dissenting.
I respectfully dissent.
The main question to be determined in this case is whether the civil law shore line or the common law shore line should *196prevail over the lands in question. This case originated as Mineral Application No. 42289 filed in the General Land Office, as provided for in Art. 5421(c), Vernon’s Annotated Civil Statutes, by Russell S. Ponder concerning land either in or on Copano Bay in Aransas County and known as Egery Flats. The application was granted in part and denied in part. Pursuant to Sec. 6J of Art. 5421(c) Vernon’s Anno. Civ. Stat., Ponder filed suit in the District Court in Aransas County naming interested parties defendant, as required by Sec. 6J. Answer and cross-action were filed, the cause was tried, without a jury, and a judgment was rendered favorable in part and unfavorable in part to petitioners. Petitioners are J. Earl Rudder and John Ben Shepperd as members of the School Land Board of Texas, and The State of Texas. Respondents are Russell S. Ponder, Sun Oil Company, Taft Properties, Inc., Henry B. Dielmann, and Glenn Derrough et al.
The petitioners contend that the state is the owner of all lands submerged by tidal waters. By their Second Amended Original Answer and Cross-Action the petitioners admitted that the tract of land designated in the record as Tract “A” was vacant land, but by way of cross-action against the plaintiffs as well as the other respondents, asserted ownership of approximately 572.1 acres of land lying below the “toe of the bluff” as located by surveyor Herbert Whelan.
The judgment of the trial court which was entered on December 15, 1958 dealt with the land involved as nine separate tracts and entered its judgment as follows:
1st. Tract No. 1, consisting of 139.98 acres of land out of an area known as Egery Flats in Aransas County, Texas, was awarded to The State of Texas for the Permanent Free School Fund of Texas, subject, however, to the preference right of plaintiff, Ponder, to purchase an oil, gas, and mineral lease, etc., and subject further to the right of any good faith claimants as defined in Art. 5421 (c), etc.
2nd. Tracts 2, 5, and 9, comprising 120.43 acres, were awarded to the State as submerged land.
3rd. Tracts 3 (27.51 acres) and 4 (155.31 acres) to defendant, Taft Properties, Inc.
4th. Tract 6 (143.15 acres) was awarded to defendants Fred M. Percival and Sun Oil Company as their respective interests may appear.
*1975th. Tract 7, consisting of 14.10 acres, and Tract 8, consisting of 103.28 acres, were awarded to defendant, Henry B. Dielmann.
The judgment further decreed that Tract No. 1 (139.98 acres) was vacant, unsurveyed land, not in conflict with land previously titled, awarded, or sold by the State, and subject to lease; and, that the plaintiff, Ponder, had a preference right to purchase an oil, gas, and mineral lease upon said State Tract Number 1, all in accordance with Art. 5421(c), supra., subject to the rights of any good faith claimants, as defined by said Art. 5421(c), and specifically subject to the rights of the defendants, Glenn Derrough and J. D. Derrough, declared to be good faith claimants by the terms of the judgment.
The District Court as a basis for its judgment concluded as a matter of law that the coastal boundaries of the lands in controversy should be determined in accordance with the rules of the common law. Such conclusion was reached largely on the theory that since the common law was adopted on January 20, 1840 and the patents were not issued until April 7, 1841 and April 10, 1841, the common law boundary of “ordinary high tide” was applicable, and not the civil law boundary which places the boundary between the state and owners of coastal lands at the line of “highest tide.” The distinction between civil law grants and common law grants will be discussed later in this opinion. At the moment it is first important to determine which rule applies under the record in this case.
This case involves a public grant and materially affects the Permanent School Fund of this state, and unless under the rules of strict construction the state has relinquished its title to the lands involved, we cannot permit a theory of liberality or one that it makes very little difference which rule is applied to take from the state and the Permanent School Fund one foot of soil still owned by the sovereignty.
