# Cook v. Burnley (78 U.S. 659)

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United States Supreme Court
78 U.S. 659
Cook v. Burnley
ERROR to the District Court for the Eastern District of Texas, in a suit brought by Burnley and Porter against Cook, Eller, Elam, and several others. The case was thus:
Along the coast of Texas, small tide-water bayous, or inlets, extend from the Gulf of Mexico, and from larger bays or inlets like that of Matagorda, into the land. They frequently connect with each other, and with the gulf or bays, by other and similar channels. Being surrounded in many states of the tide, and sometimes in all, by a thread of water, they may, in one sense, be called 'islands;' but lying as they nearly all do within the regular profile of the coast, and entitled to an insular name only by some depression in the original soil, which has invited the ebb and flow of the water in that direction, they can hardly be regarded as coming within the meaning of 'islands' in that sense which has in most of our States made islands a sort of soil excepted by their governments from ordinary grants of soil; or in any sense which would exclude them from a grant of land on the coast generally. In this state of the physical form of the coast, Burnley and Porter brought suit against Cook and others to recover a league of land situate on the western shore of Matagorda Bay, near the mouth of the river Lavaca, in Calhoun County, Texas. The parcel in immediate controversy lay north and adjoining Powderhorn Bayou, and comprised one hundred and seventy-nine acres. A part of the defendant's defence was based on the assumption that a portion of what the plaintiffs claimed was an island.
Having pleaded the general issue and the statute of limitations, and it being agreed by writing that under the general issue the defendant might prove every fact which he could under a special plea, the defendants put in, without verification by affidavit, a plea in abatement, alleging the pendency of a suit commenced in a State court of Texas, by Burnley and one Jones as plaintiffs, against the present defendant, Cook, and others; not all of them, however, the same persons as the defendants here. The suit in the State court, as the plea represented, set forth title to the same league of land as was now sued for; the laying out of a town site thereon, the location thereon by Cook of a land certificate for three hundred and twenty acres, the commencement of a rival town enterprise, acts of trespass and waste, and it prayed an injunction, which was obtained; also damages $10,000, and general relief. The court below struck out this plea in abatement on the ground, 1st, that it was filed after answer to the merits; 2d, that it was not verified by affidavit; 3d, that it was not sufficient in law.
The case being called for trial, the defendant, Cook, applied for a continuance, on the ground of the absence of a witness; he having previously obtained one continuance on affidavit, and having agreed to a peremptory order of trial. The application was overruled.
After this he moved for a change of venue, supported by an affidavit setting forth certain statements with reference to himself, in a publication alleged to have been made by the judge of the court below; his belief that the judge had prejudged his cause; and that he could not obtain a fair and impartial trial. This motion was made under the act of March 3, 1821, providing that 'in all suits and actions in any District Court of the United States in which it shall appear that the judge of such court is in any way concerned in interest or has been of counsel for either party, or is so related or connected with either party as to render it improper for him, in his opinion, to sit on the trial of such suit or action, it shall be his duty, on application of either party, to cause the fact to be entered on the records of the court,' and also an order certifying the case for trial, &c. The court overruled this motion.
The case then proceeded to trial. The title of the plaintiffs was based on the colonization laws of Mexico, under which Martin De Leon established a colony in Texas with power to grant titles. This title came more immediately from Juan Cano, a colonist in this empressario grant, and under a conveyance from the commissioner of De Leon, April 11th, 1835. Under this same settlement of De Leon grants similar to the present one had been made adjoining this one to one Benito Morales, and on a suit by this same plaintiff, Burnley, and one Jones, against the same Cook who was the principal defendant here; which suit came finally before this court in the case of White et al. v. Burnley, several years ago. The land, in this present grant to Cano, was described as situated on the western bank of the Mother Lake (Laguna Madre) of Matagorda, commencing at a stake that stands upon the deep brake of said lake, and after being carried by courses and distances around three sides, to a point where a stake was driven in the deep brake of the said lagoon, for the fourth and last landmark, . . . followed the bends of the lagoon to the place of beginning. It was represented as containing forty-six millions of square varas. Appended to this grant was a plot or diagram.
