1. Where an early Spanish petition for a grant of land described
the land by general boundaries which were capable of an
interpretation in two senses, one broader than the other, the terms
of boundary open to question as to meaning were held to be rightly
interpreted by the jury from a survey carefully made on the ground
by lines and monuments and specifying the quantity within the lines
(the grant referring to the survey and specifying the quantity
granted), and by practical interpretation, from occupancy and
otherwise, by the parties interested in the matter.
2. In settling, in such a case, what has been granted, the
quantity of land specified, as well as the boundaries named, and
the survey as made all are to be considered, and by their united
light the proper conclusion is to be reached.
3. The practical interpretation which parties interested have by
their conduct given to a written instrument, in cases of an ancient
grant of a large body of land asked for and granted by general
description, is always admitted as among the very best tests of the
intention of the instrument.
4. In construing such a grant, the circumstances attendant at
the time it was made are competent evidence for the purpose of
placing the court in the same situation and giving it the same
advantages for construing the papers which were possessed by the
actors themselves.
5. A document duly certified, "in the absence of a notary
public, according to law," in the presence of witnesses, by the
alcalde of the jurisdiction, to be a true copy, made and compared
by witnesses named, of the original
Page 73 U. S. 774
record of proceedings had in the adjudication of lands granted
by the government to persons named (in which proceedings it became
necessary to ascertain a particular boundary line) was held to have
been properly received in evidence in this case under certain
statutes of Texas on a question relating to that boundary, the
alcalde's official character and signature and that of the
attending witnesses being proved, and that they were dead.
In 1776, Salvador de la Garza "denounced" -- that is to say,
made application to the authorities of New Spain for a tract of
land north of the Rio Grande -- in the now State of Texas called
sometimes the "Agostadero," and sometimes the
"Potrero" of the
Espiritu Santo. [
Footnote
1] The lands asked for were described as bounded
"on the east with the lagunes
(lagunas) of the sea; on
the west by a thick wood; [
Footnote
2] on the south by the margins of the Rio Grande, and on the
north by a ravine which comes out of the sea."
In June, 1779, the proper officer proceeded to take testimony as
to the possession had of the land by Salvador and of its boundaries
and character. There were five witnesses. They stated that the
"potrero" asked for had as its boundaries and outlines (linderos),
the Arroyo Colorado, [
Footnote
3] the
lagunes, the Rio Grande, and a thicket wood;
three witnesses saying, "the lagunes," one saying, "the lagunes of
the sea," and one, "the lagunes immediately communicating with the
sea." The possession of the applicant being satisfactory to the
judge, that officer proceeded, in company with Salvador, to make an
actual survey. The surveyor's record of this operation first
describes the nature of the ground as fit only for grazing, on
account of the many marshes made by the tides of the sea, and
freshets of the Rio Grande and Colorado; that
Page 73 U. S. 775
image:a
Page 73 U. S. 776
it had in many places a sort of grass which animals would not
eat, "which usually grows on salt marshes near the coast of the
sea," on which account (with others set forth),
"it is only useful as regards horses and all other stock,
by
the security which and protection which is afforded, on account of
the potrero's having but one entrance and exit through the dense
thicket which runs across it from the Colorado to the Rio
Grande."
The record then states that the survey begins at a watering
place for cattle on the Rio Grande in the southwest corner of the
tract, and that the first line ranged from it, course east, going
in a straight line from it, "along the banks of Rio Grande, down
the stream," 584 cords, at the river, at a slough
(derrame), from it, by which in its freshets it supplies a
tank with water, "which was left lay above; bore up stream at a
distance of six cords, which slough was left as a natural
landmark," and a monument fixed; there remaining -- the record said
-- on this line, to the south, recesses and elbows formed by the
Rio Grande, which "the surveyor would notice hereafter." [
Footnote 4] This was one day's
work.