I attach no legal significance to the transition from the Spanish to the English language and the use of some English units of measurement such as the mile, the acre, the section, and the fact that the county surveyor was to be paid “three dollars for each English linear mile actually run.” The vara is still in common use by surveyors. The history of the Texas vara is set out in Taylor, The Spanish Archives of Texas, p. 74, as follows:
“Finally, by agreement among themselves, colonial survey*198ors converted the awkward and elusive Mexican vara into the convenient 33 1/3 inch vara. As a decimal inch measure (three varas equal one hundred inches), it is an ideal unit and is easily calculated into English feet, yards, and acres. When the General Land Office was organized, John P. Borden, the first commissioner and previously one of Stephen F. Austin’s surveyors, was doubtless responsible for recognizing 33 1/3 inches as the established length of the vara. All lands surveyed in Texas since it became a republic have been or supposedly have been surveyed with a 33 1/3 inch vara. By silent acceptance and without statutory recognition, it has been used to survey and grant hundreds of millions of acres of land. Texas is the only place that knows or uses it. It stands alone in the standard measures of the world and is a monument to the old Austin colony surveyors who originated it; and it is perpetuated in the field notes of every survey of land granted by the republic and state of Texas. 'After Texas independence all grants of land were in acres, and any length chain or unit of measure could be used without affecting the number of acres in the survey. But the field notes sent to the General Land Office had to give the length of lines in varas of 33 1/3 inches for no other measure has ever been accepted in surveying public lands.’ ”
The Court of Civil Appeals has held that “under the Constitution and Statutes of the Congress of the Republic, a ‘grant’ meant a final title or patent.” Breaking this down a step further, it was held that the date of the patent determines the time of the grant and not the date of the survey. This theory has been approved by the majority. A theory has also been advanced that there is some significance to be attached to the fact that the field notes of the original surveys involved were not filed in the General Land Office until after January 20, 1840. Another highlight of both opinions and one that seems to have been influential in bringing the Court of Civil Appeals and the majority to the conclusion that the true boundary was governed by the common law is the fact that “the trial court held that the line along' the shore of Copano Bay was a meander line.” Emphasis added.
The Court of Civil Appeals made another controlling holding so far as it was concerned and that was as follows:
“Under the Constitution and Statutes of the Congress of the Republic, grants made by the Republic between September, 1836, and January 20, 1840, were made under the principles of the common law.”
*199This latter holding would preclude the state from a recovery of its theory that the time of the “grant” is determined by the date of the survey, which in this case was in 1838 or 1839, a time when the civil law was in effect according to its contention. However, I do not construe the majority opinion to be in agreement with the Court of Civil Appeals on this particular holding. The majority of this Court, as I understand it, simply holds that the patent was not issued until after January 20, 1840, and that the rule of the common law became effective on that date, and is therefore applicable to this case.
With this I cannot agree. The William Steele survey was originally surveyed by John R. Talley at some date between August of 1838 and September of 1839, and these identical field notes were incorporated in the patent dated April 1841 as a description of the land.
It is my contention that a land certificate located by a valid survey on the ground gave a vested property right in the land enclosed by the field notes and necessarily the boundaries became fixed and certain as of the time of survey on the ground, and I further contend (1) that the common law method of fixing the shore line had not been adopted as the law of Texas either at the time of the survey (1838 or 1839) or at the time of the Patent in April 1841, and (2) if the common law method of fixing the shore line was adopted between the date of the survey and the time of the issuance of the patent thereon in 1841, then I say the civil law must control because the survey was made under the civil law.
The Constitutional Convention adopted Schedule No. 1, as follows:
“That no inconvenience may arise from the adoption of this Constitution, it is declared by this Convention that all laws now in force in Texas, and not inconsistent with this Constitution, shall remain in full force until declared void, repealed, altered or expunged by their own limitation. On January 20, 1840, the Congress did provide by Statute that the Common Law * * * (so far as it is not inconsistent with the Constitution or the Acts of Congress now in force) shall, together with such acts, be the rule of decision. * * *.”
It added this significant paragraph:
“Be it further enacted, That all laws in force in this Repub*200lie, prior to the first of September, one thousand eight hundred and thirty-six (except the laws of the Consultation and Provisional Government, now in force, and except such laws as related exclusively to grants and the colonization 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, salt-springs, mines, and minerals of every description; made by the General and State Governments), be, and the same are hereby repealed.”
Another cogent reason for holding that this case is controlled by the civil law and not the common law, and that the date of the survey determines the date of the grant is the fact that the Congress of the Republic adopted the Act of February 5, 1841, effective March 1841, which was designated by the Congress as an Act of “Limitations” Section 23 found at page 634, Vol. 2, Laws of the Republic of Texas, and reads as follows:
“Be it further enacted, that all certificates for headrights, and scrip, bounty warrant, or any other evidence of right to land recognized by the laws of this government, which have been located or surveyed shall be deemed and held as sufficient title to authorize the maintenance of actions of ejectment, trespass, or any other legal remedy given by law: All laws to the contrary notwithstanding. See Paschal’s Digest, Art. 5303. Emphasis added.
