. The purchase price paid, $446, was for 11.15 leagues at $40 per league.
On March 21, 1829, the Treasurer acknowledged the payment for this land in the following language:
"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) Sitios for large cattle (ganado mayor) and six (6) caballerias of land denounced by the Citizens Nicolas and Juan Jose Balli in the jurisdiction of the town of Matamoros, * *."
The judge in certifying to the juridical possession of this land stated: *Page 257
"I proceeded to place in possession of the eleven (11) sitios for large cattle and six (6) caballerias, of which the Island of Corpus Christi is composed; being comprehended within it, the Island of this name."
There is no evidence in the record to show a grant of this land from the Spanish Government. It is undisputed that if the Ballis made application, as authorized by the judge's decree, to the Governor of Tamaulipas for the issuance of the "legal certificate of title" or "final concession" or "grant" from the Mexican Government, and if the Governor acted on said application and issued such certificate or grant, such certificate or grant was not introduced in evidence on the trial of this case. This record does not show what action, if any, the Governor took on the application for the "final certificate" or "grant" based upon the Treasurer's receipt reciting the payment of $446.00 in payment of eleven sitios and six caballerias of land, denounced by the Ballis.
The land surveyed in 1828 was variously recited to be situated on the "Island of Corpus Christi," the "Island of Brazos de Santiago," and the "Island of Santiago." The name "Padre Island" did not appear in any of the original proceedings. Its first appearance was in deeds made many years later. In 1850 we find Grisanti and Tobar referring to a certain 11 1/2 leagues of pasture land as being called "Padre Island."
From the reports made at the time of the survey by de la Fuente the length of Padre Island and the acreage embraced therein were undoubtedly about the same as when commissioners Bourland and Miller made their report in 1851. De la Fuente began his survey at the place of "Corpus Christi" and concluded it at the place of "Brazo de Santiago." It reasonably appears that de la Fuente used the Gulf shore line as the base line for his survey and ran his right-angle transverses from such shore line. Many objects are called for in his survey, and they are described on the map attached thereto and made a part of the record. The various calls and distances and how the survey was made are described in much detail. This suit is based upon the survey made by Boyles in 1941. The survey shows that the island is 112 1/4 miles long and contains 135,213 acres. Boyles testified that the purpose of his survey was to cover the entire island, in order to ascertain its area. He further testified that he did not undertake to follow the footsteps of de la Fuente or fix the lines of de la Fuente's survey. He made a map of the island showing his survey and the acreage contained therein, and on said map *Page 258 it was also shown in comparison the acreage as contained in de la Fuente's survey. Boyles further testified that at the time he made his survey he saw only a few head of stock on the island. It also appears from the record that neither the State nor respondents undertook to locate and establish the lines surveyed by de la Fuente. The amount of land contained in Padre Island as reported by Bourland and Miller is substantially the same as that reported by Boyles. From this record it is not convincingly shown that the lines surveyed by de la Fuente cannot now be located and established.
Respondents contend that the juridical possession covered the entire island. Unquestionably the claim of the Ballis to Padre Island, or to the 11.15 leagues denounced and paid for by them, must primarily rest on their dealings and transactions with the Mexican authorities of Tamaulipas and the authorities at Victoria during the years 1827-1829. De la Fuente's survey described 11.15 leagues, and they paid for only 11.15 leagues of land. It is quite plain that when we consider the character of the land at the time the claim was filed and the application made therefor, and the reports made thereon, the only land the Ballis were interested in or desired to pay for was the land suitable for pasturage. They were not interested in the sand dunes and salty bays, as they were unfit at that time for any purpose and were of no value; and it is quite obvious from his report that de la Fuente did not include them in his survey. There is no evidence in this record tending to show that the Mexican authorities intended to grant the entire Padre Island to the Ballis, because the survey showed only 11.15 leagues and the payment received was for only that amount of land. The survey and the Treasurer's receipt describe it as 11.15 leagues, and the judge in certifying to the juridical possession of this land stated that he placed the purchasers in possession of the "eleven sitios for large cattle and six caballerias." It is not shown that the Mexican Government ever issued a final grant to this land, and it is undisputed that the State never issued a patent therefor. The facts conclusively show the amount of land surveyed and paid for, and that neither the Mexican Government nor the State ever granted title to the entire island. When the State confirmed the title to 11 1/2 leagues it discharged its full duty under the Treaty of Guadalupe-Hidalgo. There is nothing in this record to show that the judge intended to give possession of the land not embraced within de la Fuente's survey. If he had done so, his act would not have been valid or binding. Pinkerton v. Ledoux,129 U.S. 346, 9 S. Ct. 399, 32 L. Ed. 706; Ely's Admr. v. The United States, 171 U.S. 220, 18 S. Ct. 840, 43 L. Ed. 142; *Page 259 Camou v. The United States, 171 U.S. 277, 18 S. Ct. 855, 43 L. Ed. 163.
The calls contained in the de la Fuente survey control the intention of the government making the grant and the grantee in accepting it. That survey called for a definite amount of land, and the presumption is that the government did not intend to grant more. Welder v. State, 196 S.W. 868 (writ refused); 7 Tex. Jur., p. 123, sec. 5. And if the boundary lines of such survey made by de la Fuente can be located and fixed, the holders of the Balli claim are entitled to the land described in such survey. 7 Tex. Jur., p. 125, sec. 6 pp. 140-146, secs. 22, 23. It follows that whatever right to the land on Padre Island not granted to the Ballis remained in the State of Tamaulipas, passed to the State of Texas, and is now owned by the State, unless such right to this land was especially relinquished to the holders of the Balli claim by the Act of 1852.
The State contends that respondents are not entitled to claim and recover any part of Padre Island. This contention rests upon Section 8 of Article 14 of the Constitution of 1876 and Section 2 of the Confirmation Act of 1852, in which the State relinquished to the claimants of the Balli title 11 1/2 leagues called "Padre Island, Cameron County," provided that such land should be surveyed and a return of the field notes thereof made to the General Land Office, and that the Commissioner was authorized and required to have the same platted on the maps of his office and issue patents thereof. It is undisputed that the claimants of this land did not comply with either the Act of 1852 or with Section 8 of Article 14 of the Constitution of 1876.
