This suit was brought for the State of Texas by its attorney-general, acting presumably under the Act of 1891, to recover the tract of land lying on the Rio Grande River, in Webb County, commonly known as the "Balconcitos." In the suit it was sought to cancel a patent which had been issued by the officers of the state, the claim being that the patent was issued without authority of law and was therefore void.
The defendants being unable to show any direct documentary evidence of a grant sought to establish such grant by circumstantial evidence. They sought to show, that previous to the year 1804, the King of Spain granted to one Joaquin Galan, the tract of land fronting on the Rio Grande River, upon which the town of Palafox was afterwards laid out; that Galan, the grantee, conveyed the grant to one Manuel Garza; that *Page 483 subsequent to this conveyance in the year 1810, the King of Spain being desirous of establishing the municipality of Palafox, expropriated that part of the Galan grant which fronts on the river, and as a compensation to Garza granted to him the "Balconcitos" tract which lies also on the stream immediately above the first grant.
To establish these facts, the defendants relied in part upon a judgment of the District Court of Webb County, rendered in a cause entitled Daniel Ruggles v. The State of Texas. That suit was brought by the plaintiff under the Act of February 11, 1860, to establish title to the alleged Joaquin Galan grant. We copy so much of that judgment as is pertinent to the issues in this case. After reciting that it appeared to the court that some time previous to the year 1804, the Government of Spain granted to Joaquin Galan a large tract of land on the Rio Grande, giving its field notes, the judgment proceeded: "It further appeared to the court by original authentic documents that in the year 1805, said Joaquin Galan sold the said tract of land to one Manuel Garza, who settled upon the same and occupied it for many years, and that about the year 1810, the Government of Spain being desirous of forming a town on the river bank where the said Manuel Garza had planted his said rancho, the said government did then and there condemn and take from the said Manuel Garza for the use of the government, all that part of his said tract of land lying and fronting on the Rio Grande to the depth of six Mexican leagues, and did then and there lay out and establish the town of Palafox on the eastern bank of the Rio Grande, with its exidos extending across the same, and gave and donated the lands above and below the said town to the settlers in the form or shape of porciones, running back for depth six Mexican leagues, or 30,000 varas, and that for the said condemnation the said Manuel Garza was reimbursed in lands lying above the town and jurisdiction of Palafox. It further appeared that the jurisdiction of Palafox extended five leagues above and the same distance below the center of the plaza of the said town, which, or a part of the same, were granted in porciones to the settlers; it further appeared that about the year 1818, the hostile Indians, in large numbers, surrounded the said town of Palafox and destroyed the same by fire and drove off the stock and broke up the said settlements; it further appeared by the testimony of old and respectable citizens of Laredo, that they knew of the titles to the land in question, and by one of them that he had read said titles and knew the landmarks called for in the same; that when the town was destroyed, all the archives of the same were burnt, most of the inhabitants were killed, and only three or four houses escaped being burnt by reason of dirt roofs, the inmates escaping in the night; it further appeared that the regions of these lands is and since said occurrence has been an Indian range, and to this day unsafe for settlers; it further appeared to the court that subsequently to the destruction of said Palafox some of the heirs of Manuel Garza, deceased, sold their rights in said lands to Daniel Ruggles, the petitioner in this case; all of which said facts having been proven to the satisfaction of the court by many of the oldest inhabitants of the towns of Palafox and Laredo; it is in consideration of the premises hereby ordered, adjudged and decreed by this court that the said ancient *Page 484 title of Joaquin Galan to the said lands be confirmed to him, his heirs and assigns (except the part which was condemned to the use of the settlers), in the following manner, to wit: (Describing boundaries.) And that they have and recover from the State of Texas all the lands embraced within the aforesaid boundaries, constituting and making ____ leagues of land, to be surveyed by the proper officer and the field notes to be returned unto the general land office of the state with all convenient speed; that the plaintiff in this suit be condemned to pay all costs of this suit and the fees and charges provided by law; all of which in accordance with the provisions of an act of the legislature of this state, entitled `An Act to ascertain and adjudicate certain legal claims for lands against the state, situated between the Nueces River and the Rio Grande,' approved February 11, 1860."