The second day's record of the surveyor's action was thus:
"In the said place of the slough of the river in which ended the
first line, he ran the second line straight to the north, and at
206 cords we came to the head of one of the lagunes of the sea,
besides others that were seen to the east, and having gone round
the head of this first one and various others which succeeded,
communicating with each other, following always the north course,
the surveying cord came to a little pocket or meadow which the said
lagunes make, these laying on the west and east until they reach
'Lagunas Madres,' which are formed by the Arroyo Colorado
and into which its waters empty, there being far within this line
(something more than a league) a place improved . . . ; and there
being no more land on account of our having reached the said
Lagunas Madres, and having nothing before us but water, the second
line amounted to 993 cords in the whole. "
Page 73 U. S. 777
The third day recorded that in the place on the Colorado where
it expands into the broad lagunes (Lagunes Madres), the surveyor
began the third line, running up the stream, course west &c.,
584 cords, the same number with the line on the Rio Grande, a part
of the line, owing to impassable ravines, thicket &c.,
described, being conjectural.
A fourth line, in part conjectural, to the watering place,
closed the survey.
The surveyor, noting that he had estimated the elbows made
between the first line and the Rio Grande, declared that "within
the four said lines were contained 59 square leagues
(sitios de
ganadas mayor) and 11 1/2 caballerias of land."
After the survey was completed, the attorney of the Treasury
advised the granting of the "59 sitios de ganadas mayor and eleven
and a half caballerias of the Potrero Espiritu Santo, under the
natural outlines which the surveys state," and a grant itself was
made to Salvador in due time afterwards (September 26, 1781), of
the same quantity of land, described in the same words, "within the
limits of the colony of New Santander, and not exceeding its
natural boundaries."
Salvador took possession, and lived on the tract till 1802. In
that year he died, leaving three children, to whom his estate went,
as it seemed, equally, and to the rights of one of whom, Cavazos,
the present plaintiff, succeeded.
Salvador appeared to have had different ranches on this tract
and to have exercised more or less possession over various parts of
it.
In 1829 one Trevino, who, as it was said, truly or not so, had
been but an agent of some of the children or grandchildren of
Salvador, joining himself with some other parties, occupants of the
soil, and, as was attempted to be proved, co-owners with the
plaintiff of the undivided whole, applied to the state authorities
of Tamaulipas and got grants for the parts which lie east of the
line marked on the map as the surveyor's line, tracts designated as
San Martin, Sta. Isabel, and Buena Vista. Cavazos, who, as already
said, had succeeded
Page 73 U. S. 778
to the rights of one of Salvador's three children, now brought
trespass to try title to the third of a part east of the line and
to recover possession, the question in controversy being the
eastern boundary of the tract, and this perhaps being complicated
by the fact that there was on most of the eastern side of the tract
a long body of water, called the
Laguna Madre, made by a
long narrow island, running outside the shore (a place likened by
counsel somewhat to Long Island Sound), and also numerous smaller
lagunas, running into the coast. Whether the land ran
to
the
shore, which brought it to the Laguna Madre, and in
one sense to the
seashore, and in one to the laguna of the
sea, or only to the little lagunas, which might in one sense be
called the lagunes of the sea and in another but lagunes of the
sound or Laguna Madre, this was a question. One part of the strip
-- a part between the mouth of the Rio Grande and the Boca Chica --
was
on the sea; no lagune running beside
it.
The plaintiff adduced witnesses to show occupancy by Salvador
with more or less specific assertion of title over every part of
the tract; that by the term "potrero" was meant a place so enclosed
by natural boundaries as that cattle put there to graze could not
easily get out of it; that the tract derived its chief advantage to
Salvador from its thus being a potrero; that it could only be so by
coming to the water's edge along its whole eastern line; that it
was not customary in early Spanish surveys to meander along either
rivers or curved shores, but to make elbows and estimate; that if
the surveyor had gone to the
mouth of the Rio Grande and
then north, he would have run into the sea; and that if he had
meant to run the eastern line in a convenient way, and to survey by
running base lines by cardinal points, the land enclosed by the
thicket, the Rio Grande, the lagunes, and the Colorado, he would
have run the lines much as he did; and finally, to show that
according to general reputation the property of Salvador was a
potrero, a place for grazing enclosed by four natural
boundaries. As matter of argument, he relied on the principle of
law that parties are never presumed to leave a narrow strip between
land and
Page 73 U. S. 779
water merely because certain stakes or trees stand at a slight
distance from the river.