The State's further contention is that the claimants of this land are forever barred from asserting a claim to the land because they failed to comply with the provisions of the Constitution. Respondents, on the other hand, assert that their title to the entire island was covered by the grant or proceedings which emanated from the Spanish and Mexican governments, as well as by the Act of Confirmation of 1852, and that it was unnecessary for the claimants of the land at that time to comply with the provisions of the Constitution. It is quite plain that the Legislature by the Act of 1852 intended to confirm the application of Grisanti and Tobar for 11 1/2 leagues of land, based upon the survey made by de la Fuente. The map and field notes filed by him are definite and describe in detail the 11.15 leagues of land. The courts of this State have held that grants of land which emanated from the Government of Spain or that of *Page 260 Mexico, and which had been previously surveyed with definitely described boundaries, and which grants had been recognized and validated by the State, need not be resurveyed. De la Fuente's field notes and map describe the boundaries of the 11.15 leagues surveyed by him. In my opinion they are sufficiently definite to enable a surveyor to locate and fix the lines surveyed by de la Fuente, and carry out the intention of the Legislature to confirm 11 1/2 leagues of land based on such survey. See Corrigan v. State, 42 Texas Civ. App. 171[42 Tex. Civ. App. 171],94 S.W. 95; State v. Corrigan, Texas Sup., 94 S.W. 101; Sullivan v. State, 41 Texas Civ. App. 89[41 Tex. Civ. App. 89], 95 S.W. 645; Sullivan v. Texas, 207 U.S. 416, 28 S. Ct. 215, 52 L. Ed. 274; Clark v. Hills, 67 Tex. 141, 2 S.W. 356. I agree with the majority opinion in overruling this contention of the State.
It is also contended that Padre Island could not have sold by the State of Tamaulipas to the Ballis because such sale would have violated the settled Mexican law, which expressly provided that the Mexican Government could not sell its land within ten leagues of the coast without approbation of the Supreme Executive Power of the National Government. See General Laws of Colonization of Mexico, No. 72, dated August 18, 1824 (1 Gammel's Laws, 97); Mexican Colonization Law of 1824, Article 4 (1 Gammel's Laws, 39.) And this is furthermore strengthened by the fact that not more than six leagues of grazing land were sold to any one person, as provided for by the laws of Mexico. See General Laws of Colonization of Mexico, No. 72, dated August 18, 1824 (1 Gammel's Laws, 98.)
The Court of Civil Appeals held that respondents' title to the entire Padre Island was protected under the Treaty of Guadalupe-Hidalgo. That court reviewed the laws and decisions relating to this question, and in support of its conclusion said:
"In Cavazos v. Trevino (1871-72), 35 Tex. 133, it was held that the approbation of the federal executive was unnecessary to the validity of a grant of land within the littoral leagues made by the Governor of Tamaulipas to a Mexican citizen."173 S.W.2d 522, 532.)
The foregoing case is the only one cited by the Court of Civil Appeals to sustain its decision, and that case was rendered by the "Reconstruction Court," and it has never been cited with approval by this Court. See Taylor v. Murphy, 50 Tex. 291; 1 Tex. Jur., xxxii. The provisions of the Tamaulipas laws regarding grants of land have been construed by this Court in the following cases: State v. Sais, 60 Tex. 87, and State v. DeLeon *Page 261 64 Tex. 553. These cases do not support the holding in the case of Cavazos v. Trevino, supra; cf. Wilcox v. Chambers, 26 Tex. 181. The burden rested on the Ballis to prove that the federal executive of Mexico approved their grant, Edwards v. Davis,3 Tex. 321; The Republic of Texas, v. Thorn, 3 Tex. 499; Goode v. McQueen's Heirs, 3 Tex. 241. The Ballis did not do this. The case of Smith v. Power, 23 Tex. 30, involved the title to a grant of four leagues that had been made by the State of Coahuila and Texas. In that opinion the Court said:
"No question is more authoritatively settled by the repeated decisions of this court, than that the consent of the federal executive of Mexico was essential to the validity of a grant of lands, of the character of the present, within the border and coast leagues."
The Court of Civil Appeals further held that if the title to this entire island was not protected under the Treaty of Guadalupe-Hidalgo, the Act of 1852 "cured all defects in the attempted grant of the island by the Tamaulipas authorities, declared the title to be in all things valid, and relinquished all claims of the State thereto." This conclusion of the Court of Civil Appeals rests on the assumption that the Mexican Government, based on the survey of de la Fuente, granted the entire Padre Island to the Ballis, and that the Act of 1852 relinquished the entire island to the claimants of the Balli claim.
The majority opinion, as I understand it, holds that the respondents are entitled to all of Padre Island, based upon the proceedings emanating from the Mexican Government and de la Fuente's survey, independent of the Act of 1852; and the case of Cavazos v. Trevino, supra, is cited in support of that holding. The conclusions of the majority must find support in the assumption that the proceedings had with the Mexican Government were sufficient to pass title to Padre Island and that de la Fuente's survey covered the entire island, and that when the Ballis bought and paid for only 11.15 leagues they acquired all of the island. I submit that de la Fuente did not undertake to survey the entire island, but undertook to survey only the pasture land, and that the Ballis acquired a claim from the Mexican Government for 11.15 leagues and paid for only 11.15 leagues. As further evidence, Grisanti and Tobar applied for a confirmation of 11 1/2 leagues of pasture land, and the Act of 1852 confirmed 11 1/2 leagues.
The law of November 17, 1833, limited Tamaulipas grants to "six leagues to persons breeding stock." State v. DeLeon, 64 Tex. 552. *Page 262 This was the maximum amount of land which the Mexican federal law allowed to be united in one individual, as his own property. 1 Gammel's Laws, 98. Article 25 of the Colonization Laws of Tamaulipas of 1826 authorized an adjudication of land to each individual of 120 million square varas, or an equivalent of five leagues. Article 31 provided that "more than two grants cannot be adjudicated to one individual, and this should the increased number of those he removes demand it of necessity. For any violation in these cases the state shall recover the ownership thereof." 1 Gammel's Laws, 458. The point is that only one adjudication was made to the two Ballis, as individuals. There is no evidence that a second grant was ever applied for on made to them or either of them. If we concede for argument's sake that two grants were made to each of the Ballis under either of the foregoing laws, those grants would not have covered all the land on Padre Island.
