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The Marine Railway
Posted by Kent McMillan on January 3, 2014 at 4:45 amI spent most of the day working on a report dealing with one of the more unusual land grants that I’ve seen, a conditional patent issued by the State of Texas in 1915. Yes, the nature of the patent was as a conditional grant that required the patentee to perform certain duties or forfeit the land. If anyone knows of another conditional patent issued by the State of Texas, I’d be interested to know of it. It’s possible this is the only one.
Under the terms of the grant, the patentee was required to build a dry dock or “marine railway” on the land within a certain period of time and to spend at least $150,000.00 on said construction. In order to figure out whether the patentee actually satisfied those conditions of the grant or whether he failed to and thus voided the rights granted and caused the land to revert to the State in 1925, I had to know exactly what a “marine railway” was.
While I’m sure all the Easterners have one right down the street from them, for those who don’t, it’s this:
Kent McMillan replied 10 years, 8 months ago 8 Members · 14 Replies -
14 Replies
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Quite common here. The yacht club I belong to has two and there are quite a number along the river here.
How does your client prove the dollar amount spent? Have they kept the contracts and receipts from that far back?
I wonder if there was any requirement for the verification to be done at the time?
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There were many conditional grants
The Premption Grants were conditional. From the GLO “Pre-Emption Grant – Similar to the headright grants, pre-emption grants were made after statehood. From 1845 to 1854 homesteaders could claim 320 acres. From 1854 to 1856, and 1866 to 1898, up to 160 acres could be claimed. Homesteaders were required to live on the land for three years and make improvements (such as building a barn) in order to qualify for a pre-emption grant of 160 acres.“
I seem to remember one of the “vacancy” cases around here, one of the cruxes of one of the parties arguments was that the grant was never fulfilled and was therefore forfeited and thus, vacant land.
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There were many conditional grants
Also from the GLO:
Empresario Colonies in the Republic of Texas
Four colonies were established under contracts with the Republic of Texas:
Peters’ Colony (1841), Fisher and Miller’s Colony (1842), Castro’s Colony (1842) and Mercer’s Colony (1844). Heads of families were eligible for land grants of 640 acres while single men were eligible for 320 acres. Settlers were required to cultivate at least fifteen acres in order to receive the patent.
Fourth Class Headright – Issued to those who arrived between January 1, 1840 and January 1, 1842. The amounts issued were the same as for third class headrights, plus the requirement of cultivation of 10 acres.
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The Marine Railway ~ Trent Severn Waterway
Kent-
The Trent Severn is now primarily a Federal recreational use waterway.
There is a marine railway in these links:
http://www.pc.gc.ca/eng/lhn-nhs/on/trentsevern/visit/visit6/lock44.aspx
http://www.youtube.com/watch?v=n0xy8Bb5z24
When would you wish to come and survey and inspect ?
(At this time of year you’ll need your heated sombrero and winterized
surveying kilt 😀 )Cheers,
Derek
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So Where Around Austin, Texas Might This Grant Be ?
Or are you working far from home?
Were not all “Homestead” grants conditional?
Paul in PA
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There were many conditional grants
> The Premption Grants were conditional.
Yes, and so were the 3rd-Class Certificates, however in neither case was patent to be issued without proof of the conditions of the grant having been met.
What is possibly unique about this patent is that it was issued conditionally, i.e. provided for certain conditions to be met or the rights granted would be void and the land would revert to the State.
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> How does your client prove the dollar amount spent? Have they kept the contracts and receipts from that far back?
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> I wonder if there was any requirement for the verification to be done at the time?In this case the law that authorized this grant didn’t require verification. I think that the legislators assumed that a conspicuous work like a dry dock or significant marine railway would be obviously there or not considering there was a nearby port.
What my work has entailed has actually been the other side of the coin: demonstrating that the evidence shows neither a dry dock nor marine railway of any sort, let alone one costing more than $150,000.00, was built prior to 1925 and that the clause requiring that the property revert to the State was operative as of 1925.
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Kent
Here are several examples whereby the individual didn’t fulfill the requirements and the land then reverted to the public domain.
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That’s interesting, but I wonder how one could prove that after so long a time. I mean, there are all kinds of scenarios that would result in all evidence of its existence having been destroyed long ago. If I recall, conditions subsequent are deemed to have been met if not challenged within a reasonable time frame. Of course, when the power of the State is involved all bets are off.
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> That’s interesting, but I wonder how one could prove that after so long a time.
There are two lines of evidence. There are the statutes themselves that extended the time for the patentee to have completed the construction. The original deadline of the 1915 act was 1920 for the construction of the dry dock or marine railway(s) at a cost of at least $150,000. That was extended to 1922 by an amendatory act in 1919. From that fact alone, the reasonable presumption arises that the construction had not been done as of the date of the statute. Then, in 1921, yet another act was passed extending the deadline to 1925 and stating that the patentee “has been unable to obtain construction material and labor sufficient to make the expenditure of said $150,000.00 within the time required” by the law of 1919.
The 1930 edition of the USGS 7.5-minute quadrangle map shows no dry-dock or marine railway in place and shows a natural-appearing shoreline that is nearly identical to the shape of the natural shore in 1915 prior to the grant to the patentee.
Other evidence of the patentee’s failure probably exists in either the GLO correspondence files or the local newspapers. It appears that the patentee acquired the land speculatively, hoping to land a contract with the US Navy, and flopped. It ought not to be prohitively difficult to document that failure.
The other element of the situation is that the land was completely submerged by the waters of the State in 1915 and apparently remained so in 1930 and afterwards. So the State has been in actual possession of the land in a sense since the reversionary clause became operative in 1925.
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Kent
> Here are several examples whereby the individual didn’t fulfill the requirements and the land then reverted to the public domain.
It looks to me as if you’re confusing the issuance of a conditional certificate upon which a survey is then made or the application for a homestead upon which a survey is made with the actual issuance of a conditional patent.
In both of the first two situations, the holder of the certificate and the applicant had to provide proof that the conditions had been met before a patent would issue. That is unremarkable. The conditional patent on the other hand is quite rare in Texas.
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That sounds like an interesting problem. Is it the case that the land has been assumed to be in private ownership since at least the 1910s, possibly changing hands a few times over the years, but someone is now challenging the title? Would it revert back to public ownership if successful?
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Not from the state but here is the history on grants that were taken away when Colorado County was part of Austin’s colony government.
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> Would it revert back to public ownership if successful?
Actually, right now the land is unimproved mud flats submerged by the waters of a bay and all that is probably required to quiet title is for the State to bring a suit for a declaratory judgment regarding the failure to meet the conditions of the patent prior to the deadline set out in the patent (which was 1920 per the language of the patent). Upon a favorable decree, the patent could be immediately canceled and rendered void, the State returning the land (and its mineral estate) to the assets of the Permanent School Fund.
As a footnote, I realize that I forgot to mention two other important pieces of evidence against a dry dock or marine railways having been constructed. The additional points are (c) there are no roads whatsoever shown either in 1930 or 1943 leading to the adjoining upland along the shore near the submerged tract and (d) there was only at most 8 ft. of water at any point along the boundary of the submerged tract and no dredging of a channel, slip, and/or turning basin was done in the harbor beyond the submerged tract that a major dry dock of marine railway would have required to actually get a major ship to the facility.
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