Statement of the case.

it had in many places a sort of grass which animals would not eat, "which usually grows on salt marshes near the coast of the sea;" on which account (with others set forth), "it is only useful as regards horses and all other stock, by the security which and protection which is afforded, on account of the potrero having but one entrance and exit through the dense thicket which runs across it from the Colorado to the Rio Grande."

The record then states that the survey begins at a watering-place for cattle, on the Rio Grande, in the southwest corner of the tract, and that the first line ranged from it, course east, going in a straight line from it, "along the banks of Rio Grande, down the stream," 584 cords, at the river, at a slough (derrame), from it, by which in its freshets it supplies a tank with water, "which was left lay above; bore up stream at a distance of six cords, which slough was left as a natural landmark," and a monument fixed; there remaining the record said-on this line, to the south, recesses and elbows formed by the Rio Grande, which "the surveyor would notice hereafter."* This was one day's work.

The second day's record of the surveyor's action was thus:

"In the said place of the slough of the river in which ended the first line, he ran the second line straight to the north, and at 206 cords we came to the head of one of the lagunes of the sea, besides others that were seen to the east, and having gone round the head of this first one and various others which succeeded, communicating with each other, following always the north course, the surveying cord came to a little pocket or meadow which the said lagunes make, these laying on the west and east until they reach Lagunas Madres,' which are formed by the Arroyo Colorado, and into which its waters empty, there being far within this line (something more than a league), a place improved. . .; and there being no more land on account of our having reached the said Lagunas Madres, and having nothing before us but water, the second line amounted to 993 cords in the whole."

The derrame, tank, or slough, fixed as a point in the survey, was about eighteen miles above the mouth of the Rio Grande

Statement of the case.

The third day recorded that in the place on the Colorado where it expands into the broad lagunes (Lagunes Madres), the surveyor began the third line, running up the stream, course west, &c., 584 cords, the same number with the line on the Rio Grande; a part of the line, owing to impassable ravines, thicket, &c., described, being conjectural.

A fourth line, in part conjectural, to the watering-place, closed the survey.

The surveyor, noting that he had estimated the elbows made between the first line and the Rio Grande, declared that "within the four said lines were contained 59 square leagues (sitios de ganadas mayor) and 11 caballerias of land."

After the survey was completed, the attorney of the treasury advised the granting of the "59 sitios de ganadas mayor and eleven and a half caballerias of the Potrero Espiritu Santo, under the natural outlines which the surveys state," and a grant itself was made to Salvador in due time afterwards (September 26th, 1781), of the same quantity of land, described in the same words, "within the limits of the colony of New Santander, and not exceeding its natural boundaries."

Salvador took possession, and lived on the tract till 1802. In that year he died, leaving three children, to whom his estate went, as it seemed, equally, and to the rights of one of whom, Cavazos, the present plaintiff, succeeded.

Salvador appeared to have had different ranches on this tract, and to have exercised more or less possession over various parts of it.

In 1829 one Trevino, who, as it was said, truly or not so, had been but an agent of some of the children or grandchildren of Salvador, joining himself with some other parties, occupants of the soil, and, as was attempted to be proved, coowners with the plaintiff of the undivided whole, applied to the state authorities of Tamaulipas and got grants for the parts which lie east of the line marked on the map as the surveyor's line; tracts designated as San Martin, Sta. Isabel, and Buena Vista. Cavazos, who, as already said, had suc

Statement of the case.

ceeded to the rights of one of Salvador's three children, now brought trespass to try title to the third of a part east of the line and to recover possession, the question in controversy being the eastern boundary of the tract; and this, perhaps, being complicated by the fact that there was on most of the eastern side of the tract a long body of water, called the Laguna Madre, made by a long narrow island, running outside the shore (a place likened by counsel somewhat to Long Island Sound), and also numerous smaller lagunas, running into the coast. Whether the land ran to the shore, which brought it to the Laguna Madre, and in one sense to the sea-shore, and in one, to the laguna of the sea, or only to the little lagunas, which might in one sense be called the lagunes of the sea, and in another but lagunes of the sound or Laguna Madre, this was a question. One part of the strip-a part between the mouth of the Rio Grande and the Boca Chica-was on the sea; no lagune running beside it.

The plaintiff adduced witnesses to show occupancy by Salvador with more or less specific assertion of title over every part of the tract; that by the term "potrero" was meant a place so inclosed by natural boundaries as that cattle put there to graze could not easily get out of it; that the tract derived its chief advantage to Salvador from its thus being a potrero; that it could only be so by coming to the water's edge along its whole eastern line; that it was not customary in early Spanish surveys to meander along either rivers or curved shores, but to make elbows and estimate; that if the surveyor had gone to the mouth of the Rio Grande and then north, he would have run into the sea; and that if he had meant to run the eastern line in a convenient way, and to survey by running base lines by cardinal points, the land inclosed by the thicket, the Rio Grande, the lagunes, and the Colorado, he would have run the lines much as he did; and finally, to show that according to general reputation the property of Salvador was a potrero, a place for grazing inclosed by four natural boundaries. As matter of argument he relied on the principle of law that parties are never presumed to leave a narrow strip between land and

Opinion of the court.

water merely because certain stakes or trees stand at a slight distance from the river.

The evidence of the defendants was to prove long adverse possession on their part up to the surveyor's line; that the term "potrero" did not mean so absolutely as was asserted an inclosure for feeding cattle; that whatever Salvador had asked for or desired, this was controlled by the survey actually made and the monuments fixed; that it was impossible to regard as unmeaning the fact, that the surveyor had made no reference to such monuments as the mouth of the Rio Grande and the shore of the Gulf of Mexico.

In the course of the trial the plaintiff excepted to the ad. mission and to the exclusion of various testimony, and on its conclusion to instructions given and to those refused by the court. All these, and what is further necessary to be known of the case, are stated by the learned justice who gave the opinion of the court.

Messrs. Hale and Robinson, for the plaintiff in error; Messrs. Sherwood and R. Hughes, contra.

Mr. Justice SWAYNE delivered the opinion of the court. The plaintiff in error brought an action of trespass in the court below to try the title to the real estate in controversy between the parties, and to recover possession. There were numerous defendants. The suit was dismissed, or judgment by default rendered as to all of them but the two who are before us as defendants in error.

The plaintiff sought to recover an undivided third of the premises, which are claimed to be a part of the tract known. as the Agostodero, "and the potrero of the Espiritu Santo grant," situated between the Arroyo Colorado on the north, the Rio Grande on the south, and extending from a thick wood on the west to the lagunes of the sea on the east. The real controversy between the parties was as to the locality of the eastern boundary line of this tract.

The land in controversy lies between that boundary as claimed by the defendants in error, and the sea and lagunes communicating with the sea.