In 1830 Santiago Morales sued Juan Jose Balli in the Mexican courts for the purchase money paid by him to Balli for part of Padre Island, which Morales had bought from Balli. He based his right of recovery on the ground "that the denouncement of the Island of Corpus Christi will be invalid, because the claim has not taken the course required by law." On the strength of that statement Morales recovered his purchase money from Balli, thus showing that Balli held an uncertain title from the Mexican Government.
Since the foregoing contention that Padre Island could not have been sold by the State of Tamaulipas to the Ballis because such sale would have violated the settled Mexican law is closely related to the further contention made by the State that if the State is not entitled to recover title to the entire island it is entitled to recover all of the land in excess of the 11 1/2 leagues relinquished by the Act of 1852, the two contentions will be considered together. These contentions turn on the construction of the Act of 1852.
The State issued no patent to this land, and there is no evidence of a final grant having been issued by the Mexican government, and unless respondents are entitled to the land by virtue of their title papers obtained from the Mexican authorities, they must rest their claim thereto from the State by virtue of the Act of 1852.
The Court of Civil Appeals, after discussing the gross discrepancy of the acreage as shown in de la Fuente's survey and the estimate of Bourland and Miller, said: *Page 263
"The probability is that there was an excess and that there also were accretions. The writer is rather inclined to credit the Bourland and Miller estimate, especially in view of the fact that the de la Fuenta survey was apparently made for the purpose of estimating the amount of pasture land in the island, for which the State of Tamaulipas should be paid, rather than for the purpose of outlining the boundaries of the island which was entirely surrounded by water. De la Fuenta did not attempt to survey the Lagfuna Madre shore line. He completed his survey in eight days."
This was the condition of this title when Texas won her independence from Mexico in 1836. After Texas gained her independence a great deal of confusion arose as to the ownership of lands in Texas lying between the Nueces River and the Rio Grande, within which area Padre Island is located. There was grave doubt as to the legality of the grant under consideration, as well as other grants from the Mexican Government. The State of Texas undertook to carry out its obligations under the Treaty of Guadalupe-Hidalgo, which was ratified in 1848, and the Legislature in 1850 enacted a law authorizing the Governor to appoint two commissioners to investigate and report upon claimed Mexican titles to land between the Nueces River and the Rio Grande, and to pass upon same as to whether or not each should be confirmed. 3 Gammel's Laws, 582.
William H. Bourland and James R. Miller were duly appointed as such commissioners, and I quote the following from their written report and the recommendations made by them relating to Padre Island:
"No. 37. Nicolas Grisanti and Jose Maria Tobar apply for a 111/2 leagues of pasture land called `Padre Island' originallygranted by the Spanish Government to one Nicolas Balli, andsubsequently confirmed to him and his nephew Juan Jose Balli bythe Mexican Authorities. * * * We recommend for confirmation 111/2 leagues only, to the heirs or assigns of original grantee,for we feel confident that the island called `Padre Island'contained or embraced over 30 leagues of land. It is therefore tobe understood that we recommend only 11 1/2 leagues of said land.For testimony in this case see File No. 37, Cameron County." (Emphasis mine.)
Acting upon this recommendation, the Legislature of Texas passed the Act of February 10, 1852. The pertinent parts thereof read as follows: *Page 264
"Be it enacted by the Legislature of the State of Texas, That the State of Texas hereby relinquishes all her right and interest in the following described lands to the original grantee thereof, their heirs and legal assigns towit:
"Cameron County (12) Nicolas and Juan Jose Balli, eleven and a half leagues called `Padre Island.'"
Section (5) 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 Act of February 10, 1852 (3 Gammel's Laws, 941, 946) lists the Balli land under the head of "Cameron County." Prior to that time, in 1851, the Legislature had defined the boundaries of Cameron County. It is undisputed that Padre Island is about 110 miles in length, and that it lies within the present counties of Nueces, Kleberg, Kenedy, Willacy, and Cameron. It is also undisputed that Cameron County to that time did not embrace the whole of Padre Island.
The rule of strict construction in favor of the State regarding grants relating to islands is applicable to Mexican grants as well as to grants made by the State and the Republic of Texas. State v. Delesdenier, 7 Tex. 76; Galveston v. Menard, 23 Tex. 349; 34 Tex. Jur., p. 221, sec. 155. This Court has repeatedly announced the well-established rule that legislative grants of land must be strictly construed in favor of the State, and whatever is not unequivocally granted in clear and explicit terms is withheld. Any ambiguity in the terms of a statute must operate in favor of the State. Grayburg Oil Co. v. Giles, 143 Tex. 497,186 S.W.2d 680; Magnolia Petroleum Co. v. Walker, 125 Tex. 430,83 S.W.2d 929; Empire Gas Fuel Co. v. State of Texas,121 Tex. 138, 47 S.W.2d 265; Dolon v. Walker, 121 Tex. 361,49 S.W.2d 695; State v. Bradford, 121 Tex. 515,50 S.W.2d 1065; Lewis' Sutherland on Statutory Construction, Vol. 2, sec. 548; Coosaw Mining Co. v. State of South Carolina, 144 U.S. 550, 12 S. Ct. 689; 36 L. Ed. 537; Central Transportation Co. v. Pullman's Palace-Car Co., 139 U.S. 24, 11 S. Ct. 478, 35 L. Ed. 55; Shively v. Bowlby, 152 U.S. 1, 14 S. Ct. 548, 38 L. Ed. 331; 39 C.J., pp. 1122, 1123, sec. 664; 18 R.C.L., p. 1220.
