June 30, 1959 

Honorable Bill Allcorn 

Commissioner 

General Land Office 

Austin 14, Texas 

Opinion NO. ~~-657 

Re: Validity of the portion of the Willis 

Avery grant not specifically covered by 

Dear Commissioner Allcorn: court decree. 

In your opinion request of May 11, 1959, you have 

stated that veterans have made applications to purchase two 

tracts of land the title to which originates with Willis Avery 

who obtained a colonial grant from the Mexican Government for 

4428 acres on March 13, 1832, by virtue of a contract made in 

1827 between that Government and Stephen F. Austin for the 

colonization of an area now known as Austln*s Little Colony. 

Avery located a part of his grant, however, beyond the boundaries of the area embraced withln Austin's Little Colony and 

it appears that the two traots in question are situated In a 

portion of this outlying area. 

You have further informed us that, according to the 

records on file in the General Land Office, the H.T. & B. Ry. 

Co. on April 10, 1870 surveyed Section 4 (for the State) and 

on A ril 12, 1870 surveyed alternate Se&ion 3 (for the rallroad 7 . These sections are located, in part at least, on a 

portion of the Avery location lying entirely beyond the boundaries of Austin's Little Colony. Your letter is silent as to 

whether Section 3 was ever patented but you do advise that 

although there have been successive sales and cancellations 

of various parts of Section 4, no patent appears to have been 

issued nor are there presently outstanding any sales obligations with respect to any part thereof. 

In surveying the two tracts in question the surveyor, 

by his field notes, has placed them as a part of said Sections 

3 and 4 while, as heretofore indicated, the chain of title on 

these two traats stems solely from Willis Avery as a part of 
Honorable Bill Allcorn, page 2 (WW-657) 

his headright grant. In view of these circumstances, aswell 

as certain reported cases and legislative enaotments herelnafter more fully discussed, you have asked our opinion with 

respect to (1) whether the Willis Avery survey not'covered by 

court decree is a valid grant and if not, (2) whether the State 

should consider the area as State owned and permit oacupants 

thereof to purchase and obtain a patent under the provisions 

of Article $+21c, Section 5, Revised Civil Statutes of Texas. 

For the reasons and subject to the limitations hereinafter discussed, it Is OUP belief that the Avery grant is 

valid. Fortunately, the question presented has received rather 

extensive, if not conclusive, judicial consideration. 

In the case of Hamilton v. Avery 20 Tex. 612, decided 

by the Supreme Court in 18h'[. it appears t&at Hamilton In April 

of 1847 (some 15 years subsequent to the Avery grant) surveyed 

and located a tract of 1120 acres on a portion of the Avery location lying beyond the limits of Austin's Little Colony. In 

1849 he instituted suit against Avery to establish title to the 

1120 aere tract and the validity of his location as against the 

1832 grant to Avery was thus squarely before the Court. The 

trial court upheld the Avery grant and while a review of this 

judgment was 

lature in 185 & 

ending on appeal to the Supreme Court, the Legispassed, and the Governor approved, an Aet which 

confirmed and validated all grants of headrights made to colonists before November 13, 1835 "and lying and being intersected 

or crossed by the boundary line of Robertsonls Colony and Austin's Little Colony, and being part bn one of said colonies and 

part in the other". Acts, 5th Leg., Ch. XXVII, 3 Qemmel's 

Laws of Texas 1473. The date of the Avery grant of course falls 

within the time limitations of this Act and you have verbally 

advised us that as a matter of fact such grant lies partly within 

Austin's Little Colony and partly within Robertson(s Colony, thus 

bringing Avery's grant within the provisions of the Act. This 

Act of Confirmation, however, contained a saving clause OP proviso "that nothing herein contained shall be so construed as to 

affect the rights of third parties." 

The Supreme Court held that there was no authority 

under Austin's contraot of 1827 for the Commissioner to make a 

grant which extended beyond the limits of the area of such Colony, and that with respect to the portion of Avery's grant lying 

beyond the limits of the Colony the purported grant was null and 

void. And, in construing the Validating Aat, the Court further 

held that Hamilton's lecation and survey, having taken place before the passage of the Act, was squarely within the protection 

of the saving clause thereof. While the Court was not called 
. . 

Honorable Bill Allcorn, page 3 (W&657) 

upon to pass upon the affirmative effeat of the Validating Act 

with respect to portions of the Avery grant upon which no adverse locations had been made prior to Its passage, Implicit, 

we think, in the Court's opinion is sanction for the proposltion that the Aot legally was effective to validate and aonfirm 

the entire Avery grant except only a8 to intervening locations 

of third parties. 

Following the decision in the Hamilton case, the Legislature In 1858 passed an Act authorizing and requiring the 

Commissioner of the General Land Office to issue a headright 

certificate for one league of land to Willis Avery, among other 

persons. Acts, 7th Leg., Ch. 143, 4 Gemmelfs Laws of Texas 

1335. The records of your office show that pursuant to this 

Relief Act a league and labor of land in Kendall County was 

patented to Willis Avery on August 7, 1862. 

It has been sug 

% 

ested that the patent Issued to Avery 

pursuant to said Act of 1 58 was in lieu of all lands, or at 

least all outlying lands, 

of 1832. 

contained in the original Avery grant 

This very contention was in fact made in the case of 

Griffith v. Sauls, 77 Tex. 

th S 

630, 14 S.W. 230 and was rejected by 

C t With respect thereto the opinion of the 

Co&iZEZeofoj~als, adopted by the Supreme Court, stated, in 

part: 

"It was proved on the trial that the memorial 

of Avery and other colonists to the Legislature 

asking forthe grant of a league certificate each 

placed their claim upon the ground that they had 

been ousted of their grants to lands supposed to 

have been located in Austin's Little Colony, and 

that the Act of 1858 was passed in consideration 

of their loss of land by the deaision in Hamilton 

v. Avery. 

