recognizing the “ancient maxim that seashore is common property and never passes to private hands”
How later courts described this case
- recognizing the “ancient maxim that seashore is common property and never passes to private hands”
- concluding that accretion by the sea was governed by same rules as accretion by rivers
- “On January 19, 1830, Juan Jose Balli . . . conveyed to Santiago Morales his original one-half of Padre Island, together with one-half league more that he had acquired by inheritance from his uncle, the Priest Nicolas Balli.”
Written by the judges who cited it.
The opinion
I am of the opinion that respondents should be permitted to recover only 11 1/2 leagues of land off the East side of Padre Island, and I therefore concur in the dissent by Mr. Justice Sharp.
At the time this case was originally presented the Attorney General contended that respondents were not entitled to recover any part of Padre Island. No emphasis was placed on the assignment that respondents were entitled to recover only a part of the island. On the motion for rehearing it is now urged that *Page 279
respondents are entitled to recover only 11 1/2 leagues, and I am of the opinion that this contention should be sustained.
I summarize my views as follows:
At the time Balli and his nephew negotiated for the purchase of the land from the Mexican Government in 1828 the law permitted one person to purchase only six leagues of land. Balli and his nephew could purchase only twelve leagues.
The Mexican Government had the land inspected two or three times in order to ascertain definitely the quality of the land to be conveyed to the purchasers and the price to be charged therefor. De la Fuente made the survey of the land for Balli and his nephew and the Mexican Government in 1828. His field notes included only 11.15 leagues off the East side of the island.
While de la Fuente's field notes definitely call for the east or Gulf side of the island at the east boundary of the land to be granted to Balli and his nephew, there is only one call for the west or Laguna side of the island, and that is at the north end of the island where it is very narrow. The survey was made by beginning at the north end of the island and going south along the east side thereof and measuring — by stretching a cord — from east to west part of the way across the island at intervals of approximately five miles each. The length of these measurements from east to west were given. The amount of the land included in the survey was ascertained by assuming an imaginary line from north to south connecting the extreme west ends of the cords stretched across the island. Many of the measurements from east to west did not extend halfway across the island according to the present dimensions of the island. When Miller and Bourland inspected the island in 1852 they found that it contained more than thirty leagues of land. In fact, at the time Balli and his nephew were negotiating for the purchase of the land in 1828 they admitted that the island contained over nineteen leagues. The survey made by de la Fuente for the land to be set aside to Balli and his nephew contained only 11.15 leagues. It is apparent, therefore, that the survey made by de la Fuente included only a narrow strip of land along the east side of the island. The footsteps of the surveyor can be followed and the land located.
After de la Fuente completed his survey Balli and his nephew paid for only 11.15 leagues. *Page 280
The successors to Balli and his nephew were unable to find the title papers to the land, but they were able to produce a receipt showing that they had paid the Mexican Government for 11.15 leagues. As a consequence they applied to the Texas Legislature for relief. In 1850 the Legislature of Texas appointed a commission composed of Miller and Bourland to investigate the claim and report back to the Legislature. Miller and Bourland reported in part as follows:
"We recommend for confirmation 11 1/2 leagues only, to the heirs or assigns of original grantee, for we feel confident that the island called `Padre Island' contained or embraces over 30 leagues of land. It is therefore to be understood that we recommended only 11 1/2 leagues of said land. For testimony in this case see File No. 37, Cameron County." (Emphasis mine.)
It will be noted that in 1852 the commissioners were of the opinion that Padre Island contained over thirty leagues of land. However, they recommended that the applicants be granted only 11 1/2 leagues. The Legislature subsequently granted "11 1/2 leagues called Padre Island."
Since under the Mexican law as it existed at the time the parties negotiated for the purchase of the land, Balli and his nephew could purchase only twelve leagues of land; and since their field notes called for only 11.15 leagues and they actually paid for only 11.15 leagues; and since Miller and Bourland recommended to the Legislature of this State the approval of a grant of only 11 1/2 leagues, and the Legislature granted only 11 1/2 leagues or approximately 51,000 acres, I am unwilling to approve a judgment for 30 1/2 leagues, or approximately 135,000 acres, of land.
I am not in accord with the majority opinion granting the whole of the island to the respondents.
I concur with the view of the majority on the law of accretions, but I do not consider a decision on this question decisive of the question involved in this case.
Opinion delivered November 7, 1945. *Page 281