                         June 30, 1959


Honorable Bill Allcorn             Opinion NO. ~~-657
Commissioner
General Land Office                Re: Validity of the por-
Austin 14, Texas                       tion of the Willis
                                       Avery grant not spe-
                                       cifically covered by
Dear CommissionerAllcorn:              court decree.
          In your opinion request of May 11, 1959, you have
stated that veterans have made applicationsto purchase two
tracts of land the title to which originateswith Willis Avery
who obtained a colonial grant from the Mexican Governmentfor
4428 acres on March 13, 1832, by virtue of a contract made 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 bound-
aries 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 rall-
road7 . These sections are located, in part at least, on a
portion of the Avery location lying entirely beyond the bound-
aries 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 outstandingany sales obliga-
tions 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 enaotmentshereln-
after more fully discussed,you have asked our opinion with
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 Statutes of Texas.
          For the reasons and subject to the limitationshere-
inafter 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 subsequentto the Avery grant) surveyed
and located a tract of 1120 acres on a portion of the Avery lo-
cation 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 ending on appeal to the Supreme Court, the Legis-
lature in 185& passed, and the Governor approved, an Aet which
confirmed and validated all grants of headrightsmade to colo-
nists before November 13, 1835 "and lying and being intersected
or crossed by the boundary line of Robertsonls Colony and Aus-
tin'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'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 pro-
viso "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 Commissionerto make a
grant which extended beyond the limits of the area of such Col-
ony, 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 ValidatingAat, the Court further
held that Hamilton's lecation and survey, having taken place be-
fore 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 affirmativeeffeat of the ValidatingAct
with respect to portions of the Avery grant upon which no ad-
verse locations had been made prior to Its passage, Implicit,
we think, in the Court's opinion is sanction for the proposl-
tion that the Aot legally was effective to validate and aonfirm
the entire Avery grant except only a8 to interveninglocations
of third parties.
          Following the decision in the Hamilton case, the Leg-
islature 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, contained in the original Avery grant
of 1832. This very contentionwas in fact made in the case of
Griffith v. Sauls, 77 Tex. 630, 14 S.W. 230 and was rejected by
th S        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 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 Hamilton v. Avery, and not in lieu of
            all lands held by the beneficiariesof that act as
            colonists of Austin's Little Colony." P. 635.
              Onoe again the Supreme Court had occasion to construe
    the ValidatingAct of 1854 in the case of      herd v. Avery  95
    Tex. 501, 68 S.W. 505. There, as in the      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 con-
stituted "aolor of title' legally sufficientto 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 con-
tended that as to the Hays location the Avery grant was anal-
ogous 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 dissentingopinion of that court was cor-
rect. The majority of the Court of Civil Appeals construed
the saving clause contained in the ValidatingAct of 1854 as
excepting from its granting operation lands theretoforelegally
located by third parties. The Supreme Court approved this con-
struction 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 constitutea
     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 spe-
     cially provided that the act shall not be con-
     strued so as to ,'affectthe 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 stat-
     ute 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 connectionwith 'theValidatingAct of 1854
    .




Honorable Bill Allcorn, page 5 (w-657)

have ever intimated that the Act was not legally effective
to validate Avery's original grant exeept only as to loca-
tions made thereon before it was passed. This is not sur-
prising, however, beeause it has long been settled
                                             _     that the
Legislaturepossesses plenary power over the dispositionor
the public domain subject only to certain limitationscon-
tained 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 lain terms of the Validating
Act is that the Relief Act of 1858 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 Sup-
reme Court in the Griffith base, supra, has stated in no un-
certain terms that th land there authorized was in oompensa-
tion 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 constructionof 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 ValidatingAct.
          It is therefore our opinion that the Avery grant of
1832 was effeetivelyvalidated 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 ValidatingAct. Since Sections 3 and 4, heretofore dis-
cussed, were not located or surveyed until 1870, it necessar-
ily follows that such locations are invalid to the extent that
they may be in conflict with the Avery grant of 1832. The ac-
tual locationof these Sections upon the ground is, of course,
a matter which can be determined only by an accurate ground
survey,
          Our conolusionwith respect to the validity of the
Avery grant necessarilydisposes 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 loca-
        tions 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 subsequetit
                               to the passage of
    the V&lidatlngAct 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
