The third amended petition of appellee, Cobb, was one in trespass to try title to a tract containing 285.66 acres situated on the “Island” on the south side of the present channel of the Rio Grande river, and alleged to be a part of the San Elizario grant in El Paso county, Tex. Defendants by a second amended answer pleaded not guilty, etc.; that the land was never a part of the San Elizario grant; that defendants have had continuous adverse possession of same for over 40 years; that since 1853 it lias ever been recognized by the inhabitants of the town of San Elizario as being south and west of the boundary line of said grant; that ever since 1853, and since the patent to the San Elizario grant was made, and ever since 'the town of San Elizario was organized by the special act of the Legislature in 1871 (Sp. Laws 1871, c. 42), the inhabitants of San Elizario and the town of San Elizario and all persons interested have acquiesced in the fact that said land was not a part of the said grant, and that the grant did not extend over said land, and that defendants in their purchases of said land relied on said facts, and plaintiff is precluded and estop-ped from claiming said land as a part of the grant, and defendants also pleaded the statute of limitations of 10 years. After the evidence was concluded, the court directed a Verdict in favor of plaintiff.
Appellants’ counsel in oral argument, although not in their brief, called attention to the fact that plaintiff did not in reply to the plea of limitations plead the above conditions. We are of opinion that they were a proper subject of judicial notice, and therefore it was unnecessary to plead same. It was undisputed that until the action of the International Boundary Commission in 1897, and during all the time of the adverse possession claimed in this case, the Rio Grande, as the boundary line between Texas and Mexico, was recognized and acted upon by the two governments as being the channel to the east of the tract in question, that the Mexican government exercised dominion west of that channel, and the government of the United States and of the state of Texas refrained from asserting and exercising dominion beyond that channel. The courts in such matters regard and follow the lead of the political department of its government. United States v. Arredondo, 6 Pet. 691, 8 L. Ed. 547; Garcia v. Lee, 12 Pet. 511, 9 L. Ed. 1176. This de facto condition, while it existed, it was the duty of the district court of El Paso county to observe, which necessarily involves judicial notice of the fact. State v. Dunwell, 3 R. I. 127. We think that it is clear that while said conditions prevailed a suit involving title to land described as lying beyond that recognized boundary filed in the district court of El Paso county would upon the court’s own initiative and in the performance of its duty not have been entertained.
The following are the material facts developed by the testimony as to title: By the act of February 5, 1853 (Sp. Laws 1853, c. 6), “the grant made to the people of Presidio de San Elizario” in the year 1790 was recognized and confirmed to land described as commencing on Rio Grande at line between Socorro and San Elizario; thence easterly to hills bordering on east bank of Rio Viejo; thence southeasterly with said hills to point where Rio Viejo empties into the Rio Grande; thence up said Rio Grande from the mouth of Rio Viejo to the place of beginning. The patent dated March 8, 1S53, granted and relinquished to the inhabitants of the town of Presidio de San Elizario all the right and title in and to the land described in the above act, and describing same accordingly. By special act of the Legislature in 1871 the town of San Elizario was incorporated, and the limits were fixed identical with the grant, as confirmed. Sp. Laws 1871, c. 42. This act prescribed the condition upon which the incorporated town might deed any part of the grant. The situation remained until the act was repealed by the act of 1891 (Sp. Laws 1891, c. 11); and at the same session in 1891 another act (Sp. Laws 1891, c. 4) was passed validating deeds that had been made by the town of San Elizario after an attempt to incorporate under the general law, and reciting that the grant of the body of land had been made to the inhabitants of the
The question first to consider is whether or not the land in question was within what was granted by the patent. We conclude that it was. The western boundary of the grant was the Rio Grande river, wherever that proved to be. The Rio Grande called for. in the patent was the boundary of the state, and said river for all the distance along this grant was where it had always been, except for a change along a short distance which occurred in 1857, throwing this piece of land on the Mexican side apparently. It was admitted by plaintiff, and is cited by appellants as a fact, that the Rio Grande charfged.to its present course in 1857. If so, it is evident that the patent in 1853 extended west of the present channel. It was also admitted at the trial that there is no outstanding title in the state to the land involved in this suit. No other grant, or attempted grant, by the state of Texas to this tract was shown. The International Boundary Commission ascertained the original position of the river to be coincident with the western boundary of the tract in question, and mon-umented the international boundary accordingly.
The next question is whether or not plaintiff, Cobb, acquired title to this tract by his deed from the town of San Elizario through its present incorporation. The act of 1871, incorporating the town of San Elizario, enacted that the citizens of the town of San Elizario in the county of El Paso be and is hereby declared a body corporate; that the corporate limits shall include all within certain boundaries, describing same as in the patent. The act, by section 24 thereof, recognized the grant as the property of the town of San Elizario and authorized conveyances, but imposed on the corporation certain restrictions in this respect. It recognized the title to be in the town of San Elizario. The act and its provisions and restrictions came to- an end upon its repeal in 1891. 10 Gammil’s Laws, p. 252. Just previous to this repealing act there was passed a validating act, validating deeds made by the town of San Elizario while acting under the general incorporation laws-of the state, the act reciting that the state had granted by patent to the inhabitants of the town of San Elizario a body of land, and said inhabitants had for many years ignored the special charter, and had organized, in’ pursuance of the general incorporation laws, a municipal corporation and subdivided the land into small parcels and conveyed same by deed, and the same are now in good faith held and owned by hundreds of persons, etc. This act was evidently passed upon the theory that, while the charter granted by the special act was in force, the town had attempted to incorporate under the general law of 1858 (Laws 1858, e. .61), and had made conveyances under that incorporation, which was unlawful, and that such conveyances required validation for that reason.
As before stated, the town of San Elizario, after having been without incorporation for 12 years, became incorporated under the Revised Statutes in 1893, with restricted limits as aforesaid, which corporation was abolished by an election held in 1897, and then, in 1906, the present corporation was organized • with similar restricted limits, both of these organizations including the town, the latter one expressly giving the boundaries from the Plaza which was the center of the town of San Elizario. It appears from the testimony that the town as incorporated in 1871 by said special act afterwards located its west line as being where the river then and now runs, subdivided its lands to that boundary, and no. further west, and sold same up to that line. This action of the
We recognize, of course, that in granting corporate powers to inhabitants of a community the Legislature would have the right to limit the exercise of the corporate functions, even to the extent of depriving the inhabitants of the power to convey, through the corporate body, lands that had been granted them by the state. But we are of opinion that, in enacting the article 587, the Legislature had in view communities as they are ordinarly conditioned, -and not those very exceptional ones which may have had property granted them by the state; and, in enacting said article and providing that the corporation might hold and dispose of land within its limits, the Legislature had reference to real property to be acquired by the corporation, and not property that was already vested in the inhabitants forming the corporation. We reach thé conclusion that the title to the land in question here and right of disposition thereof were in the inhabitants of the town of San Elizario, and that its corporate authorities had power to dispose of the same, or any remnant thereof, and that its deed to Cobb passed title. According to the undisputed facts, we think the court did not err in the peremptory instruction.
The sixth, seventh, and eleventh assignments of error, if sustained, would not affect the force and effect of plaintiff’s deed from the town. All the other assignments of error are overruled as the necessary consequence of what is held in this opinion.
<The land involved has always been legally a part of the state of Texas de jure since the treaty of Guadalupe Hidalgo. Titles or claims thereto emanating from the republic of Mexico since then are of no effect. Robinson v. Minor, 10 How. 628, 13 L. Ed. 568, Garcia v. Lee, 12 Pet. 511, 9 L. Ed. 1176,
Judgment affirmed.