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 specificallycoveredby Dear Commissioner

Allcorn: court decree.

In your opinion request of May 11, 1959, you have stated that veteranshave made applicationsto purchase two tracts of land the title to which originateswith Willis Avery who obtaineda colonialgrant from the Mexican Governmentfor 4428 acres on March 13, 1832, by virtue of a contractmade in 1827 between that Governmentand Stephen F. Austin for the colonizationof an area now known as Austln*s Little Colony. Avery located a part of his grant, however,beyond the boundaries of the area embracedwithln Austin's Little Colony and it appears that the two traots in questionare situated In a portion of this outlyingarea.

You have further informedus that, according to the records on file in the General Land Office, the H.T. & B. Ry. Co. on April 10, 1870 surveyedSection 4 (for the State) and
on A ril 12, 1870 surveyedalternate Se&ion 3 (for the rallroad

. 7 These sectionsare located, in part at least, on a portion of the Avery location lying entirelybeyond the boundaries of Austin's Little Colony. Your letter is silent as to whether Section 3 was ever patentedbut you do advise that although there have been successivesales and cancellations of variousparts of Section 4, no patent appears to have been issued nor are there presentlyoutstandingany sales obligations with respect to any part thereof.

In surveyingthe 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 ofHonorable Bill Allcorn,page 2 (WW-657)

his headrightgrant. In view of these circumstances, aswell
as certain reported cases and legislativeenaotmentsherelnafter more fully discussed,you have asked our opinionwith respect to (1) whether the Willis Avery survey not'coveredby 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 Statutesof Texas.

For the reasons and subject to the limitationshereinafter discussed,it Is OUP belief that the Avery grant is valid. Fortunately,the questionpresentedhas received rather extensive,if not conclusive,judicial consideration.

In the case of Hamiltonv. Avery 20 Tex. 612, decided by the Supreme Court in 18h'[. it appears t&at Hamilton In April of 1847 (some 15 years subsequentto 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 institutedsuit againstAvery to establishtitle to the 1120 aere tract and the validity of his locationas against the 1832 grant to Avery was thus squarelybefore the Court. The trial court upheld the Avery grant and while a review of this judgmentwas lature in 185

&ending on appeal to the Supreme Court, the Legispassed, and the Governor approved,an Aet which confirmedand validatedall grants of headrights made to colonists before November 13, 1835 "and lying and being intersected
or crossed by the boundary line of RobertsonlsColony 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 limitationsof this Act and you have verbally advised us that as a matter of fact such grant lies partly within Austin'sLittle Colony and partly within Robertson(sColony, thus bringingAvery's grant within the provisionsof the Act. This Act of Confirmation, however, containeda saving clause OP proviso "that nothingherein contained shall be so construedas to affect the rights of third parties."

The Supreme Court held that there was no authority under Austin's contraotof 1827 for the Commissionerto make a grant which extendedbeyond 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 purportedgrant was null and void. And, in construingthe ValidatingAat, the Court further held that Hamilton'slecationand survey,having taken place before the passage of the Act, was squarelywithin 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 affirmativeeffeat of the ValidatingAct with respect to portions of the Avery grant upon which no adverse locationshad been made prior to Its passage, Implicit,
we think, in the Court'sopinion is sanctionfor the proposltion that the Aot legallywas effectiveto validateand aonfirm the entire Avery grant except only a8 to interveninglocations of third parties.

Following the decision in the Hamilton case, the Legislature In 1858 passed an Act authorizingand requiring the Commissionerof the General Land Office to issue a headright certificatefor 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 originalAvery grant

This very contentionwas in fact made in the case of Griffithv. Sauls, 77 Tex. th S 630, 14 S.W. 230 and was rejectedby

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 coloniststo the Legislature asking forthe grant of a league certificateeach 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 compensationfor the lands lost by the decision In Hamiltonv. Avery, and not in lieu of all lands held by the beneficiaries of that act as colonistsof Austin's Little Colony." P. 635.

Onoe again the Supreme Court had occasion to construe the ValidatingAct 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 locatedby W. C. Rays on a portion of the outlyingAvery grant and filed with the. .

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

State Land Office in 1849. Apparentlythe parties in court consideredthe Hays location superiorto the Avery grant perforee the holding in the Hamilton case and the sole issue (thephysical facts of adversepossessionfor three years being otherwiseadmltted)was whether the Avery grant constituted "aolor of title' legally sufficientto predicate the claim of adverse possessionby the Avery heirs under the three-yearStatute of Limitation. It being conceded that a junior patent constitutessuch "color of title", it was contended that as to the Hays location the Avery grant was analogous to a juniorpatent and thus suppliedthe 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 certifiedthe question to the Supreme Court of whether the majority or the dissentingopinion of that court was correct. The majority of the Court of Civil Appeals construed the saving clause contained in the ValidatingAct of 1854 as exceptingfrom its granting operation lands theretoforelegally locatedby third parties. The Supreme Court approved this constructionand with respect thereto stated, in part:

"If the proviso to that statutebe omitted, the act would be a grant by the State of Texas for the land which had been previouslylocated 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 constitutea grant of the land as against the locationand survey under the Hays bounty warrant,made prior to the enactmentof 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 surveywhich 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 locationand survey. If It were held that such a grant constituted color of title as against the Hays location It would 'affectthe 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 dealingwith the Avery grant in connection with 'the

ValidatingAct of 1854.

HonorableBill Allcorn,page 5 (w-657)

have ever intimatedthat the to validateAvery's original tions made thereonbefore 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

_ Legislaturepossessesplenary power over the dispositionor the public domain subjectonly to certain limitationscontained in our Constitution, none of which are applicableto the Act In question. 34 Tex.Jur.,p. 46, Sec. 25.

The most persuasiveargumentwhich could (at one time) have been made against the 8lain terms of the Validating Act is that the Relief Act of 185 was made in lieu of the lands originallygranted to Avery in 1832. The Relief Act, however, containsno such provision on its face and the Supreme Court in the Griffithbase, supra,has stated in no uncertain terms that th land there authorizedwas in oompensation only for the lang lost by the decisionin the Hamilton
case. And, as we have heretofore stated, it is our opinion that the proper constructionof this deaislon inescapably leads to the conclusionthat the only lands lost therebywere those upon which third parties locatedprior to the passage of the ValidatingAct.

It is thereforeour opinion that the Avery grant of 1832 was effeetively validatedby the Act of 1854 as to all land contained In the original field notes with the exception of tracts which were located thereonprior to the passage of the ValidatingAct. Since Sections 3 and 4, heretoforediscussed,were not located or surveyeduntil 1870, it necessarily follows that such locationsare invalid to the extent that they may be in conflictwith the Avery grant of 1832. The actual locationof these Sectionsupon the ground is, of course, a matter which can be determinedonly by an accurateground survey,

Our conolusionwith respect to the validity of the Avery grant necessarilydisposes of your second and remaining question.

SUMMARY

The effect of the ValidatingAct 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 thereonprior to.thepassage of the Act. The locationsof said Sections 3 and 4HonorableBill Allcorn,page 6 (WW-657)

having been made subsequetit o the passage of the V&lidatlngAct are invalid to the extent that they may be in eonrlictwith 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