It appears that Daniel Ruggles, in the suit in which that judgment was rendered, claimed title under Manuel Garza; and it also appears in this case that the defendants claimed title to the land in controversy through Ruggles, who also claimed title to the latter tract through Garza. So it is apparent that the state was a party in each of the suits, and that while Ruggles was the adverse party in the first, his privies were the adverse parties in the present suit. Therefore, the decision of any question of fact in the first suit, the determination of which was found necessary to the judgment of that suit, is conclusive as between the parties to this action. The pleadings in the case of Ruggles v. The State do not appear in the record before us; but the recitals in the judgment leave no doubt as to the issues presented and decided in that case. The plaintiff contended that the land there in controversy had been granted to Joaquin Galan by the King of Spain and that he held Galan's title. These issues were decided in his favor because he was given judgment for the land except for so much thereof as was covered by the town of Palafox. On the other hand, it must have been contended on behalf of the state, that even if there had been a valid grant, so much of the grant as was covered by Palafox had been lawfully expropriated, and therefore the plaintiff was not entitled to recover that part of the grant. Now, if it were the law of Spain in 1810, the year of the establishment of Palafox, that before an expropriation could be completed the owner of the property sought to be taken for a public use had to be first compensated or indemnified, then as we think it became material for the state in the Ruggles case to show that the portion of the Galan grant upon which Palafox was laid out was not only declared expropriated, but that Manuel Garza, the owner at the time of the expropriated land, had received compensation. That this vigorous rule of natural justice was the rule of the Spanish law, the meagre authorities accessible to us leave no room for doubt. (Escriche's Dictionary; Verbos, Bienes Particulares.) The law seems as old at least as the Partidas. (2 Codigos Españoles, Segundo Partida, Ley 2, title 1, pp. 2,320, in which is defined the powers of the sovereign. 3 Codigos Españoles, Ley 31, title 18, 2 Partida, p. 200; also 6 Febrero Reformado, p. 314.)
Therefore, as we think the judgment of the District Court of Webb County, rendered in 1862, in the case of Ruggles against the state, establishes as between the parties and their privies these facts: (1) that *Page 485 there was a valid grant of the lands upon which the town of Palafox was subsequently laid out to Joaquin Galan, (2) that the title to the land passed to Manuel Garza, (3) that in 1810 the government, for the purpose of establishing that town, expropriated a part of the grant, and (4) at the same time gave compensation to the owner, the findings of these facts were material to the determination of the issues involved in that case, and therefore fall within the rule announced in O'Connor v. The State (96 Tex. 492). The facts found in the Ruggles case became "directly involved in" and "were necessary to the determination of the issue presented to that court."
The facts thus established — namely, that Manuel Garza's land was expropriated and that compensation was made to complete the condemnation — show a just foundation for the grant claimed. They suggest that the compensation for the lands taken was a grant of other lands in lieu thereof. As we gather from law 2, title 1, of the Second Partida, before the king could rightfully take property, he had either to pay in money, or give something in exchange of equal or greater value than the thing taken. (2 Codigos Españoles, 520.) Since in that jurisdiction the government had large bodies of unappropriated public domain and perhaps but little money, it seems very reasonable that the compensation should have been made in other lands adjacent to the expropriated lands and the remainder of the Galan grant. The recital in the judgment of 1862 in the case of Ruggles against the state, that "Manuel Garza was reimbursed in lands lying above the town and jurisdiction of Palafox," if taken as true, shows that this was a fact, and that at least Garza was compensated by the grant of other lands, although, as we have held, the determination that compensation was made for the expropriated land was necessary to the determination of one of the issues in the Ruggles case, it was hardly material to prove in what the compensation consisted. Therefore, we are not prepared to hold that the finding of the court upon that matter was conclusive upon the parties. But we think since this judgment was rendered, nearly forty years before the present suit was instituted, the recital may be looked to as evidence, rebuttable though it may be.
Still, taking the facts which we think were established and the further recital which we think should only be looked to as evidence as unrebutted, they fall short of showing that the tract known as "Balconcitos" was the land given in compensation for the expropriated lands.
Let us then look further. Several witnesses testified as to the occupancy and claim of "Balconcitos" by the heirs of Manuel Garza. They were very old people, and it appears that they testified as to the conditions as they existed at or about the time of their earliest recollection. Some of them at least testified that the claim was that the land had been granted to Garza by the king of Spain.
On February 10, 1852, an act of the legislature was approved, which relinquished the title of the state to certain lands therein specified, which lie in certain counties in the southwestern part of the state, and authorized their survey and patents to be issued therefor. Among other lands therein mentioned is "3 heirs and assigns of Joaquin Galan, one porcion jurisdiction of Palafox." Purporting to act under the authority of this *Page 486 act, one Trumble, as district surveyor of the District of Webb County, made a survey of the land in controversy, which he called a resurvey, which gives the field notes of the survey calling for natural and artificial objects which fix the corners and boundaries of the tract. We do not think that by the description above given, the legislature intended to point out the Balconcitos tract. In the first place, it is not claimed that that tract was granted to Galan, but to Garza, his vendee. In the second, while "porcion" as applied to land is not a technical term (see word in Escriche's Dictionary), and means no more than portion or parcel in English, we incline to think the usual application of the word in the old Spanish grants along the Rio Grande was to the parcels ordinarily set aside to the settlers of new towns, such as Laredo and Palafox. Besides, the "porcion" here mentioned was in the jurisdiction of Palafox, and we do not understand that "Balconcitos" was within that jurisdiction. We think, however, the survey is material since it shows a claim asserted at that time, and also indicates that the tract had been previously surveyed.