Our present statute, Art. 7375, Vernon’s Annotated Civil Statutes, reads:
“All certificates for head-right, land script, bounty warrant, or any other evidence of right to land recognized by the laws of this state, which have been located and surveyed, shall be deemed and held as sufficient title to authorize the maintenance of the action of trespass to try title.”
This Act in identical language will be found in Revised Civil Statutes of Texas 1925, as Art. 7375, 1911, as Art. 7742; 1895 as Art. 5259, and in 1879 as Art. 4795. For further reference see Michies Digest, pages 286 and 287.
In Sayles, Real Property, Vol. 1, p. 473, the author says:
“The location of a certificate upon any vacant public domain subject thereto severs the land covered by it from the mass of the public domain until the expiration of the period within *201which a survey was required to be made. Such location conferred a vested right which could not be defeated by the refusal of the officer to accept the location, by the subsequent issuance of a patent for the land embraced in the location to another, or by subsequent legislation.”
In Hamilton v. Avery, 20 Texas 612, the Court said:
“Our courts have recognized a survey, by virtue of a valid certificate, as a valid right; a right of property, as fully as any other rights. It is a right binding on the government; upon which the government, through the commissioner of the general land office, can be compelled, by judicial process, to issue a patent * * *. It is recognized by the government as his property, and not public domain, by being taxed and sold for taxes, the same as titled lands * * *. It confers the right to maintain a suit upon it, to try the title and eject trespassers. It gives a right which is the subject of possession; of purchase; and of inheritance. It is sold under execution, and administered in courts of probate. It is regarded in the community as possessing but little less marketable value than patented land. * * *.”
The early case of Sherwood v. Fleming, 25 Texas Supp. 408, exploded the theory that the case of Hart v. Gibbons, 14 Texas 213, et seq. (a case relied upon by the respondents) is applicable by holding the question was not involved in that case. The Courts aid in part:
“A locative certificate gives a right to land. It is property, and as such is within the protection of the constitutional guarantees.
“We are referred, for the appellant, to the_ case of Hart v. Gibbons, which is supposed to maintain the doctrine that the government retains the power of absolute disposition of land until the patent issues, although it has been located and surveyed by the holder of a valid certificate. There is no decision of this court which maintains such a doctrine, but an examination of the case will show that that question was not involved in the decision.”
The old surveys are examined daily to determine vacancies, excesses, and existing boundaries, and along with modern developments in law, economics, and industry, the old grants assume new significance and importance. The Spanish Archives have been and remain the major source of conclusive evidence *202in the location and establishment of the title to Texas lands. About the time, prior to and subsequent to the date of the survey of the lands involved in this suit, and the time of the subsequent issuance of the patent, conditions due to the outbreak of open hostilities between Texas and Mexico, and the ultimate establishment of the Republic of Texas, were very unsettled and in order to protect the general welfare of the country, all operations concerned with the granting of lands were suspended. After the winning of Texas’ independence, the Constituiton of the new Republic designated November 13, 1835 as the official date of the closing of the various land offices and declared null and void all titles, surveys, and locations of land made thereafter. The new government immediately adopted the Mexican civil law and validated all land titles made in conformity with the colonization laws governing their issuance. The Republic of Texas then provided that from the public domain grants would be made to colonists who had failed to obtain their titles from Mexico, to new settlers, and to all soldiers who had rendered services in the Texas Army. The General Land Office was created, and its chief officer, the Land Commissioner, was given the authority “to superintend, execute, and perform all acts and things touching or respecting'the public lands of the republic of Texas.” John P. Borden, the first Commissioner, was appointed to gather the archives and to house the records. Without such office and without funds, Borden set out to collect the archives. With the exception of Austin, DeWitt, and Carlos S. Taylor, the authorities were reluctant to give up their archives. The archives at San Antonio could not be located. At Nacogdoches, the records were at the home of the custodian and his excuse for nondelivery was that he was to ill. The surveyor of McMullen and McGIoin’s Colony carried the San Patricio records to Mexico, and DeLeon’s archives at Victoria were believed to be destroyed. One man considered the field notes of his surveys in DeLeon’s Colony as his own personal property and refused to send them in. Borden reported to the legislature on April 10, 1838 the many obstacles confronting him and advised the legislature of the confused state of the land records and six months later on November 7, 1838 Borden reported the archives were still incomplete. In the meantime, the republic had issued certificates covering millions of acres of land. Again on March 28, 1839 Borden directed an appeal to President Mirabeau Lamar for assistance. On April 20, 1839 the government was compelled to discontinue the issuance of patents. Fraud and irregular practices were found on every hand, and on October 23, 1839 Borden said in his report that *203an individual holding less than ten certificates was considered a small operator. See Taylor, The Spanish Archives of the General Land Office of Texas, at page 108.