The wisdom of the foregoing rule is clearly manifest, and the rule is particularly applicable to this case. *Page 265
In 1851 this Court in the case of State v. Delesdenier, supra, in discussing the public policy of the Republic of Texas with reference to the reservation of islands, said:
"By the act of January 20, 1840 (Hart. Dig., art. 127), adopting the common law and repealing all former laws, of the former Government reserving islands, etc., were especially continued in force.
"And, although no such laws are known to exist, the exception indicates the belief of the Congress that islands at that time were not subject to location, and its intention to continue such laws in force."
In 1851 Bourland and Miller reported to the Legislature that the island contained a little more than 30 leagues. In 1941 Boyles surveyed the island and reported that it contained about 30 1/2 leagues. It is quite obvious that de la Fuente did not undertake to survey the entire island. The Commissioners had before them the record of de la Fuente's survey and the applications of Grisanti and Tobar for confirmation of the 11 1/2 leagues of pasture land, and they made their recommendations tothe Legislature for confirmation of 11 1/2 leagues only. The Legislature accepted such recommendation and adopted the Act of 1852. The State in that Act recognized the claim for 11 1/2 leagues and confirmed same, and those who claim under the Ballis are entitled to the 11 1/2 leagues.
The State in several instances has filed suits and recovered excess land. See Sullivan v. State, 41 Texas Civ. App. 89[41 Tex. Civ. App. 89],95 S.W. 645, 207 U.S. 416, 28 S. Ct. 215, 52 L. Ed. 274; Heard v. Town of Refugio, 129 Tex. 349, 103 S.W.2d 728; Findlay v. State, 238 S.W. 956, aff. 130 Tex. 30, 250 S.W. 651; State v. Post, 169 S.W. 401, Id. 106 Tex. 468, 169 S.W. 407. In Sullivan v. State, 41 Texas Civ. App. 89[41 Tex. Civ. App. 89],95 S.W. 645, 207 U.S. 416, 28 S. Ct. 215, 52 L. Ed. 274, the State brought suit for all land in excess of the 6 1/2 leagues confirmed by the State in the Act of 1852 for the full amount of 6 1/2 leagues and no more. Defendants claimed that the land involved emanated from a Mexican grant of 6 1/2 leagues to Pedro de la Garza, made in 1832, which was confirmed by the Act of 1852. In that suit the State recovered the excess. In construing the Act of 1852 the Court said:
"The survey provided for in the act of confirmation was to be made of the land originally granted by the Mexican authorities, and could not legally include any other land. Clark v. Hills, *Page 266 67 Tex. 145-146, 2 S.W. 356. And if the survey caused to be made by the owners of the grant in this case under the act of confirmation included other or more land than the original grant and survey made by virtue thereof, it would be void as to such other land or excess."
The Supreme Court of the United States in affirming the judgment of the Texas Court in Sullivan v. State, 207 U.S. 416, 28 S. Ct. 215, 218, 52 L. Ed. 274, said:
"It could not have been within the contemplation of the Legislature that this surveyor, picked out by the claimant, should have power to bind the State, by the mere matter of survey, to a grant nearly double the size of that which is confirmed by the statute of relinquishment."
The recent case of Heard v. Town of Refugio, 129 Tex. 349,103 S.W.2d 728, involved an excess of 43.9 acres of land within the bounds of the four leagues granted by Coahuila and Texas to the Town of Refugio. The excess was sued for, and this Court held that it could be recovered. Judge Smedley in the course of the opinion said:
"While the title acquired by the Town of Refugio under the colonization law may have been merely an incipient of equitable title, as is suggested in Town of Refugio v. Byrnes, or may have been subject to the control and disposition of the sovereign (Dittmar v. Dignowity, 78 Tex. 22, 14 S.W. 268;; Pence v. Cobb,155 S.W. 608, 610), the nature of the original title is madeunimportant by the act of confirmation. That act, by authorizing and requiring the Commissioner of the Land Office to issue to the mayor and aldermen of the town and their successors a patent for the four leagues of land, had the effect of vesting in the town as a corporation the legal title and absolute ownership of all of the land (and no more) that was dedicated, reserved or granted to the town by the Colonization Law. Town of Refugio v. Straunch (Com. App.), 29 S.W.2d 1041." (Emphasis mine.)
Respondents contend that the State never asserted any claim or exercised any control over any part of Padre Island after confirming the Balli claim by the Act of 1852. They also contend that the official maps show this land is not claimed by the State. Let us keep in mind the history of the times and the nature of this land when the Act of 1852 was passed. It is well known that this land is only a few feet above sea level, and that practically all, if not all, of the land comprising Padre Island is frequently *Page 267 flooded during storms. Much of this land, as shown by the reports, consists of sand dunes. No substantial improvements of any nature have ever been located on the island. The sand dunes and salty bays had no material value until recent years, when oil and gas were discovered in that part of Texas. They are now very valuable on account of the mineral prospects. The record shows that only the land with grass on it was desirable. The Ballis did not want to buy the undesirable land, and they paid for only 11.15 leagues. If the State did not part with the title to the land in excess of 11 1/2 leagues by the Act of 1852, such excess still belongs to the State. And the State would not be deprived of its right to claim such excess land merely because some officer failed to assert title to same for the State; nor would it lost its right by reason of the lapse of time, or on account of adverse possession or the payment of taxes, or because on some map it was not shown that the land was claimed by the State, or because some officer had been derelict in protecting the rights of the State. Sullivan v. State, 41 Tex. Civ. App. 89,95 S.W. 645; Id., 207 U.S. 416, 28 S. Ct. 215, 52 L. Ed. 274; Weatherly v. Jackson, 123 Tex. 213, 71 S.W.2d 259; Humble Oil Refining Co. v. State, Tex. Civ. App., 162 S.W.2d 119, writ refused.