The plaintiffs then made title from Cano to one L. Manso, and by deed, dated in Louisiana, April 6th, 1836, from Manso to one Grayson. At the time when this last deed was made, Texas, then an independent republic and not yet a State of the American Union, was at war with Mexico. Manso had been long resident at one time in Mexico, but whether ever a citizen of it was not so clear. He was a native of Spain, and at the time of this grant was temporarily resident in Louisiana, having been expelled from Mexico under some laws driving away Spaniards, and was purposing to go to Texas when its war with Mexico should be ended.
The defendants objected to the reading of the grant from De Leon to Cano, because the title had not been recorded in the county where the land was situate, and neither recorded nor deposited in the general land office of Texas. The ground of the objection apparently was, that the legislature of Texas had by statute enacted, on the 20th of December, 1836, that any person owning lands should, within twelve months, have his titles proved in open court, and recorded in the county where the land lies; and that no deed should affect the rights of third parties unless proven and recorded. And that on the 14th of December, 1837, it was further enacted that it should be the duty of every person having titles to deposit them in the general land office within sixty days.
It was shown, however, by the testimony of one Edward Linn, who had been surveyor of the Victoria district (where these lands lay), from 1838 to 1840 and from 1847 to 1854, when examined, that he had made a connected map of a survey in that district and deposited it in the general land office in 1838, and that the head-right lease of Cano, whom he knew, and knew to be a colonist in the colony of Martin De Leon, along with head-right leases of other colonists, including Manso, already named, and one Benito Morales, with all the lands titled by the commissioner who had made this grant, were laid down on this map, and that Cook, when he made his location on the head-right leases, knew of these 'colonial titles.'
To the reading of the deed from Manso to Grayson the defendants also objected, because at the time of making it Manso was an alien enemy to Grayson, his grantee. The court overruled both the objection to De Leon's deed, and that to the deed of Manso, and both deeds were read.
In the course of the trial, and coming to the defendants' case, the defendants offered to read a deposition of one H. Beaumont, taken de bene esse, under the thirtieth section of the Judiciary Act. This section provides that the witness 'shall subscribe the testimony by him or her given after the same shall be reduced to writing, which shall be done only by the magistrate taking the deposition, or by the deponent in his presence.' There was no certificate here by the magistrate that he reduced the testimony to writing himself, or that it was done by the witness in his presence.
Proceeding further, the plaintiff having on his side shown residence of their tenants on the lease from the spring of 1848 to the time of trial, the defendant sought to show by the deposition of certain persons, named respectively Moore, Schwatz, and Howeston, that tenants of Cook had been in possession of that same place from a date which countervailed the plaintiff's evidence. The depositions ran thus in the case of each witness respectively:
'Witness knows that Cook and his tenants have had continuous possession of said land since the fall of 1849 to the present time.' 'Since fall of 1849, Cook, by his tenants and those holding under him, has had continuous possession of said land; said possession he knows to have been continuous.' 'As the tenant of Cook, as witness understood, that witness knows that said Cook, by himself and his tenants, held possession continuously ever since May or June, 1850.'
These statements were ruled out by the court, on the objection of plaintiff: 1st, that they were conclusions of law, and not matters of fact; 2d, that they were loose and indefinite, without the names of persons, and without dates or times, or any statement of the facts which in their mind constituted tenancy and possession. Facts stated by the witnesses, showing the names of the witnesses, the time when they came and when they went, were let in. Subsequent depositions of the same witnesses, taken on notice and cross-examination, were read.
The defendants, who asserted that their land was an island, and not capable of having been granted under De Leon, claimed under title from the State of Texas in favor of Cook, one of the defendants. This title was not disputed except as it was asserted to embrace lands claimed by the plaintiffs as within the earlier grant to Cano. The defendants' title as made out without the rejected depositions was as follows:A certificate for 960 acres of land, issued to one Gwartney, December 15th, 1837. Conveyance of same by Gwartney to Cook, December 16th, 1837. A survey of 179 1/2 acres of land north of Powderhorn Bayou, with 1100 varas front on the bay, by virtue of said certificate, made May 15th, 1850. Location of this certificate as follows:
'LOCATION NO. 339, January 5th, 1847.