The evidence of the defendants was to prove long adverse
possession on their part up to the surveyor's line; that the term
"potrero" did not mean so absolutely as was asserted an
enclosure for feeding cattle; that whatever Salvador had
asked for or desired, this was controlled by the survey actually
made and the monuments fixed; that it was impossible to regard as
unmeaning the fact that the surveyor had made no reference to such
monuments as the mouth of the Rio Grande and the shore of the Gulf
of Mexico.
In the course of the trial, the plaintiff excepted to the
admission and to the exclusion of various testimony, and on its
conclusion to instructions given and to those refused by the court.
All these, and what is further necessary to be known of the case,
are stated by the learned justice who gave the opinion of the
court.
MR. JUSTICE SWAYNE delivered the opinion of the Court.
The plaintiff in error brought an action of trespass in the
court below to try the title to the real estate in controversy
between the parties, and to recover possession. There were numerous
defendants. The suit was dismissed, or judgment by default rendered
as to all of them but the two who are before us as defendants in
error.
The plaintiff sought to recover an undivided third of the
premises, which are claimed to be a part of the tract known as the
Agostodero, "and the potrero of the Espiritu Santo grant," situated
between the Arroyo Colorado on the north, the Rio Grande on the
south, and extending from a thick wood on the west to the lagunes
of the sea on the east. The real controversy between the parties
was as to the locality of the eastern boundary line of this
tract.
The land in controversy lies between that boundary as claimed by
the defendants in error and the sea and lagunes communicating with
the sea.
Page 73 U. S. 780
The plaintiff deraigned title by a grant from the authorities of
New Spain, of the 26th of September, 1781, to Jose Salvador De la
Garza, containing fifty-nine leagues and eleven and a half
cabellerias of land.
The defendants claimed under a grant made by the authorities of
the state of Tamaulipas, by a title of possession issued to Ignaceo
Trevino, on the 26th of February, 1829, and confirmed by a final
title issued by the governor on the 29th of May, in the same year.
The defendants insisted that the western boundary of the land
embraced in this grant was the same as the eastern boundary of the
tract granted to De la Garza, as they alleged that boundary to be,
while, according to the plaintiff's claim, all the land granted to
Trevino was included in the prior grant to De la Garza.
The court instructed the jury substantially:
(1) That the question in controversy was the true eastern
boundary of the Espiritu Santo tract, and that it was a question of
fact to be determined by the jury upon the evidence before
them.
(2) That it was their duty to consider all the testimony bearing
upon the subject.
(3) That if those claiming under the Espiritu Santo grant had
never been in possession east of the line claimed by the defendants
-- had acquiesced in that line, and set up no claim inconsistent
with it, until within a comparatively recent period -- those facts
were proper to be considered by the jury.
At the request of the defendants, the court further charged:
(4) That the grant itself shows that a corner was established at
the derrame or slough, 548 cords from the beginning corner, whence
a line was run north by the tanque mentioned in the grant to a
pocket or small potrero on the Laguna Madre, where another corner
was established, and that this was to be considered the east
boundary, unless another one was established by the evidence.
(5) That if Trevino and those claiming under him had held
adverse possession up to the line run for the western
Page 73 U. S. 781
boundary of the San Martin grant to the time of the commencement
of the action -- being a period of ten years or more -- in good
faith under a just title, then the jury should find for the
defendants.
(6) That if Trevino and those claiming under him had held
adverse possession of the land in controversy for twenty years and
more before the commencement of the suit, then the jury might
presume a valid grant giving title to the land claimed.
