The City of Brownsville vs. Cavazos. 4. The decree of the congress of the state of Tamaulipas, of October 15, 1827, and the proceedings thereunder, did not divest the title of the owners of the land taken for the ejidos of the city of Matamoras, nor transfer their title to the city; nor was it an adjudication in rem for the expropriation of said lands without compensation, reserving to the owner the right to obtain compensation by applying therefor. The title could not be divested without compensation to the owners. 5. The validity of said decree could not be called in question, it being the act of the highest tribunal known to the laws of Tamaulipas, invested with supreme judicial as well as legislative authority, and the lands affected by it being at the time within the territory of that state. 6. A resolution of the congress of the state of Tamaulipas, passed on October 20, 1848, after the lands in dispute had become a part of the territory of the state of Texas, is not binding as res judicata upon the parties in this case; but as an authority on the law of Tamaulipas, bearing on the construction of the decree of October 15, 1827, it is of the highest value. 7. Expropriation is a seizure of so much of the private owner's property as is necessary for the public use. When the public purpose is accomplished, or has ceased to exist, the residue of the property belongs to the original owner. 8. But this reverter must be subject to any bona fide rights that may have lawfully accrued in the meantime; thus when citizens have acquired a right of perpetual occupancy of the expropriated lands, at a certain rent or any higher degree of title, they could not be deprived of it. 9. The charter of Brownsville of 1853 did not confer upon that city any title or interest belonging to the state of Texas in and to the land which was owned by the town of Matamoras on December 18, 1836. 10. Where there was a mixed possession of the property in controversy, and had been a continual contest of the parties over it, and absence of actual possession by either party of a great portion of the property, and a litigation of long standing respecting the title to it: Held, that no plea of prescription by either party would hold good. This was an action of trespass to try title. The parties waived a jury and submitted the issues of fact as well as of law to the court. The lands in controversy were occupied by the city of Brownsville, Texas, opposite Matamoras, Mexico. They had been part of the ejidos, or town tract, of Matamoras, which extended on both sides of the Rio Bravo or Rio Grande. Texas chartered the city of Brownsville in 1852, and granted to it these lands, claiming them as part of the public domain. This charter was repealed in 1852. A new charter was granted in 1853, confirming to the citizens all their rights, but not in terms renewing the grant of the lands. This was the city's title. The City of Brownsville vs. Cavazos. The defendants represented the original owners of the tract, and contended that the ejidos were never lawfully expropriated for public use; the land owner having never been settled with for the lands, which was a prerequisite under the constitution of Tamaulipas, under which the expropriation was attempted in 1826. Hence, the defendants claimed title under the original land owner, whose grant was made in 1781, and was not disputed. This was a second suit to try this disputed title. The first was commenced by Basse and Hord against the city of Browsville in 1854, and terminated in June, 1872, in favor of the city. (See Brownsville v. Basse and Hord, 36 Tex., 461.) Stillman and Hale, original defendants in the present suit, purchased out Basse and Hord whilst the first suit was pending. By a law of Texas (Paschal's Dig., § 5298), a judgment against the plaintiff in trespass to try title is conclusive, unless he commences a second suit within a year afterwards. In this case the defendant in the first suit commenced this second suit, and the defendants did not institute any suit within the year. This raised a question of res judicata, but the court held, as the following opinion shows, that the institution of a suit by the original defendants against the grantees of the original plaintiff's relieved the latter from the obligation of commencing a suit; that they could defend their title in this suit. At all events, within the year, the defendants in this suit had filed a plea, setting up that they were owners of the land claimed by the plaintiff, and demanded damages for trespass committed thereto by the plaintiff. The court held this to be substantially a plea in reconvention, and allowed the defendants to amend it so as to make it more strictly such a plea in form as well as in substance. During the progress of the trial, a question of evidence was raised, whether the laws of Tamaulipas, in whose limits the premises in question formerly lay, must be proven, or could be judicially noticed by the court. It was held, that the court should take judicial notice of them, on the general ground, that the former laws of a country, still affecting its landed estates, are to be regarded as domestic and not foreign laws, as is done The City of Brownsville vs. Cavazos. in Louisiana with regard to the old French and Spanish laws, and in common law states with regard to the old English laws. Ennis v. Smith, 14 How., 426; United States v. Turner, 11 id., 664. Messrs. Nestor Maxan, Stephon Powers and T. N. Waul, for plaintiff, cited, Blair v. Odin, 3 Tex., 288; Lewis v. San Antonio, 7 id., 300; De Varaigne v. Fox, 2 Blatch., 95; Bissell v. Haynes, 9 Tex., 584; Bass v. Fontleroy, 11 id., 698; Townsend v. Greeley, 5 Wall., 326; United States v. Rocha, 9 id., 639, 641; Recopilation de las leyes de las Indias, lib. IV., tit. 5; law 6 (2 White's Recop., 44, marg., 34); Constitution of Tamaulipas, arts. XIII, XCII; Refugio v. Byrne, 25 Tex., 193; Georye v. Thomas, 16 id., 74; Guitard