Respondents further contend that the State has no right under this record to assert any claim to the land in excess of the 11 1/2 leagues relinquished by the State. Let us test this contention in connection with the undisputed and controlling facts as reflected by this record. The following are undisputed facts: (1) That the application for the grant from the Mexican Government by the attorney in fact for Nicolas Balli and Juan Jose Balli described the land as containing 19 1/2 leagues; (2) that the Ballis, based upon de la Fuente's survey and report, paid for only 11.15 leagues of pasture land; (3) that the certificate of juridical possession described the land as 11.15 leagues; (4) that Grisanti and Tobar, who acquired the Balli claim to the land acquired from the Mexican Government, applied to the commissioners appointed to investigate such claims for confirmation of "11 1/2 leagues of pasture land"; (5) that Bourland and Miller recommended a confirmation of 11 1/2 leaguesonly, and in the same document stated they were confident that the island contained or embraced over 30 leagues of land; and (6) that the Legislature adopted the recommendation of the commissioners by enacting the Act of 1852, and relinquished the right of the State in 11 1/2 leagues of land, called "Padre Island, Cameron County," but in keeping with the public policy of the State reserved the rights of the State to any of the islands or salt lakes situated in the territory covered by said Act. *Page 268
That 11 1/2 leagues was the amount of land covered by the grant is the dominant fact running through this case. The survey covered 11.15 leagues, payment was made for 11.15 leagues, and the juridical certificate of possession was for the pasture land consisting of 11.15 leagues. The claimants under Balli asked the State for 11 1/2 leagues of pasture land, and the State by the Act of 1852 granted them 11 1/2 leagues. Can it be said that the holders of the grant and the Legislature of Texas were doing a vain and useless thing and were acting without reason and without authority when the Act of 1852 was passed? Until such Act was passed the holders of the grant held, at best, only a questionable claim. Under the undisputed facts it can not be seriously contended that the Legislature intended by the Act of 1852 to confirm a grant of the entire Padre Island, which contains more than 30 leagues of land, when the Act specifically confirmed 11 1/2 leagues. When the language used in the Act is tested by any recognized rule governing the construction of statutes, considered in connection with the long-established public policy of the State relating to islands and submerged lands, it is clearly evident that the Legislature did not intend to relinquish and confirm unto Grisanti and Tobar more than 11 1/2 leagues of land, as described in the de la Fuente survey, and the State is entitled to recover the excess over 11 1/2 leagues.
The next point to be considered involves the doctrine of accretions to islands owned by the State. Much has been written on the subject of accretions, but it would serve no useful purpose to discuss the various principles and rules applicable to accretions in different States and in different countries. Whatever authorities and decisions are cited and discussed here will be for the sole purpose of ascertaining whether the State relinquished its right to the accretions to Padre Island by the Act of 1852.
In the case of Miller v. Letzerich, 121 Tex. 248,49 S.W.2d 404, 85 A.L.R. 451, this Court, speaking through Chief Justice Cureton, said:
"The statutes in force in the Republic of Texas before the introduction of the common law are to be construed in the light of the Mexican civil law, and the validity and legal effect of contracts and of grants of land made before the adoption of the common law must be determined according to the civil law in effect at the time of the grants."
Texas has always zealously guarded her rights in the seashore and in her islands and submerged lands, and has never *Page 269 passed any law relinquishing her rights in such lands. This Court has repeatedly held that an ordinary grant of land along the seacost does not pass title to any land that is covered by the water, and the grantee "takes only to the shore, which, at common law, is the line of ordinary high tide, but which, under the civil law, is the line of the highest tide in winter." 44 Tex. Jur., p. 127, sec. 99. Furthermore, Texas retains its control and ownership of the islands and the waters of the bays and Gulf for three leagues from the shore. Act of 1840, Hartley's Digest, Art. 127; State v. Delesdenier, 7 Tex. 76; City of Galveston v. Menard, 23 Tex. 349; State of Jadwin, Tex. Civ. App.,85 S.W. 490, writ refused; DeMerritt v. Robison, 102 Tex. 358,116 S.W. 796.
The rule of strict construction would be applicable to the granting of land on an island even though Section 5 had not been included in the Act of 1852. The case of City of Galveston v. Menard, supra, involved the construction of an Act of the Texan Congress passed on December 10, 1836, authorizing the relinquishment of part of Galveston Island to Menard. The question of the ownership of the bays, flats, etc. under the grant arose in that case for decision. This Court in 1859, in an ex haustive opinion written by Mr. Justice Roberts, reviewed the authorities concerning the power to make such a grant, and the authorities which showed who acquired the sea, bays and rivers, and their shores, under such a grant, and in the course of the opinion it was said:
"This power results, as a necessary consequence of the absolute sovereignty of the republic, over the territory included in its limits. The southern boundary of that territory was defined by an act of the Texan congress, to extend from `the mouth of the Sabine river, and running west along the gulf of Mexico, three leagues from land, to the mouth of the Rio Grande,' etc. After annexation of Texas, the state, by an act of the legislature, re-affirmed its `exclusive right to the jurisdiction over the soil, included in the limits of the late republic of Texas,' excepting such as may be vested in the United States, by the constitution of the United States, and by the joint resolution of annexation. Hart, Dig. arts. 1631 and 1634. * *.
"In the civil law, it is said, that the sea, bays and rivers, with their shores, were common; free to the use of any one, and are deemed to belong to no one.
* * * * * * *
"The main question is, does this act confer the right to the *Page 270 shore and flats, lying south of the channel of the bay? If viewed as an ordinary grant of land, it does not. The coast, and to the extent of ten littoral leagues in the interior, had been reserved from colonization, since 1824, except by the consent of the general government of Mexico. It had not been the policy of that government to encourage its settlement, or the settlement of the islands, by which it is lined.
"On the next day after the passage of this act, another was passed, by which it was resolved, `that all islands belonging to this republic, shall be, and are hereby, reserved for the government use, except the president be authorized, specially, to sell them.' 1 Cong. 76. Which authority was given in June, 1837. 1 Cong. 267, 268. By this it was manifested, that a special control over the islands was assumed by the government. By the civil law, the shores of the sea, of bays, and navigable streams generally, as well as the tide-waters, were jealously guarded from private appropriation, and reserved for common use."