I have related this history in order to point out the reasons for the delay in the issuance of the patent and the filing of the field notes. There was nothing irregular about the survey in our case. The survey was accepted and recognized by the republic, the field notes were filed, and the patent containing the identical field notes was issued in April 1841. The survey and not the patent carved the land out of the public domain and conclusively defines the area finally granted by the patent. Since the patent cannot change this area, even by lowering the water level fixed by the meander lines in the survey, the survey, for the purpose of this case, is the time of the grant.
The date of the filing of the field notes can in no way be thought of as the date of the inception of the title to which the patent relates. All the cases which have come to my knowledge and particularly those herein reviewed make it crystal clear at least to me that the date the survey is actually made on the ground is the date of the inception of title and upon, which all rights in the land rests. Any conjecture or finding as to when the field notes were filed and when the patent was issued in this case is immaterial. The patent was no more than a final recognition by the state of the rights which had already been acquired by the survey. It related back in time to the date of the survey, and this date is the one which must be looked to in determining what rights were acquired. In 1838 and 1839, the civil law was the rule of decision, and when the surveyor, Talley, meandered the lagoon adjacent to Copano Bay, his meanders went only to the civil law shore line of highest tide. Accordingly, the respondents never acquired any rights, and, therefore, acquired no rights in lands seaward of this civil law line. This civil law shore line will be discussed more fully later in this opinion.
In the case of Morrill v. Bartlett, 58 Texas 644, the Supreme Court describes a patent as merely an evidence of title “describing the land precisely as surveyed.” No larger area is described in the patent than that described in the civil law field notes. In fact, a well established rule has been developed that the patent, when issued, relates back in time to the date of the survey and that the survey represents the inception of the title consummated by the patent.
*204In the case of Hollingsworth v. Holshousen, 17 Texas 41, the Court said: “* * * A location which is sufficiently specific and certain to identify the land which it is intended to appropriate, if followed by a timely survey, is an appropriation of the land, as well before as after the survey * * *.” “Where the equities of the parties are in other respects equal, unquestionably the one having the prior location has the better right. * * * But where nothing appears in respect to any location anterior in date to the survey, that (the survey) must be taken to be the inception of the title. * * * The patent, when obtained, will relate to the inception of the title; * *
Again quoting from Morrill v. Bartlett, supra, the Court said:
“There can be no doubt but that Price or his vendees could have recovered against Ward or his vendees upon the certificate and the land surveyed by virtue of it, before the issuance of the patent. There can be no doubt, also, but that they were entitled to a patent describing the land exactly in accordance with such survey, and could have compelled the commissioner to issue it to Price. How, then, can they be debarred from such recovery by a mere failure on the part of the commissioner to perform the ministerial duty of issuing- the patent in accordance with the survey.”
“As between Price and the government he would certainly be entitled to the land surveyed, and to have the whole of it patented to him. * * *.” Emphasis added.
For other cases see: Cagle v. Sabine Valley Timber and Lumber Co., 109 Texas 178, 202 S.W. 942, 6 A.L.R. 1426; Elliott v. Nelson, 113 Texas 62, 251 S.W. 501; Howard v. Perry, 7 Texas 259; Milam County v. Bateman, 54 Texas 153; 14 Michies Digest, pp. 286, 287; Adams v. Houston & T. C. Ry. Co., 70 Texas 252, 7 S.W. 729; New York & Texas Land Co. v. Thompson, 83 Texas 169, 17 S.W. 920; Chaison v. Stark, 29 S.W. 2d 500, reversed and rendered on another point in Texas Com. App., 50 S.W. 2d 776.
