The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1901-02-10

tied law OF the Kingdom OF spain that
a grant OF land to a private individual
carried with 1t distinct reservation on
all mines and minerals.
This law was substantially incorporated
In the law of the state of Coahu.la and
Texas. BY an act Of the congress OF the
state OF Coahuils and Texas in 1887, de-
cree was passed designated as decree NO
40 (see Gamme,s Early Laws OF Texas,
Vol 1 d. COIL, article Is OF when de-
cree reads as follows:
.s1'he spanish statute of mining Laws.
so far as The same Is not opposed to tina
constitution and laws OF this STATE, shall
be observed"
las the constitution and laws OF that
state nowhere changed the policy OF The
Spanish and Mexican law In reference 10
| tie reservation of minerals enf IN no
particular recognized TO Anglo american
| policy on that subject, Lhis act can only
| be construed as to reserve in all grants
the mines and minerals in the sovereign
| state.
| Tie law at that time existing resu-
| lated how these minerals SO reserved
| whether situated upon the land STU q
| part o. tie pubic domain. or lands re-
| duced to private ownership, could be dis
| covered and worked.
| AT tho Time the fathers asserted the
independence OF Texas and established
|
the head OF Schedule provided, In sec
ton /. as follows:
That no confusion mag arise from the
| adoption OF this constitution. IL Is de-
| clared by this convention that all laws
now in force ia Texas, not lncons!ste OFT
| with this constitution, shall remain in
full force until declared void, repealed,
altered or expire oy their own limita-
| ton"
Among these laws were unluestionably
the mining Jaws inherited by the Republic
Of Texas from the Mexican republic and
tho Kingdom Of SPAN.
! IL was not until 1910, some four years
after the existence OF The Texas repub-
lie, before the common law OF Eng.and
was adopted, and 10 tho adoption OF that
ACT the lows affecting mines and minerals
is expressly reser1cd. 1 quote section
., VIII Chris as follows.
DO IL further enacted, that all laws
10 force IN this Republic prior 10 the
first OF September, 1886 Except the laws
OF the consultation and provisional gov
ernments now in force, aud except sdcn
laws as relate exclusively 10 grants and
the colonizi ton of lands IN the state
. OF Coahuila and Texas. and also sucn
laws as relate to islands aud lands, aud
also all salt lakes lakes and salt springs
. mines and minerals of every description
| made By che general and 81 ate govern
I ment), be and the same are hereby re-
/ pesled" Hart eys d gest, - 200
Nor was thore a oh nge or repeal o
any OF this statutes b0ve excepted wheg
the Reprollc Of Texas became a membe
o, the Federal Union Under THIS muta-
J ton, the operation OF tao lava then II
force, wac specially recognized, the con
: stttution Of 1a45 using the following
language;
'tAll laws and parts of laws now ii
' !. Fr
not repuSnant to the constitution OF th
! United S ,atcs, the Joint resoutat,vn 10
! anneXug Texas TO the Union, or to tn
provisions OF this constitution shall con
: tinue and remain In force as The law
:. OF this State. until they expire by thel
own limitation or shall be altered o
repealed by the legislature thereof"
!; We are not altogether without Judi
= cial Determination OF this question b.
!, the supreme court OF this Safe. You
n | e%celency's attention is called to tn
case OF C0wan vs.. Hardemaa, Twenty
sixth Texas. p. 2l7 which indicates tha
IL was the opinion of tle supreme couI
at that time Chat IS, In 1862, or at leas
one of the judges Of The same. that
grant Of land by the State OF Texas wa
grant made with the reservation
= all islands, salt springs. mines and nit
erals. This case arose over a reserv;
~ ton specifically made in u statute VIII &c
y was passed June 3, 1897, being entitlC
- IAN Act for The Relic. OF James Erv
- and Others" The act authorized th
re issuance Of land scrip TO the same LAM
~ Erwin and others, provided for the /
= cation of the same, but contained Il
10 following proviso: Provided, that
~ lands granted by this government sh;
~ be located on salt springs, gold and 81
~ yer mines. copper or lead or other mi
~ erals or any island Of the Republic"
- 1T seems that subsequent to Tho loo
IL tion OF some OF the scrip so authorize
which was apparently located in go.
faith and patented by the STATE. V,
" liable saline or salt mine was discover
~ TO exist upon the same. The contentl
~ Ct the appellant was. that although {
: pa emit issued in COED faith upon 4
" tract where the saline or salt mine W
- at the time OF It's issuance unknow
10 that Its subsequent discovery brought
q within the letter OF the prohibition
~ the law, aud that therefore, the pate
~ was alb inltlo void, The court held Ii
'ns although the patent was valid, yet ne
." ertheless the State did have the rlr
il, and did reserve title to the mines a
"a minerals subsequently discovered up
AZ the same. and that tho reservation
" the act. while in terms applying TO I
~ - land was Intended to be merely N
~ ervation of the minerals in the Ian
n Jndge Wheeler In his opinion In this ca
~ uses the following language In referep
M to the proviso as not being limited
Ion the particular grant. that is the grs
"a 10 James Erwin and others but as bei
", a general provision applying TO all gran
". to-wit:
L., "As such think It was intended by
legislature. not as the adoption Of a n
lat principle of the law OF tho State. but
,lic deelaratory Of the exiHiins laws
ct The following language is also quo
from that opinion:
- The legislation OF the congress of
Republic offers other evidences Of
4 soliciiude OF tho legislature 10 guard
interests OF the State In her islands. s
. springs and minerals"
b, He quotes also the articles oont,nul
u the Mexican law In reference to mir
" snd minerals, asserting that tho act ma
= Tested the settled policy and purposes
!. inc part OF the Legislature to protect
;, interests Of the State In the enunerat
ii OBJECTS. and 10 guard against their opel
lion for the purpose OF private specu
C tlon.
- Subsequent to this decision the cons
- tuition OF 1866 definitely recognized Il
n the grants Of lands un 20 the time
the enactment OF that constitution v
1, with the reserva ion 10 the State on
mines and minerals that existed upon
N ~