For a discussion of the doctrine that accretions are not allowed to land fronting on the sea, see the following authorities: Corpus Juris, Vol. 40, p. 1437, sec. 239; Code of Napoleon, Book II, Section 1, Articles 556, 557, 558; Institutes of Justinian, Revised Edition, 1852, by Thomas Cooper, Book II, Title 1, Law 1, p. 87; Third Book of the Partidas, Title 28, Law 3; Kent's Commentaries, 13th Edition, Vol. 3, p. 427; Tex. Jur., Vol. 44, p. 127, sec. 100.
We have not been pointed to any definite statement as to what the civil law of Tamaulipas was in 1827-1830, but we do find that on June 29, 1871, Tamaulipas adopted a civil code, which among other things contained the following:
"Art. 894. — The owners of estates bounded by lakes or ponds do not acquire the land uncovered by the natural diminution of the waters, nor lose that which is inundated by extraordinary flows."
"Art. 898. — The islands which are formed in the seas adjacent to the coast of the state are public domain, and no one can acquire property in them except by concession from the government."
It must be conceded that the law controlling in this case is the civil law in force in the State of Tamaulipas from 1827 to 1830, during which period the Ballis acquired their claim from that government. It can be assumed that the law then in force *Page 271 in the State of Tamaulipas was the civil law applicable in Spain. Respondents in their brief admit that "the ancient Spanish law, found mainly in Las Siete Partidas, continued to be the municipal law within the present area of Texas until the Congress of the Republic adopted the Common Law." The common law was adopted in 1840, and this Court approved the rule "that the common law as modified by our local conditions is in force in Texas." Welder v. State, Tex. Civ. App., 196 S.W. 868, 870, writ refused. See also Grigsby v. Reib, 105 Tex. 597, 153 S.W. 1124, L.R.A. 1915E, 1 Ann. Cas. 1915C, 1011; Clarendon Lands, Investment Agency Co. v. McClelland, 86 Tex. 185, 23 S.W. 576, 22 L.R.A. 105; Id.,86 Tex. 179, 23 S.W. 1100, 22 L.R.A. 105; Texas Jurisprudence, Vol. 9, p. 307, sec. 9.
In the case of Manry v. Robison et al, 122 Tex. 213, 56 S.W.2d 438, 446, Chief Justice Cureton, writing the opinion of this Court, exhaustively reviewed the authorities relating to the rights of riparian owners arising under the civil, common, and Roman law. He pointed out that those nations in adopting the Roman law adopted a construction which was most suitable to their conditions. We quote briefly from that opinion as follows:
"England in adopting the Roman law as to its nontidal streams adopted the construction insisted on by Selden, Vinnius, Mr. Farnham (Vol. 1, Sec. 49), and others, that the title of the riparians extended to the center of the streams, because that construction was suitable to her conditions; while France, Spain, and Mexico adopted that interpretation indicated by Gaius (Scott's Civil Law, Vol. 9, p. 107), and followed generally by the American courts (Farnham, Vol. 1, Sec. 49), that title to the beds of all navibale streams, so long as occupied, was in the public or the sovereign, because that construction was suitable to their conditions.
"Each of the nations named in selecting its interpretation of the Roman law as to the ownership of stream beds, so long as occupied, chose that rule which was best suited to its conditions."
Florida was also a province of Spain, and operated under the Spanish civil law until it was ceded to the United States in 1819. The case of Apalachicola Land Development Co. v. McRae,86 Fla. 393, 98 So. 505, involved title to a grant from the Lower Creek and Seminole Indians to John Forbes Co., which grant was alleged as having been confirmed by the Spanish authorities in 1811 and leave given to transfer such grant to Colin Mitchel. The Supreme Court of Florida, in an exhaustive opinion, reviewed the authorities relating to the Spanish law, and *Page 272 held that under the civil law in force in Spain and its provinces, when not modified by ordinances affecting the provinces, the sales and grants of submerged and tide lands to individuals were contrary to the general laws and customs of the realm. In support of its decision many cases were cited, including City of Galveston v. Menard, supra.
The Supreme Court of Louisiana, a civil law State, in the case of Zeller v. Southern Yacht Club, 34 La. Ann. 837, held that the accretions to the shore of Lake Ponchartrain, a tidal lake, were the property of the State and not the property of abutting owners.
The case of Ker Company v. Couden, 223 U.S. 268, 32 S. Ct. 284, 56 L. Ed. 432, involved accretions to land in Cavite, Louzon Island, Philippines, where the civil law admittedly was in force. The case went through the courts of the Philippines and finally reached the Supreme Court of the United States. Plaintiff in error in that case contended: "The Supreme Court of the Philippines erred in holding that the law, as written in the Partidas, declares that land above seashore formed by accretion from the sea belongs to the Crown and not to the riparian owner. Laws, 3, 4, 6, 34, Tit. 28 ed Partidas." Defendant in error contended: "The land in controversy, having been formed from time to time since the year 1811, down to the present, by accession or accretion, occasioned by the action of the sea, became, as it was formed, a part of the public domain of Spain, and, as such, became, upon the acquisition by it of the Philippine Islands, a part of the public domain of the United States." Mr. Justice Holmes wrote the opinion for the Supreme Court of the United States. He stated that he was dealing with the law of the Philippines, just as we are dealing here with the law of Tamaulipas and Texas. It is well to keep in mind that Texas, Tamaulipas, and the Philippines were for a long period of time provinces of Spain. Mexico, of which Tamaulipas was a State, won her independence in 1821, and Texas won her independence from Mexico in 1836. The Supreme Court of the United States held in effect that under the civil law, while accretions occurred from 1811 to the date of the trial, such accretions belonged to the United States as the sovereign which succeeded to the rights of Spain in the Philippines. Mr. Justice Holmes was well qualified by scholarship, training, and experience to review the authorities bearing on the question of accretions, and we quote freely from the opinion written by him in that case as follows:
"The plaintiffs claim title under conveyances from the owner *Page 273 of the upland. The Philippine courts held that under the Partidas, III, Tit. 28, Laws 3, 4, 6, 24 and 26, and the Law of Waters of 1866, the title to the accretions remained in the Government, and the vexed question has been brought to this court.