'To the County Surveyor of Victoria County:
'Will please survey 320 acres on bounty warrant No. 990, on Matagorda Bay, at the mouth of Powderhorn Bayou, on the northwest side; thence up the bay and back for quantity.
'W. M. Cook.'
This was set up as a location of the 179 1/2 acres of land to the date, and as sustaining the plea of limitation from January 5th, 1847.
Next a patent for said 179 1/2 acres of land, issued May 16th, 1857.
The plaintiffs, on the other hand, to show that Cook had abandoned his location of the Gwartney certificate of January 5th, 1847, proved a location made by Cook, as follows:
'Location, No. 429, Sept. 12, 1849.-W. M. Cook locates land warrant, No. 5072, issued to J. A. Wells, for 320 acres of land, commencing at the east corner of a survey made for D. N. White, on the southwest side of Matagorda Bay; thence down the bay to Powderhorn Bayou; thence up the bayou and back, for quantity.'
They proved, also, a survey of the same 179 1/2 acres north of Powderhorn Bayou, made by the said Cook, by virtue of land certificate to Wells, May 15, 1850, recorded on the 29th same month; and that on the 13th January, 1851, by the direction and request of said W. M. Cook, the field notes and survey of this 179 1/2 acres were altered and transferred to the land warrant 990, the Gwartney certificate.
As the reader will have perceived, one of the defendants' defences was, the plaintiff's grant did not embrace within its legitimate boundaries the land which Cook had located on, and which the defendants were now claiming. To show the reverse of this and the true designation and character of the land granted, the plaintiffs relied on the diagram or plot attached to their grant, and forming part of their testimonio of title, as the evidence of the original survey. On a suit which had taken place about the land in the State courts, Beaumont, already mentioned, had been directed by the court to make a survey, according to the courses, distances, and landmarks of the original survey. Field notes were furnished him by the court. He did make the survey from the field notes so furnished, and returned the land as containing 48,665,450 square yards, or 8613 3/4 acres; much more than a league; but another person, a civil engineer, named Thelipapa, made the map. This he made from field notes furnished him by Beaumont. But these were different from those accompanying the order of survey. The last specified distances and the corners of the league. The former gave distances only. Made by the corners, more than a league was included, and the case of the plaintiffs was strengthened.
The law under which the original survey was made apparently required the course of the lines to be by the magnetic needle. From the only testimony on the point, the survey of Beaumont was by the true meridian; and by comparing and platting the two maps, it was apparent that their meridians were different.
The defendants asked the court to give these instructions to the jury:
'1st. If Manso was an alien enemy at the time he executed the deed to Grayson, he conveyed no title through which plaintiff can recover.
'2d. If plaintiff's title was not on record in the county where the land lies, or in the general land office, at the time defendant located his land warrant, and completed his survey and obtained his patent, he is in the position of an innocent purchaser, and entitled to recover.
'3d. If the plaintiff's title includes an island surrounded by tide water, it is bad as to the island.
'4th. If the jury, from the evidence, can fairly and justly construe both the plaintiff's and defendant's title so that both can stand, it is their duty to do so.'
The court refused to give any one of these instructions, and gave none but this:
'The diagram or plot attached to the plaintiff's grant is evidence to show the designation and character of the land granted, and may be used by the jury for its shape and boundaries. It appears to have been surveyed by magnetic courses, and if the survey returned by Beaumont was not surveyed by the magnetic but the true course, the jury must allow for the difference, and Beamont's cannot be regarded as showing the original survey. The fourth call is from the end of the third line with the bend of the Layuna Madre of Matagorda to the beginning.'
Verdict and judgment having gone for the plaintiffs, the defendants brought the case here; where it was submitted by Mr. Merriman, for the plaintiff in error; and by Messrs. Adams and Ballinger, contra.
Mr. Justice NELSON delivered the opinion of the court.

## Notes

* ↑ The reader will see a more full account of this configuration of the Gulf Coast, with an illustrative diagram, in Cavazos v. Trevino, 6 Wallace, 775, 778; where one of the islands was likened to Long Island.
* ↑ 3 Stat. at Large, 643.
* ↑ 20 Howard, 235.
* ↑ Paschal's Digest, art. 727.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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