F. W. Hall writes in An Account of the Adoption of the Common Law by Texas, 28 Texas Law Rev. 801, 809 (1950), as follows:
“A few salient observations concerning the Act of 1840 adopting the common law are appropriate before an examination *205is made of the cases construing the statute. First, the Act was prospective and applied only to cases arising after its effective date. Thus, especially for the next several years, the Texas courts had to apply the civil law doctrines (so far as they were able to do so) in cases which arose or in which rights accrued prior to January 20, 1840.” Emphasis added.
Under the doctrine of relation back, as announced in the decided cases, it is clear that in 1836 or 1839, when John R. Talley surveyed the William Steele survey on the ground, all rights which could be obtained in the land vested. That the state could not decrease these vested rights cannot be successfully disputed. On the other hand, the vested rights could not be increased by the issuance of the patent. See Weatherly v. Jackson, 123 Texas 213, 71 S.W. 2d 259. The survey alone determines the extent of the rights acquired.
Adverting for the moment to the finding of the trial court that the line along the shore of Copano Bay was a meander line and admitting that the line is a meander line, suppose we analyze the situation with that premise in mind, then what is the net result? The authorities seem to hold that the general rule is: “That meander lines are run not as boundaries of the tract surveyed, but for the purpose of defining the sinuosities of the banks of the stream or other body of water, and as a means of ascertaining the quantity of land embraced in the survey, the stream, or other body of water, and not the meander line as actually run on the ground, being the boundary, whether the meander line in fact coincides with the shore or not.” Emphasis added. C.J.S. Vol. 11, Sec. 30, pp. 573, 574. This general rule is subject to certain qualifications. See C.J.S. Vol. 11, Sec. 30, p. 574. So, if we say the line in this case is a meander line, then we are right back where we started. Where is the shore line? The respondent’s control stops with the shore.
“Roll on, thou deep and dark blue Ocean — roll! Ten thousand fleets sweep over thee in vain; Man marks the earth with ruin — his control Stops with the shore; * * *” — Lord Byron, Childe Harold’s Pilgrimage, CLXXIX, p. 347.
This brings us to the next question to be determined. The Court of Civil Appeals has held in this case that “the grantee of meandered land owns at least to the shore line, whichever shore may be the correct one.” In this case, the William Steele meander lines were originally placed at the civil law level of the *206waters — the line of highest tide. The Court of Civil Appeals and the majority have held that the civil law shore line is not the correct boundary, but that the shore line, as determined by the common law, is on the 0.4 foot contour above sea level.
Under the record in this case, it is my opinion, that in the event it should be determined that the civil law shore line is the correct boundary this case should be remanded to the Court of Civil Appeals to reconsider the question in the light of such holding and the decisions hereinafter discussed.
The respondents have assumed the position throughout that it was not error to establish the property owners’ property line at the contour line of 0.4 feet above zero of the U. S. Coast Geodetic Survey Bench Mark X 604, because the property owners’ line on a seashore, bay or lagoon goes to the mean high tide line, which was established at such 0.4 contour line. The petitioners contended that “The toe of the bluff” line as shown by the evidence was the correct shore line. The respondents replied that “The toe of the bluff” line was not the criterion set up by law for established property lines at seashores, bays or lagoons, and that “The toe of the bluff” line was not the way to determine the line of mean high tide. Respondents further made the contention that “mean high tide is something that can be, and is, determined, by measuring' the ebb and flow of the tide over a number of years, and not by some undetermined or often undeterminable land mark.”
The Court of Civil Appeals rejected the contention of petitioners and adopted the view of the respondents solely because it was of the opinion that the question must be decided in accordance with common law rules. In any event, I do not believe this court can under the record render judgment for the petitioners in view of the holding that the state failed to prove the civil law shore line, and that because of its holding that the common law shore line was established, it was not error for the trial court to exclude certain evidence offered by petitioners on this question.
In the event this court adopts my views of this case, then the Court of Civil Appeals upon further consideration should be governed by such cases as State v. Balli, 144 Texas 195, 190 S.W. 2d 71; Humble Oil & Refining Co. et al., v. Sun Oil Company et al., 190 Fed. 2d 191; City of Galveston v. Menard, 23 Texas 349; Galveston City Surf Bathing Co. v. Heidenheimer, 63 *207Texas 559; Gould on Waters (3rd Ed.), p. 62, 64; 65 C.J.S. 194, Navigable Waters, Sec. 88; 44 Texas Jur. 127, Waters, Sec. 99.