(7) That if the jury find there never was any contest before the
commencement of this suit between the owners of the Espiritu Santo
grant and Trevino -- except as to boundary -- being a dispute
whether the true line was that run in 1781, or that of 1828 run for
the western boundary of the San Martin grant -- and that Trevino
and those claiming under him had possession up to 1828, adversely
to those claiming the adjoining land in the Espiritu Santo grant,
and up to the commencement of the suit, the jury may presume that
the land within the line of 1828 belongs to the San Martin
grant.
To all these instructions the plaintiff's counsel excepted.
The plaintiff's counsel then asked the court to instruct the
jury:
(1) That if they find that the Espiritu Santo grant included the
land in controversy, then no adverse possession, subsequent to that
grant, can authorize the presumption of another and an adverse
grant.
The court refused to give this instruction, and an exception was
taken.
The plaintiff's counsel thereupon asked the court further to
instruct the jury:
(2) That a party in possession under an undivided grant of a
tract of land, and claiming the whole under a paramount title, is
in possession of the whole, and is not affected by an adverse
possession of a part, claimed and held under an inferior title or
without title, and that the person holding under such inferior
title can have no protection from the statutes of limitation or by
prescription.
Page 73 U. S. 782
This instruction was given, but at the request of the counsel
for the defendants, it was modified as follows:
(3) That if Trevino and those claiming under him had exclusive
possession for twenty years or more, east of the boundary line in
dispute, then a grant may be presumed to him, though the Espiritu
Santo grant is the elder one, and there has been possession under
it west of that line.
To this modified instruction the plaintiff excepted.
The jury found for the defendants, and found further,
"that the eastern boundary line of the Espiritu Santo grant of
1781, is a line commencing at the mouth of the derrame of the
tanque on the Rio Grande, and thence running north to the pocket
described in said grant."
The plaintiff thereupon moved for judgment
non obstante
veredicto for so much of the premises in controversy as lies
east of the line established by the verdict, and west of the line
of 1828, being a gore, containing, according to the testimony of
one of the witnesses, about nine leagues of land. The court
overruled the motion and the plaintiff excepted.
Exceptions were also taken by the plaintiff to the admission and
to the exclusion of testimony, which will be stated specifically
when we come to consider them.
It is insisted by the plaintiff in error that the court erred in
construing the documentary evidence relating to the eastern
boundary of the Espiritu Santo grant, and that it adopted the
theory of the defendants. We do not so understand the charge as to
the latter point. It is somewhat confused both in thought and
language, but its general effect is clear. It left the question to
the jury, to be determined according to the evidence, without any
controlling instructions upon the subject. They might consistently
with the charge have found the line claimed by either party to be
the true one. If any error was committed by the court against the
plaintiff, it was in not recognizing, as matter of law, the line
insisted upon by her, instead of submitting the question to the
jury.
Did the court err in withholding this recognition in the
charge?
Page 73 U. S. 783
The denunciation, and the identification of the line by the
witnesses, describe it as bounded on the coast by the lagunes of
the sea. The most important testimony is the survey, the facts
attending it, and the subsequent links in the chain of title. The
survey was made with great care and formality. It commenced at a
watering place on the Rio Grande, in the southwest corner of the
tract. The first line was run 584 cords down the river to a slough,
near a tanque, which was filled from the river during high water.