"That the question is a vexed one is shown not only by the different views of Spanish commentators but by the contrary provisions of modern codes and by the occasional intimations of the doctors of the Roman law. Justinian's Institutes, 2, 1, 20 (Gaius II. 70), followed by the Partidas, 3, 28, 26, give the alluvial increase of river banks to the owner of the bank. If this is to be taken as an example illustrating a general principle there is an end of the matter. But the Roman law is not like a deed or a modern code prepared uno flatu. History plays too large a part to make it safe to generalize from a single passage in so easy a fashion. Alongside of the rule as to rivers we find that the right of alluvion is not recognized for lakes and ponds, D. 41, 1, 12, a rule often repeated in the civil law codes, e.g., Philippine Civil Code of 1889, Arts. 366, 367. Code Napoleon, Art. 550. Italy, Civil Code, 1865, Art. 454. Mexico, Art. 797. If we are to generalize, the analogy of lakes to the sea is closer than that of rivers. — We find further that Inagris limitatis jus alluvions locum non habet. And the right of alluvion is denied for the agrum manu captum, which was limitatum in order that it that it might be known (exactly) what was granted. D. 41, 1, 16. The gloss of Accursius treats this as the reason for denying the jus alluvionis. If this reason again were generalized, it might lead to a contrary result from the passage in the Institutes. Grotius treats the whole matter as arbitrary, to be governed by local rules, and both the doctrine as to rivers and the distinction as to accurately bounded lands as rational enough. De Jure B. P. Lib. 2, cap. 8, 11, 12. A respectable modern writer thinks that it was a mistake to preserve the passage concerning definitely bounded grants in the Digest, 1 Demangeat, Droit Romain, 2d ed. 441 (`antiquirt' Puchta, Pandekten, sec. 165), but so far as we have observed this is an exceptional view, and from the older commentators that we have examined down to the late brilliant and admirable work of Girard, Droit Romain, 4th ed. 324, this passage seems to be accepted as a part of the law. At all events it shows that, as we have said, it is unsafe to go much beyond what we find in the books. And to illustrate a little further the uncertainty as to the Roman doctrine we may add that Donellus mentions the opinion that alluvion from the sea goes to the private owner only to remark that the texts cited do not support it, De Jur. Civ. IV, c. 27, 1 Opera (ed. 1828), 839 n., and treats the rule of the Institutes as peculiar to rivers, as also Vinnius in his comment on the passage stating the rule seems *Page 274 to do, while Huberus, on the other hand, thinks that rivers furnish the principle that ought to prevail. Praelectiones, II, Tit. 1, 34.
"The seashore flowed by the tides, unlike the banks of rivers, was public property; in Spain belonging to the sovereign power. Inst. II, Tit. 1. 3, 4, 5. D. 43, 8, 3. Partidas, III, Tit. 28, 3, 4. And it is a somewhat different proposition from that laid down as to rivers if it should be held that a vested title is withdrawn by accessions to what was owned before. Perhaps a stronger argument could be based on the rule that the title to the river bed changes as the river changes its place. Part. III, Tit. 28. Law 31. Inst. 2. 2, 23. D. 41. 1. 7, 5. But we are less concerned with the theory than with precedent in a matter like this, whether we agree with Grotius or not in his general view. The Spanish commentators do not help up, as they go little beyond a naked statement one way or the other. It seems to us that the best evidence of the view prevailing in Spain is to be found in the codification which presumably embodies it. The Law of Waters of 1866, which became effective in the Philippines in September, 1871, and the validity of which we see no reason to doubt, after declaring like the Partidas that the shores (playas), or spaces alternately covered and uncovered by the sea, are part of the national domain and for public use, Arts. 1, 3, goes on thus: `Art. 4. The lands added to the shores by the accessions and accretions caused by the sea belong to the public domain. When they are not (longer) washed by the waters of the sea, and are not necessary for objects of public utility, nor for the establishment of special industries, nor for the coast guard service, the Government shall (will?) declare them property of the adjacent estates, in increase of the same.'
"Notwithstanding the argument that this article is only a futile declaration concerning accessions to the shore while it remains such in a literal sense, that is, washed by the tide, we think it plain that it includes and principally means additions that turn the shore to dry land. These all remain subject to public ownership unless and until the Government shall decide that they are not needed for the purposes mentioned and shall declare them to belong to the adjacent estates. The later provisions in Article 9, that the public easement for salvage,c., shall advance and recede as the sea recedes or advances, simply determines that neither public nor private ownership shall exclude the customary public use from the new place. The Spanish Law of Ports of 1880, like the Law of Waters, asserts the title of the State although it confers private rights when there is no public need. *Page 275
"The presumption that the foregoing provisions of the Law of Waters express the understanding of the codifiers as to what the earlier law had been, becomes almost inexpugnable when we find that the other leading civil law countries have adopted the same doctrine. The Code Napoleon, after laying down the Roman rule for alluvion in rivers, Art. 556, 557, adds at the end of the latter Article: `Ce droit n'a pas lieu a l'egard des relais des la mer,' which seems to have been adopted without controversy at the Conference. See further Marcade, Explication, 5th ed., vol. 2, p. 439. And compare 2 Hall's Am. Law Journal, 307, 324 329, 333. The Civil Code of Italy, 1865, Art. 454, is to similar effect. See also, Chile, Civil Code, Art. 650. The Supreme Court of Louisiana in like manner confines the private acquisition of alluvion to rivers and running streams, and denies the private right in the case of lakes and the sea. Zeller v. Yacht Club, 34 La. Ann. 837. And the provision of the Louisiana Code, Art. 510, is like those of France, Italy and Spain. The court of first instances below refers to judgments of the Supreme Court of Spain that seem to look in the same direction. We have neither heard nor found anything on the other side that seems to us to approach the foregoing considerations in weight, not to speak of the respect that we must feel for the concurrent opinion of both the courts below upon a matter of local law with which they are accustomed to deal."