The point I wish to make is that if the civil law rule applies the evidence offered by the respondents through the surveyor, Mr. Roberts, establishing the 0.4 contour line in this case cannot be used in any manner as a basis for a judgment. On the other hand, if the state, in the opinion of the Court of Civil Appeals, has failed to establish the civil law shore line, then necessarily the cause should be remanded to the trial court for a determination of the location of the shore line in accordance with the rules of civil law and not inconsistent with the opinion of this court if it adopts the views expressed in this opinion. The state introduced in the trial court evidence in an effort to establish the shore line and it contends that “the toe of the bluff” is the civil law shore line. The question of the sufficiency of this evidence is for the Court of Civil Appeals to determine.
Another theory has been advanced through Amicus Curiae briefs filed in this court. That theory is to the effect that under the holdings of the courts in the past it makes very little difference which rule followed. Whether the civil law or the common law, the result so far as area is concerned is about the same. This conception of the law cannot and should not be sustained. The state simply has not relinquished its title if its rights as against the rights of respondents are determined by the civil law. The respondents also advance the theory that the case of State v. Balli, supra, supports the contention presented by Amicus Curiae that the Balli case was determined by the law as incorporated in Las Siete Partidas which was in effect in the State of Tamaulipas at the time of the grant. Amicus ■Curiae proceeds to contend that the “Partidas” was something different than the civil law as contended for by petitioners ■and that in reality the common and civil law fix the same line.
In the Balli case, 144 Texas 195, 190 S.W. 2d 99, the court •said: “It is clear from the decisions of this court that the rights of the state and respondents must be determined in the light of the civil law in effect at the time of the grant as it existed in the State of Tamaulipas. * * * It cannot be doubted that the law as incorporated in Las Siete Partidas was in effect in the State of Tamaulipas at the date of the grant.” This court then went on to hold that the original source of the civil law of the seashore was the Institutes of Justinian and the ancient Roman law. For an interesting resume of the early Roman law see “Cooper’s Justinian, Revision of 1852. Cooper’s translation of *208the Institutes of Justinian (written in Latin) reads: “All that tract of land over which the greatest winter flood extends itself, is the seashore.” In the Balli case this court said the seashore extends as far as the greatest winter flood runs up. The law of Spain (Las Siete Partidas), which was effective in Tamaulipas when the grant was made, defined the seashore to be “ ‘all that ground is designated the shore of the sea which is covered with water of the latter at high tide, during the whole year, whether in winter or in summer.’ ” The court held that the law of the Partidas fixes the boundary between sea and upland, and that “thus the seashore was no part of the land, but always an adjunct of the sea * * * and the shores of the sea as common property is as old as the oldest Roman Law, but by its very nature and meaning there could never be an accession to the seashore as the seashore was defined in the law of Spain, which was effective in Tamaulipas when the grant in this case was made. The seashore was defined to be ‘all that ground is designated the shore of the sea which is covered with water of the latter during the whole year, whether in winter or in summer.’ ”
It is well settled that the civil law boundary between sea and upland is highest water or highest tide either for the whole of the year or for the winter, and that highest tide is used in the decision in the sense of “as far as the greatest wave extends itself in winter” or “where the highest wave (of the year) boils up or foams.” The Balli case and others as well as translations of the Roman law obviously do not refer in the least to astronomical tides, or whether the floods have come as a result of the pull of the moon or of action of the winds, or of a combination of both.
It is my opinion that the Balli case merely holds that under the evidence in the case there was no substantial difference in fact between the line of “high winter tide” and the line of “mean high tide.” In other words, if there had been any evidence in that case of a substantial difference in the location of the line of “high winter tide” and “mean high tide,” unquestionably the line of “high winter tide” would have controlled.