This slough was designated "a natural landmark," and the denunciant
was ordered to place there an artificial monument. From this point,
the next day, the second line was run due north. At the end of 206
cords, the surveyor came to the head of one of the "lagunes of the
sea" -- others were seen to the east. Having gone round the first
and others that succeeded, following always the north course, the
line reached a little pocket or meadow made by the lagunes. They
were found to extend to the lagunes madres which were formed by the
Arroyo Colorado. Having reached the lagunes madres and there being
nothing before them but water, the surveyor there terminated the
line of that day, which was found to be 993 cords in the whole in
length. "The bend or little pocket before mentioned," it is said,
"remained as a natural landmark." An artificial one was also placed
there. Owing to natural obstacles, the other two boundary lines
were designated without actually running them. The last one
terminated at the beginning corner. According to the rule of the
Spanish law, where a survey is intended to bound on a stream, a
straight line was run from the beginning point to its termination
at the slough, and the quantity of land in the bends of the river
was ascertained by computation without actual measurement. The
slough was about five leagues from the mouth of the river. If it
were intended that the eastern boundary should be the shore of the
sea, and of the lagunes connected with it, why was the first line
terminated at the slough, and why was a line run due north from
there? Why was not the first line extended to the mouth of the
river or to a point nearer to it, and a line run thence to the
Page 73 U. S. 784
north. The lagunes of the sea, and not the shore of the sea, is
called for as the boundary on that side. The proof shows that those
lagunes could form such a boundary only in part. There is no
controversy that the Rio Grande is the south boundary. The proof
shows also that from the mouth of that river north it is several
miles to the Boca Chica, which is the first lagune found there. For
the intervening distance the shore of the sea, and not lagunes of
the sea, must be the boundary according to the claim of the
plaintiff in error. There is nothing which shows that the land
lying between the east line as run, and the shore of the sea, and
of the lagunes communicating with the sea, was included in the
computation, or that the grantee had not his full quantity without
it.
The attorney of the Treasury advised the granting of the "59
sitios de ganadas mayor, and eleven and a half caballerias of the
Potrero Espiritu Santo, under the natural outlines which the
surveys state."
The grant itself was of the same quantity of land, specified in
the same terms, "within the limits of the colony of New Santander,
and not exceeding its natural boundaries."
In construing this grant, the attendant and surrounding
circumstances at the time it was made are competent evidence for
the purpose of placing the court in the same situation, and giving
it the same advantages for construing the paper, which were
possessed by the actors themselves. The object and effect of such
evidence are not to contradict or vary the terms of the instrument,
but to enable the court to arrive at the proper conclusion as to
its meaning and the understanding and intention of the parties.
Viewing the subject in this light, we cannot say that the legal
effect of the grant is to carry the eastern boundary of the grant
to the line contended for by the plaintiff in error. Whether of
itself it fixes that boundary, as is insisted by the defendants in
error, is a question which in this case it is not necessary to
determine. It is enough to say that the instructions on the subject
given to the jury were as favorable to the plaintiff as she was
entitled to ask. If there was an error, it was
Page 73 U. S. 785
not against her. There is nothing of which she has a right to
complain. The quantity of land specified, as well as the boundaries
named, and the survey as made, is to be considered. It is by their
united light that the proper conclusion is to be reached. Together,
we think, they leave little room for doubt as to the intention and
effect of the grant.
The finding of the jury that the line surveyed was the east line
of the Espiritu Santo grant renders what was said by the court as
to adverse possession and the presumption of a grant immaterial in
the case. Right or wrong, those instructions could have done the
plaintiff no injury, and therefore constitute no ground for
disturbing the verdict and judgment.
The instruction given as to the acquiescence of the parties in
respect to the line run for a long period was correct. The
practical interpretation which the parties, by their conduct, have
given to a written instrument in cases like this is always
admitted, and is entitled to weight. There is no better test of the
intention of the instrument. None is less likely to be mistaken.
There is no danger of too large an admission. Safer testimony can
hardly be presented in relation to any transaction occurring in
human affairs.
The motion for a judgment
non obstante veredicto
assumed as correct a construction of the grant, the opposite of the
views we have expressed. We think it was properly overruled.
Upon the trial, the defendants offered in evidence a copy of the
record of the original proceedings relating to the Santa Isabel,
San Martin, and Buena Vista grants, in surveying which it became
necessary to ascertain and fix the east line of the Espiritu Santo
grant. The plaintiffs objected to the admission of this testimony
upon the ground that at the time of the recordation of the
documents, there was no law which authorized them to be recorded.
