On appeal from the 135th District Court of Victoria County, Texas.
This is a suit in the nature of a trespass to try title action brought by the State of Texas to recover lands for the benefit of the public free school fund. Two tracts of land are at issue. They are known as the Vairin tract and the Fernet tract located near the confluence of the Guadalupe and San Antonio Rivers in Victoria County, Texas. These two tracts were granted by Commissioner Vidauri as part of the Hewitson and Power Colony pursuant to the colonization of this particular area by Mexico in 1834. The defendants filed answers of not guilty, general denial, res judicata, lack of jurisdiction, and various other pleadings and exceptions. Finally, the defendants filed their motion for summary judgment, which was granted. The State of Texas has perfected its appeal from this adverse judgment to this Court.
In summary judgment cases where the merits of the case have not been reached and the summary judgment rests upon the strength of the pleadings before the Court, we must follow the well established rules that require us to assume that all material facts alleged are true. The burden of proof is on the movant and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. The summary judgment can stand only if it is apparent from the record that there is no genuine issue as to any material fact and that movant is entitled to a judgment as a matter of law. Rule 166-A, T.R.C.P.; Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.Sup. 1965); Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.Sup. 1970).
The defendants set out several theories as a basis for the granting of the summary judgment in the trial court. They can be summarized under three basic categories: 1) the prior decision of this Court in Strong v. Sunray DX Oil Co., 448 S.W.2d 728 (Tex.Civ.App. - Corpus Christi 1969, writ ref'd n.r.e.) is res judicata as to title; 2) the Attorney General has no statutory or constitutional grounds to claim this land, and in any event the State is bound by the decision of the land commissioner of the General Land Office; and 3) the State has lost its right to assert a forfeiture by its long delay and by placing an unreasonable burden on the defendants which would deprive them of property without due process of law in violation of the State and Federal Constitutions. The State of Texas on appeal assigns as error the action of the trial court in granting the summary judgment on all of the grounds asserted by the appellees.
The State contends that August L. Fernet and Joseph Vairin, the grantees of the two subject tracts, were never residents or citizens of the Republic of Mexico; that the Commissioner of the Power and Hewitson Colony had no legal authority or power to issue title to the two leagues of land to them; and that as a consequence, the purported grants to them were void ab initio and/or were voidable. This contention is without merit. The original validity of the grants cannot be impeached where they were issued by competent authority. The Supreme Court of Texas was faced with this same contention in an early case. The court said:
"That the grantee possessed all the requisite
legal qualifications to entitle him to the grant,
and that the grant itself concludes all after
inquiry upon the subject, has been repeatedly
decided. This precise question was decided in
the case of Johnson v. Smith, 21 Tex. 722; where
it was held, that evidence cannot be admitted to
prove that the grantee had not brought his family
to the country, and had not, in fact, become
domiciled here for the purpose of showing that
he was not entitled to the grant ...; that the
original validity of a grant, regularly issued by
competent authority, cannot be thus impeached."
Bowmer v. Hicks, 22 Tex. 155, 161 (1858) (Emphasis
The validity of official acts in extending titles under the original colonization laws must be presumed to be valid. The descriptive language in the grants described how the grantor placed the parties in possession. This Court held in Strong v. Sunray DX Oil Company, supra, that Vairin and Fernet were placed in juridical possession of their respective tracts. For instance, their grants recited that "placing him in possession of that which he represents for himself and his principal of the leagues of land that he has designated, he has taken quiet and peaceful possession, in which act he had made all the necessary demonstrations of true ownership." If there was doubt as to the validity of these Mexican grants, they were resolved by the act of juridical possession. State v. Balli, 144 Tex. 195, 190 S.W.2d 71 (1944). This presumption is especially applicable where the acts of the authorities remained unchallenged for a great length of time. Sydeck v. Duran, 67 Tex. 256, 3 S.W. 264, 268 (1887); State v. Balli, supra; 46 Tex.Jur.2d Public Lands § 24. In Barrow v. Boyles, 122 Tex. 416, 61 S.W.2d 783, 787 (1933), the court said:
"Should we accept the plaintiff in error's views
we should adjudge that the officials of no less
than three governments, including our own Texas
commissioners of the general land office and
Attorneys General, have been derelict in duty...."
We hold that the original title grants were not void as a matter of law.
The Fernet and Vairin tracts which the State seeks to recover are the same grants that were involved in the Strong v. Sunray DX Oil Company suit, supra. The State seeks to avoid the binding effect of the final judgment in Strong by showing that title to these grants was not placed in issue, and was not a part of the prior lawsuit because an order for separate trial was entered by the trial court. The defendants take the position that even if title to the Fernet and Vairin grants was not in issue in the Strong case, the State was required to assert and have adjudicated all of its existing claims to such grants. Having let the case go to final judgment without doing so, it is barred. We agree. The Supreme Court said in Ogletree v. Crates, 363 S.W.2d 431, 435 (Tex.Sup. 1963), "The rule of res judicata in Texas bars litigation of all issues connected with a cause of action or defense which, with the use of diligence, might have been tried in a former trial, as well as those which were actually tried."