It is understandable that the state failed to concentrate on making proof as to the true shore line in the Balli case when it is realized that the chief contest in that case was centered around the question of ownership of the whole of Padre Island containing over thirty leagues of land. The evidence on the question of the shore line was very meager from both sides. *209There was no evidence about winter’s highest waves, no evidence of the year’s highest swells whether summer or winter, no evidence of the highest tide during any part of the year. The Court of Civil Appeals in the Balli case, 173 S.W. 2d 522, pointed out that under the evidence introduced the theoretical difference in elevation between mean high tide for the whole year and mean high tide of the winter months was .09 of a foot. The state devoted very little space in its brief filed in the Supreme Court on this question, and this court affirmed the Court of Civil Appeals on this point in very short order.
Permit me to emphasize that this court in the Balli case did not hold that the civil and common law were the same on the question of establishing the true shoreline. The cases are abundant which hold to the contrary. In addition to those heretofore mentioned and discussed, I specially mention Heard v. Town of Refugio, 129 Texas 349, 103 S.W. 2d 728, wherein this court, speaking through Justice Smedley, said: “By the rule of the civil law private ownership of land along the coast stops at the line of the highest tide in winter, whereas the rule at common law restricts grants to the line of ordinary high tide.” The court also said: “Presumption and the policy of the Mexican Civil Law favor public ownership.” In the case of Borax Consolidated v. City of Los Angeles, 1935, 296 U.S. 10, 22, 56 Sup. Ct. 23, 29, 80 L.Ed. 9, the United States Supreme Court through Chief Justice Hughes said: “By the civil law, the shore extends as far as the highest waves reach in winter. [Citing both Justinian’s Institute and the Digest]. But by the common law, the shore ‘is confined to the flux and reflux of the sea at ordinary tides.’ ” For other references see: Angell (2d ed. Rev. 1847) p. 68; Rosborough v. Picton, 12 Texas Civ. App. 113, 34 S.W. 791, quoted with approval by this court in Hynes v. Packard, 92 Texas 44, 45 S.W. 562; The opinion of Judge James V. Allred, Federal District Judge, in the case of Sun Oil Company v. Humble Oil & Refining Company, supra. In that case on rehearing, 191 Fed. 2nd 705 at page 716, (certiorari den. 342 U.S. 920, 72 Sup. Ct. 367, 96 L.Ed. 687, the court cited with approval the Menard case, supra, in holding that under the Spanish law, the seashore extends to the line of the highest tide in winter. The court went on to hold that the area in controversy was formerly the bed of the sea and that the sea had not abandoned the area. It remains for the Court of Civil Appeals to decide the issue. Petitioners contend that it has discharged its burden, but the question of evidence is not for this court to pass upon.
*210In the case of City of Galveston v. Menard, 23 Texas 349, this court said: “By the civil law, the shores of the sea, of bays and navigable streams generally, as well as the tidewaters, were jealously guarded from private appropriation and reversed for the common use * * *.” This holding has come to have a meaning of greater significance and consequence due to modern-day developments as the result of geological surveys definitely establishing the fact that oil is beneath the point of civil law tide. The rule announced by Judge Oran Roberts in the Menard case, supra, should be strictly followed in order to protect the Permanent Free School Fund of Texas. There is no logical reason to adopt the more liberal common law rule and thereby permit private appropriation of valuable lands to the injury of the State of Texas. The majority cites the case of Barney v. City of Keokuk, 94 U.S. 324, 24 L.Ed. 224. A study of that case as well as the cases of McManus v. Carmichael, 3 Iowa 1, and Haight v. The City of Keokuk, 4 Iowa 199, has convinced me that the common law was never intended to apply to streams and bodies of water in this state. It is my contention that the state in our case has not chosen to relinquish to private parties title to the lands which belong to it under the civil law which was in effect at the time of the grant in 1838 or 1839, the date of the survey.
Art. IV, Sec. 13, of the Constitution of the Republic of Texas, provides as follows:
“The Congress shall, as early as practicable, introduce, by statute, the common law of England, with such modifications as our circumstances, in their judgment, may require; and in all criminal cases, the common law shall be the rule of decision.”
This adopted the common law as the rule of decision in criminal cases and directed Congress to “* * * introduce, by statute, * * *” the common law modified to meet “our circumstances.”
It could not be more clearly stated that the Constitution was then adopting the common law in criminal matters and was not adopting the common law in civil matters because Congress recognized that the common law needed to be modified to fit the needs of Texas.
I would reverse the judgment of the Court of Civil Appeals and remand the cause to that court for further consideration.
Opinion delivered July 18, 1956.
Rehearing overruled October 24, 1956.