This objection was overruled, and the plaintiff excepted. The
defendants then proved the genuineness of the signature of Domingo
De la Garza, and that he was alcalde of Matamoras in 1829.
Page 73 U. S. 786
They also proved the signatures of the assisting witnesses and
that they were dead.
The plaintiff then objected to the admission of the testimony
upon the further grounds that the document did not appear to be the
first copy or testimony issued to the interested party; that it was
not proved to be a true or compared copy of the original protocol,
and because it did not appear that the original protocol was duly
signed by the proper officer. These objections were also overruled,
and the plaintiff excepted.
The questions thus presented are to be decided by the light of
the statutory provisions of the State of Texas which bear upon the
subject. We have carefully examined those to which our attention
has been called. They are found in Arts. 745, 2754, 2758, 2787,
2800, in Hartley's Digest. The result is that we are satisfied that
the testimony was properly admitted. It could serve no useful
purpose, and would greatly extend this opinion, to go into a full
examination of the subject. We deem it sufficient to announce the
conclusion at which we have arrived.
The defendants next offered in evidence a copy, proved to be
correct, from a paper on file in the archives of the City of Mexico
purporting to be a conveyance from Maria Francesco Cavazos to
Miguel Paredes. The plaintiff objected to its admission because it
did not appear that Francesco Cavazos had ever executed the
instrument or authorized the instrument to be executed for her. We
do not deem it necessary to examine the subject in the light of the
Spanish law to which our attention has been called. As the case was
before the jury when the evidence was closed, we think it was
entirely immaterial. Its admission or rejection could not change
the result. If improperly admitted -- a point which we do not find
it necessary to consider -- it did the plaintiff no injury, and
therefore constitutes no reason for reversing the judgment. The
power of attorney made by Prieto to Trevino, the will made by
Trevino under that authority, and the conveyance by Prieto to De la
Garza, offered in evidence by the plaintiff and excluded by the
Page 73 U. S. 787
court, were clearly irrelevant and incompetent. The ruling of
the court was correct.
The same remarks apply to the proceedings before the Supreme
Court of Tamaulipas, also offered in evidence by the plaintiff.
They were properly excluded by the court. The title papers relating
to the grant to Trevino were again objected to by the plaintiff
upon the grounds (1) that the land which appeared to have been
granted by the authorities of Tamaulipas was within three littoral
leagues of the coast of the Gulf of Mexico, and that the
approbation or consent of the general executive of Mexico was not
shown; (2) that the grant appeared on its face to be for more than
125,000 square varas; (3) that it appeared in the proceedings that
a controversy had arisen during the survey as to the ownership of
the land affected thereby, and that it had not been settled in the
usual and proper manner, but by the exercise of authority assumed
by the executive officers, contrary to the colonization laws of
Mexico and Tamaulipas. The court sustained the first objection, and
the documents were excluded as showing a valid grant of land, but
were allowed to be read in evidence to show boundary and
possession. To this qualified admission of the testimony no
exception appears in the record. We need not, therefore, consider
the learned and elaborate argument submitted by the counsel for the
defendants in error to show that the documents were admissible for
all purposes, and that the objections of the plaintiff in error to
their admission are untenable.
These are all the exceptions to which our attention has been
called.
We find no error in the record, and the
Judgment is affirmed.
[
Footnote 1]
Both the words, "Agostadero" and "Potrero," signify places for
pasturing cattle, the latter word perhaps a place enclosed so as to
keep them in it.
[
Footnote 2]
Salvador, at an early day, had cut a passage through this wood
to get to the potrero.
[
Footnote 3]
The word
"arroyo," or
arollo, means a stream,
sometimes a mountain stream.
[
Footnote 4]
The derrame, tank, or slough, fixed as a point in the survey,
was about eighteen miles above the mouth of the Rio Grande.