v. Stoddard, 16 How., 512; Glasgow v. Hortiz, 1 Black, 601. As to necessity of compensation. Cooley Const. Lim., 560; Railroad Co. v. Ferris, 26 Tex., 601; 2 Kent's Com., 339, note (b); Rogers v. Bradshaw, 20 Johns., 744; Smith v. Taylor, 34 Tex., 606. Action of authorities conclusive. Strother v. Lucas, 12 Pet., 437; Jenkins v. Chambers, 9 Tex., 167. Authority of the congress of Tamaulipas. Const., art. XCII; Goode v. McQueen's Heirs, 3 Tex., 256; Houston v. Robertson, 2 Tex., 25; United States v. Palmer, 3 Wheat., 610; Foster v. Neilson, 2 Pet., 309; United States v. Arredondo, 6 Pet., 711; Garcia v. Lee, 12 id., 520; Williams v. Insurance Co., 13 id., 415; Luther v. Borden, 7 How., 56; Halleck's Internat. Law, 117; Wheat., 161, 165; Elmendor v. Taylor, 10 Wheat., 152, 159, 169; Powell v. De Blane, 23 Tex., 76; Cavazos v. Treviño, 35 id., 165. The act of 1850 (1st charter of Brownsville) is equivalent to office found and regrant. Refugio v. Byrne, 25 Tex., 200; United States v. Repentigny, 5 Wall., 267; Bennett v. Hunter, 9 id., 336; Weber v. Harbor Com'rs, 18 id., 71. Texas was legitimate successor to the rights of the city of Matamoras. Blair v. Odin, 3 Tex., 297; Chouteau v. Eckhart, 2 How., 374; Goode v. McQueen's Heirs, 3 Tex., 241; United States v. Repentigny 5 Wall., 276. The grant of 1850 was irrepealable. Cooley on Const. Lim., The City of Brownsville vs. Cavazos. 235-239; Schulenberg v. Harriman, 21 Wall., 44; Rice v. Railroad Co., 1 Black, 358; Brownsville v. Basse and Hord, 36 Tex., 501. Messrs. J. R. Cox, W. P. Ballinger and T. M. Jack for defendants, cited, Bass v. Fontleroy, 11 Tex., 698; the act to confirm old patent, passed February 10, 1852, took effect April 1, 1852; the act to incorporate Brownsville, of February 7, 1853; Chouteau v. Eckhart, 2 How., 373; Townsend v. Greeley, 5 Wall., 336; McMullin v. Hodge, 5 Tex., 82; Cooley on Const. Lim., 507, 508; Mitchell v. Bass, 26 Tex., 272. On the principal points involved in the case, BRADLEY, Circuit Justice, delivered the following opinion: The property in question is within the boundary lines of a tract of fifty-nine and one-half leagues called the Espiritu Santo tract, granted by the Spanish government to one De la Garza in 1781, which grant was recognized by the legislature of the state of Texas, by the "act to relinquish the right of the state to certain lands therein named," approved February 10, 1852. It is conceded by both parties that for several years prior and up to the year 1826, one Dona Maria Francisca Cavazos was seized of the Espiritu Santo tract (including the lands in dispute) by regular deraignment of title under said grant. Madame Cavazos died in 1835, and devised the Espiritu Santo tract to three parties (one of whom was Dona Maria Josefa Cavazos), who, by an act of partition between the parties, became seized of that portion of the tract on which the premises in dispute are situated. A portion of these premises she subsequently conveyed to other persons, under whom the other defendants claim by regular deraignment of title. So that the defendants have shown title to the land in dispute for the several parts which they respectively claim, unless the plaintiff can show a better title. This the plaintiff, the city of Brownsville, attempts to do. The title set up by the city is a title by a proceeding for expropriation, by which, as they allege, the premises in dispute were expropriated as part of the ejidos (or town lands) of the city of Matamoras in 1826 and 1827. To explain the nature of this claim, it is necessary to advert to The City of Brownsville vs. Cavazos. the fact, that by the Spanish laws, which were in operation in Mexico, every corporate town became, by virtue of the act of incorporation, entitled to lay out and appropriate for the public use of the town, for streets, squares, building sites and small holdings or labors for the people, a town tract of four square leagues, to be two leagues square when admissible. The text of the law is found in 2 White's Recop., 44 (marg. 34) sec. 59. And see Chouteau v. Eckhart, 2 How., 373; Townsend v. Greeley, 5 Wall., 336; Hart v. Burnett, 15 Cal., 542. Mexico separated from Spain about the year 1821, and the several states adopted constitutions of government, retaining, however, the Spanish laws as far as they were applicable to their new circumstances. Amongst the rest, the state of Tamaulipas, which comprised the territory on both sides of the Rio Grande, in the lower part of its course, adopted a constitution in 1825, by the XIIIth article of which it was declared as follows: "Neither the congress nor any other authority shall be able to take the property, even that of the least importance, of any private individual. When it shall become necessary for an object of a common recognized utility to take the property of any person, he shall first be compensated upon the examination of arbiters appointed by the government of the state and the interested parties." This was also substantially the old Spanish law. On the 28th of January, 1826, the congress of Tamaulipas constituted Matamoras (before called Refugio) a town, with power to take the necessary proceedings to ascertain the title to the land on which it was established, causing indemnification to be made agreeably to law, if it should belong to an individual. The town council in due time proceeded to take measures to lay out the ejidos. They caused the land owners to be notified and a survey to be made, in August, 1826. This survey took for its central point the center of the public square in Matamoras, and the ejidos was made to embrace a tract two leagues square, extending one league north, one league south, one league east, and one league west of this point. It was thus made to extend across the Rio Grande, and to include about a league and a half of the land of Madame Cavazos, which league and a half is the present site of the city of Brownsville, and is the property in |