The particular land involved is shown by a map attached to Strong's original petition. It was reproduced in the opinion in the Strong case on pages 752 and 753 (448 S.W.2d 728). This Court held, among other things, that there was no vacancy in the area of the Fernet and Vairin tracts because a system of surveys beginning at the confluence of the San Antonio and Guadalupe Rivers bound the Travieso tract (number two) to the Valdez (number one) which was at the confluence of the two rivers. The Vairin (number three) was bound to the Travieso, and the Fernet (number four) to the Vairin. See Plat 2 on page 735 (448 S.W.2d 728) of the opinion. In the prior suit, Strong would pull apart these surveys and place the vacancy between the Vairin and the Travieso tracts as indicated in Plat 1 of the opinion on page 732. (448 S.W.2d 728).
In the Strong case, the claimant alleged that all lands within the August L. Fernet and Vairin surveys (as properly located on the map attached to the petition) "are now and do constitute public free school lands to which the State of Texas has full title ".*fn1 He went on to allege that " the State of Texas now owns the Fernet and Vairin survey and the unpatented and unsurveyed lands here above described". In his vacancy suit Strong claimed for himself and the State of Texas all the right to the oil, gas and minerals thereunder. He alleged that the land was vacant and unsurveyed and subject to lease and sale by virtue of Article 5421c, V.A.C.S. He contended that he brought the suit "for the purpose of litigating and deciding boundary, title, and ownership of the land". The prayer to his petition asks that the trial court adjudicate and decree that all the land (including the Fernet and Vairin grants) was vacant, unsurveyed school land belonging to the school fund and that he be awarded all of the right, title, and interest to said land as he may be entitled. The State of Texas intervened in the Strong case and asked that the facts be decided, and if they showed vacancies existing, the public free school fund was entitled to recover them. The State later filed an amended petition in intervention by which it sued in trespass to try title to recover all of the land, expressly including the Fernet and Vairin tracts. Still later, the State amended its plea to eliminate the trespass to try title action but still prayed that if the facts as to the area covered by the Fernet and Vairin tracts show that such grants are State owned lands, the State should be entitled to the recovery of such lands. The pleading of the vacancy claimant, as well as that of the State of Texas, placed the questions of title, boundary, ownership, and vacancy in issue. The purpose of the vacancy suit was to claim the lands for the State of Texas and the public free school fund. The individual claimant who sought to prove the vacancy was given statutory priority to purchase the lands back from the State, if successful. As a result, the state must intervene in such suits under Art. 5421 (c). It is in the nature of a compulsory counterclaim under Rule 97(a), T.R.C.P. Article 5421(c), Sec. 6(j) reads in part: "When such litigation shall have been prosecuted to a final judgment, said judgment shall be binding upon the State of Texas. It shall be mandatory for the Attorney General to intervene in behalf of the State in such cases."
The State contends that a suit under Article 5421(c), Sec. 6(j) is not necessarily a suit in the nature of a "classic" trespass to try title suit and that the question of title to the Fernet and Vairin grants were severed from the Strong case by the defendants' motion and the court's order.
The defendants filed a motion for a separate trial under Rule 174(b), T.R.C.P., contending that there should be a separate trial of the issues relating to whether or not there are vacant lands as alleged in Strong's petition, including the issue of boundaries with respect thereto, from a trial of the issues relating to whether or not some of the defendants are good faith claimants, whether or not improvements have been made in good faith, and the issues relating to the ownership of the production of oil and gas. The Court granted the motion and ordered that the issues of the existence or non-existence of vacancies be separately tried and determined, before the court tried any other issues in the cause. Boundary was considered determinative of whether the vacancies existed or not. The trial court ordered the other issues deferred. Trial on the boundary issue proceeded and judgment was rendered that Strong and the State of Texas take nothing since no vacancy existed. The Court's judgment stated that:
"(The) Court proceeded to try separately such issues,
and there upon came the plaintiff, Guerry Strong, by
his attorneys of record and in person, and came also
the State of Texas as intervenor, by its Attorney
General, and also came all of the above mentioned
defendants who are interested and involved in such
separate trial and who claim titles and interests
in the areas of alleged vacancy, as this judgment
has heretofore enumerated such defendants, through
their respective attorneys of record; and all parties
interested in this separate trial being present,
represented and ready, a jury was duly impaneled and
selected, and this cause proceeded to trial."
The judgment further recited that after it had granted its instructed verdict that:
"It further appearing to the Court that there is
no untitled or vacant land under plaintiff's
Mineral Application No. 56233, and that the J.
Vairin Survey, Abstract 123, and the Maria Josefa
Travieso Survey, Abstract 114, as a matter of law
adjoin and have a common line, and there is likewise
no untitled or vacant land under plaintiff's
Mineral Application No. 56234, and that said Maria
Josefa Travieso Survey as a matter of law is
Continuing further the judgment stated:
"And it further appearing to the ...