The policy of this State has been to reserve its shallow submerged lands for the public's use, and prohibit any ministerial officer from selling same. In other words, it takes an Act of Legislature to convey such lands. Lorino v. Crawford Packing Co., 142 Tex. 51, 175 S.W.2d 410; State v. Bradford,121 Tex. 515, 50 S.W.2d 1065; City of Galveston v. Mann,135 Tex. 319, 143 S.W.2d 1028; Hynes v. Packard, 92 Tex. 44,45 S.W. 562; DeMerrit v. Robinson, 102 Tex. 358, 116 S.W. 796; Dincans v. Keeran (Civ. App.), 192 S.W. 603. In DeMerritt v. Robison, supra, this Court quoted with approval from the opinion in Rosborough v. Picton the following:
"`According to both the common and civil law, an ordinary grant of land along the seacoast, made by the ministerial officer of the government, did not pass the title to land under water or beyond the coast line. This line was fixed by the common law at the point reached by ordinary high tide, and by the civil law at the mark of the highest tide. The exterior boundary line of the grant to Power and Hewitson was the seacost (Sayles' Early Laws, 108; Hamilton v. Menifee, 11 Tex. 718), and no authority was given them over the waters of the sea, or of the bays and inlets, or of the soil under them. These are, by well-settled *Page 276 principles, reserved for common use. Hence the grants by the commissioner of that colony passed title only to land which was not under the waters of the sea. Galveston v. Menard, 23 Tex. 349; Galveston Surf B. Co. v. Heidenheimer, 63 Tex. 562; Arnold v. Mundy, 6 N.J. Law, 1, 10 Am. Dec. 456; Den v. Sawyer,9 N.C. 226; Martin v. Waddell, 16 Pet. 369, 10 L. Ed. 997.' That opinion was approved by this court in Hynes v. Packard, 92 Tex. 49,45 S.W. 563, saying: `In Rosborough v. Picton, 12 Tex. Civ. App. 113,34 S.W. 791, the title to the same land was involved, and the Court of Civil Appeals in a very clear opinion by Judge Williams decided that the land was not the subject of grant by the officer who executed the Hynes title, and that no right passed by such grants. We think the decision is correct. Hynes, having no title, conveyed none, and was liable upon his covenant of warranty.'"
No case has been cited, nor has any been found, which involved facts similar to the facts of the case under consideration. This Court has not heretofore been called upon to write on the precise questions in this case. However, it has been called upon to pass upon the question of accretions, presented in cases coming by appeal from the Court of Civil Appeals. In the case of State v. Jadwin, 85 S.W. 490 (writ refused), was presented the question of accretions to lands of Galveston Island. It was there contended that the land did not belong to the State, but went to the owner of the land adjoining said accretions. In that opinion it was said:
"The land upon the island belonged to the state. Equally the waters of the bay and the gulf for three leagues from the shore. As between Texas, as the grantor, and the United States, as grantee, the grant could not be enlarged by accretion. What Texas granted to the federal government was the specific lands devoted to purposes of public defense. It seems obvious that, if these lands should be reduced to the bottom of the sea by storms and tides, the space they occupied would still belong to the government of the United States, to do with as it chose. On the other hand, it seems equally obvious that the waters surrounding this grant remained Texas territory, and the land builded thereon by the action of the sea would be equally hers."
In the case of Dincans v. Keeran, supra, the Court of Civil Appeals at San Antonio held that a bayou affected by the ebb and flow of the tide was common property belonging to the people, and that an adjacent landowner could not maintain an action for trespass against people using such bank or seashore.
The Court of Civil Appeals and the majority opinion cite the *Page 277 case of State v. Texas Land Cattle Co., 34 Texas Civ. App. 460[34 Tex. Civ. App. 460],78 S.W. 957, in support of their holdings. That suit involved the title to a tract of land known as "Los Laureles Ranch," situated on the mainland in Nueces County. The holding in that case is based on the case of Denny v. Cotton, 3 Tex. Civ. App. 634,22 S.W. 122. The issue of accretion to land fronting on a river was involved in the Denny case, and only cases and authorities bearing on accretion to land fronting on rivers are cited to support the decision. The accretion to land fronting on the sea was not involved, and was not discussed in that opinion. No application for writ of error was presented to this Court in the case of State v. Texas Land Cattle Co., supra. The case of State v. Jadwin, supra, in which a writ of error was refused by this Court, arose after the case of State v. Texas Land Cattle Co., supra, was passed upon. This Court approved the opinion of the Court of Civil Appeals in that case by refusing a writ of error.
The Legislature of Texas has the sole authority for the granting of public lands. Since the Republic of Texas was organized, the islands, submerged lands, and the seashore of Texas have been jealously guarded for the benefit of the public, and any grants concerning the same are strictly construed in favor of the State.
This record clearly shows that the Ballis intended to buy and pay for only the pasture land on Padre Island, and those claiming under them are entitled to none of the excess. The fact that the land the Ballis did not buy was worthless and undesirable at the time of the grant, did not deprive the State of its title to such land. To deprive the State of the right to recover the amount of land in excess of 11 1/2 leagues, which excess existed in 1852 and exists now, would be contrary to what the original claimants intended and what the Legislature actually had in mind when passing the Act of 1852. Grisanti and Tobar asked that the State confirm to them 11 1/2 leagues of pasture land which they had acquired from the Ballis, and the Legislature confirmed 11 1/2 leagues of land to them. To now award to the holders of the Balli claim all the land in excess of the 11 1/2 leagues, together with the bays and accreted lands as well, is directly contrary to the unbroken public policy of this State and the Act of 1852. Doing this simply means that approximately 20 leagues of land, and in addition thereto the bays, sand dunes and accretions, considered worthless and undesirable and not worth paying for at the time of the grant, but now very valuable on account of the potential production of minerals, will be lost to the State without the claimants' ever having paid anything therefor. *Page 278
I think the majority decision in this case is clearly contrary to the weight of authority and the long-established public policy of this State with reference to the seacoast, submerged lands, islands, and accretions formed by the sea to islands, and hence I feel compelled to dissent. The power to change this policy rests exclusively with the Legislature, and does not rest with the courts. I think the State is entitled to the land in excess of the 11 1/2 leagues and to the accredited land formed since the original purchase. This case should be reversed and remanded.
Opinion delivered November 7, 1945.