According to the testimony of the Commissioner of the General Land Office, the survey in question is shown upon a map in the land office, which appears to be the oldest map on file in his office as to the surveys therein shown. It is, however, marked in the name of Joaquin Galan. This discrepancy is reasonably accounted for by the fact that the land, although granted to Manuel Garza, was granted in exchange and compensation for a part of the Galan grant. Being in the nature of a substitution for a part of a grant originally made to Galan, it may not inappropriately have been treated as a part thereof. Both the original grant and "Balconcitos" proceeded from the one consideration.
Again, a joint committee of the Senate and House of Representatives having been appointed to examine and report upon certain proceedings in the District Court of Webb County in which the titles to the original Galan Grant and "Balconcitos" were involved, such committee made their report. The duties required them, among other things, to investigate the action of the court in regard to those surveys, which was taken after the judgment of 1862 in the case of Ruggles against the state for the recovery of the Galan grant. After setting out that the two suits had been brought by Ruggles against the state, one for the recovery of the Galan grant, and the other for the recovery of the Balconcitos, the report proceeds: "That the district attorney filed answers in said causes, and on the 8th day of January, 1862, one of said causes, No. 14, was tried on the merits and judgment entered therein at length on the minutes of the court, from which it appeared that the whole of said tract was granted to one Joaquin Galan by the Spanish government, about or before the year 1805, who sold said land to one Manuel Garza; that afterwards the town of Palafox was founded by the Spanish government, and a portion of said town was laid off on the front of this tract of land and extending across the Rio Grande, and the municipal jurisdiction of said town extended up and down on the front of said land for some six leagues. That the said Garza, the grantee of said Galan, received in compensation from the government other lands, called "Balconcitos," above and adjoining the lands in the suit tried, and that these lands so *Page 487 received in compensation for the Palafox lands were the lands embraced in the other petition, No. 11, before mentioned." This evidences a completed grant of the land in controversy to Manuel Garza, and is consistent with all the other testimony relied on by defendants in error. Is there any sufficient testimony in the record which satisfactorily rebuts the facts so recited in the report of the joint committee?
First, it is urged in behalf of the state, that no documentary evidence contemporaneous with or nearly contemporaneous with the alleged grant, which tends to show that any such grant was ever made, has been produced. This is usually the case in similar controversies, and we think that the most that can be required under such circumstances is to show a reasonable probability that the documents may have been lost or destroyed. Here it appears that shortly after the time of the alleged grant the country was raided by hostile Indians, the inhabitants killed or driven away and their houses burnt. (See Texas Mexican Ry. Co. v. Uribe,85 Tex. 386.)
It is also insisted in behalf of the state that the claim for Balconcitos was not presented to Bourland and Miller — a commission who were appointed under an act of the legislature to receive and report upon unsettled land claims in Webb and other counties. The testimony of the Commissioner of the General Land Office leaves it uncertain whether the claim for "Balconcitos" was one of those presented to the commission. But at all events, we think, that if presented, it was for some reasons not finally approved. But conceding that it was not presented, we think that under the facts, so far as we know, it was a circumstance of very little weight. That commission was appointed forty years after the alleged grant. In all human probability, the grantee was then dead and some of his heirs may have been minors. The others were most probably Mexicans, ignorant of the laws, and if living upon the land as the testimony tends to show, resided many miles from the county seat of the county and from access to legal counsel. Besides, if there be anything in the evidence in the case that the right of Garza's heirs had up to the appointment of the commission referred to, ever been challenged, it has not been pointed out.
We have already considered the fact that upon the old map in the General Land Office the "Balconcitos" tract is marked in the name of Galan, and have endeavored to show that it was not consistent with the claim here asserted by defendants in error.
Since, as has been adjudicated in O'Connor v. The State, supra, the judgment of 1872 was void for want of jurisdiction in the court which rendered it, we are of opinion that neither it nor its recitals should be looked to for any purpose.
The case is like that of the Texas Mexican Railway Company against Uribe (85 Tex. 386), in which we held that the evidence showed conclusively that there was a grant from the king of Spain. (See also, Von Rosenberg v. Haynes,85 Tex. 357.) The present case is weaker it is true, in that here, as has been pointed out, there is no contemporary nor nearly contemporary documentary evidence of the asserted grant. The possession, the interruption of that possession and the excuse therefor, *Page 488 are very much the same. Yet we have some more potent circumstances in this than in the cases cited.
We granted the writ of error in this case upon a misconception of the facts. Upon a more thorough consideration of the evidence, we more fully agree with the Court of Civil Appeals, and hold that the evidence shows conclusively that the "Balconcitos" — the land in the controversy — was granted to Manuel Garza in the year 1810.
Therefore, the judgment of the Court of Civil Appeals, which reversed the judgment of the trial court and rendered judgment for the defendants, is affirmed.
Affirmed.