"We think the evidence sustains the finding 

that the grant of 1858 of the league certificates 

was made in compensation for the lands lost by the 

decision In Hamilton v. Avery, and not in lieu of 

all lands held by the beneficiaries of that act as 

colonists of Austin's Little Colony." P. 635. 

Onoe again the Supreme Court had occasion to construe 

the Validating Act of 1854 in the case of 

Tex. 501, 68 S.W. 505. There, as in the 

herd v. Avery 95 

lton case, a title 

dispute arose with respect to a bounty warrant located by W. C. 

Rays on a portion of the outlying Avery grant and filed with the 
. . 

Honorable Bill Allcorn, page 4 (~~-657) 

State Land Office in 1849. Apparently the parties in court 

considered the Hays location superior to the Avery grant 

perforee the holding in the Hamilton case and the sole issue 

(the physical facts of adverse possession for three years 

being otherwise admltted) was whether the Avery grant constituted "aolor of title' legally sufficient to predicate 

the claim of adverse possession by the Avery heirs under the 

three-year Statute of Limitation. It being conceded that a 

junior patent constitutes such "color of title", it was contended that as to the Hays location the Avery grant was analogous to a junior patent and thus supplied the requisite 

"color of title". 

The trial court directed a verdict for the Avery 

heirs, the Court of Civil Appeals divided on the legal Issue 

and certified the question to the Supreme Court of whether 

the majority or the dissenting opinion of that court was correct. The majority of the Court of Civil Appeals construed 

the saving clause contained in the Validating Act of 1854 as 

excepting from its granting operation lands theretofore legally 

located by third parties. The Supreme Court approved this construction and with respect thereto stated, in part: 

"If the proviso to that statute be omitted, 

the act would be a grant by the State of Texas 

for the land which had been previously located 

by the Avery grant, and would have the legal 

effect of a lunior natent. But with the nroviso 

inserted in the act; it does not constitute a 

grant of the land as against the location and 

survey under the Hays bounty warrant, made prior 

to the enactment of the law, because it is specially provided that the act shall not be construed so as to ,'affect the rights' of such 

persons. In other words, as to the survey which 

had been made upon this land prior to the passage 

of that act, the act itself was to be considered 

as If it had never passed. It granted nothing 

as against the owner of that location and survey. 

If It were held that such a grant constituted 

color of title as against the Hays location It 

would 'affect the rights' of the parties holding 

under that survey, which the terms of the statute itself forbid." 

It is highly significant, we think, that not even 

the parties, much less the courts, in the cases dealing with 

the Avery grant in connection with 'the Validating Act of 1854 
. 

Honorable Bill Allcorn, page 5 (w-657) 

have ever intimated that the 

to validate Avery's original 

tions made thereon before it 

prising, however, beeause it 

Act was not legally effective 

grant exeept only as to locawas passed. This is not surhas long been settled that the _ Legislature possesses plenary power over the disposition or 

the public domain subject only to certain limitations contained in our Constitution, none of which are applicable to 

the Act In question. 34 Tex.Jur., p. 46, Sec. 25. 

The most persuasive argument which could (at one 

time) have been made against the 

8 

lain terms of the Validating 

Act is that the Relief Act of 185 was made in lieu of the 

lands originally granted to Avery in 1832. The Relief Act, 

however, contains no such provision on its face and the Supreme Court in the Griffith base, supra, has stated in no uncertain terms that th land there authorized was in oompensation only for the lang lost by the decision in the Hamilton 

case. And, as we have heretofore stated, it is our opinion 

that the proper construction of this deaislon inescapably 

leads to the conclusion that the only lands lost thereby were 

those upon which third parties located prior to the passage 

of the Validating Act. 

It is therefore our opinion that the Avery grant of 

1832 was effeetively validated by the Act of 1854 as to all 

land contained In the original field notes with the exception 

of tracts which were located thereon prior to the passage of 

the Validating Act. Since Sections 3 and 4, heretofore discussed, were not located or surveyed until 1870, it necessarily follows that such locations are invalid to the extent that 

they may be in conflict with the Avery grant of 1832. The actual locationof these Sections upon the ground is, of course, 

a matter which can be determined only by an accurate ground 

survey, 

Our conolusion with respect to the validity of the 

Avery grant necessarily disposes of your second and remaining 

question. 

SUMMARY 

The effect of the Validating Act of 1854 

was to confirm and validate the 1832 grant to 

Willis Avery as to the entire area embraced 

within the original field notes except locations made thereon prior to.the passage of the 

Act. The locations of said Sections 3 and 4 
Honorable Bill Allcorn, page 6 (WW-657) 

having been made subsequetito the passage of 

the V&lidatlng Act are invalid to the extent 

that they may be in eonrlict with the Willis 

Avery grant. 

Very truly yours, 

WILL WILSON 

Attorney Qeneral of Texas 

JHR:dhs 

APPROVED: 

OPINION COMMITTEE 

Geo. P. Blackburn, Chairman 

Joseph G. Rollins, Jr. 

Grundy WIllSam 

Jay Howell 

Marietta Payne 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: 

W. V. Geppert