Town of Refugio v. Heard (95 S.W.2d 1008, 1936)

BOBBITT, Justice.

This is a suit in trespass to try title, brought by the town of Refugio, Tex., appellant here, against J. F. B. Heard and others, to establish or recover title to 43.913 acres of land, described by metes and bounds, located within the original four-league tract, known as the “town tract” of the town of Refugio, and granted to the town of Refugio from the authorities of the state of Coahuila and Texas, while under Mexican sovereignty, prior to or during the year of 1834. The suit includes two separate tracts of land: The first, or larger tract, lies within the high banks of the Mission river — the bed of said river — within the present corporate limits of the town of Refugio. The second, and smaller tract, 5.28 acres, is located adjoining said river, and is de-r scribed in a certain deed from the town of Refugio to Allen J. Heard, bearing date July 6, 1880. The propositions raised and submitted concerning these two different tracts will be discussed separately-

All parties hereto apparently concede, and the trial court has held, that under “due authority” the town of Refugio acquired, and there was ’by grant of Mexican sovereignty vested in it, the title to the bed of Mission river.

We are not called upon to express, and we do not express, any opinion as to the correctness of that general conclusion. We are called upon to decide the controversy of the parties to this anpeal, and on the record as here presented, that as between the parties hereto, who owns title to that portion of the bed of the river described in the pleadings and contained in the record before us. That is, for the purpose only of deciding the questions raised in this appeal, we accept the conclusion of the trial court that the provisions of the act of 1837, of the Congress of the Republic of Texas, now article 5302 of our Revised Civil Statutes, do not apply to the premises in question, the title to such premises having “passed out of Sovereignty”- before the passage of such act, the- title to the premises, the bed of the river, was vested in the town of Refugio as a public authority or municipality; and the town, having and holding the title .to the premises, had the full power and authority to hold and control the same, exclusively and independently of the governments of both the Republic and state of Texas.

Appellant contends, as we view its position, that it did not sell or convey the bed of the river to the respective purchasers who acquired the farm lots or tracts of land located along and abutting the stream; but that the respective conveyances covering such tracts which happened to be along and adjoining the river, extended only to the bank of the stream, and not to the thread or middle of the bed thereof. Appellant asserts, further, that it did not, and in law could not, convey the bed of the stream; that such river bed was held in trust by it for the public, the settlers and colonists in the old days, and the citizens of the Republic and state who owned property and resided in the community and municipality in later years, as at the present time. It is the contention of appellant that under the “public policy”