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Statement of the Case.

which the sales were made, was under article II, section 10, subdivision 1 of the Constitution of the United States, null and void as affecting defendants' vested rights. They prayed for judgment, that the plaintiff take nothing by its suit, and that the defendants have and recover from and of the plaintiff the lands as herein claimed by them, and for further relief.

The State filed its reply to the defendants' answer, and after specially excepting to certain of the allegations of the answer as insufficient, it alleged that the defendants were not entitled or authorized to purchase the lands, and had not complied with the law in reference thereto in any particular, and that if the defendants had tendered the treasurer of the State the money for the lands, as alleged, the treasurer properly refused and declined to receive the same, for that the defendants had not purchased the same from the plaintiff by complying fully with any existing law authorizing the purchase or sale thereof, and that if the defendants or any of them ever paid to the treasurer in January, 1891, the sum of money in said answer stated, the treasurer was not authorized by law to receive it, and this defendants well knew, and that the payment was made after full and explicit notice to defendants that plaintiff repudiated and would vigorously contest the claim of the defendants to said lands, and the defendants paid the same at their peril. The court overruled the defendants' exceptions to the plaintiff's petition and the case came on for trial.

The questions sought to be raised herein by the plaintiffs in error are stated by them to arise under the acts of the State of Texas above mentioned, the one known as chapter 52 of the laws of 1879, and entitled "An act to provide for the sale of a portion of the unappropriated public lands of the State of Texas and the investment of the proceeds of such sale," which act was approved July 14, 1879, and the other known as chapter 3 of the laws of the same State, passed in 1883, and entitled "An act to withdraw the public lands of the State of Texas from sale," approved January 22, 1883. The act of 1881, amending that of 1879, is immaterial to the questions herein arising.


Statement of the Case.

Section 1 of the act of 1879 provided for the sale of all the vacant and unappropriated land of the State of Texas in certain named counties thereof. Section 2 provided that any person, firm or corporation desiring to purchase any of the unappropriated lands therein set apart and reserved for sale might do so by causing the tract or tracts which such person, firm or corporation desired to purchase to be surveyed by the authorized public surveyor of the county or district in which said land was situated. By section 3 it was made the duty of the surveyor, to whom application was made by responsible parties, to survey the lands designated in the application within three months from the date thereof, and within sixty days after said survey to certify to, record and map the fieldnotes of said survey, and within said sixty days to return to and file the same in the general land office, as required by law in other cases. Section 5 provided that within sixty days after the return to and filing in the general land office of the surveyor's certificate, map and field-notes of the land desired to be purchased, it should be the right of the person, firm or corporation who had had the same surveyed to pay or cause to be paid into the treasury of the State the purchase money therefor, at the rate of fifty cents per acre, and upon the presentation to the commissioner of the general land office of the receipt of the state treasurer for such purchase money, the commissioner was bound to issue to said person, firm or corporation a patent for the tract or tracts of land so surveyed and paid for.

By section 1, chapter 3, of the laws of 1883, it was enacted "that all the public lands heretofore authorized to be sold under an act entitled 'An act to provide for the sale of the unappropriated public lands of the State of Texas and the investment of the proceeds of such sale,' approved July 14, 1879, be, and the same are hereby, withdrawn from sale." The proviso contained in the section is immaterial. Prior to the adoption of the Revised Statutes of Texas the manner in which surveys of the public domain were to be made had been provided for by law. It was provided that "the courses of the line shall be determined by the magnetic needle, and

Statement of the Case.

care shall be taken to determine its variations from the pole in the district where the surveys are made. Each survey

shall be made with great caution, with metallic chains made for the purpose, and care shall be taken that the place of beginning of the survey of each parcel of land be established with certainty, taking the bearing and distance of two permanent objects at least." This was long prior to the year 1879. The Revised Statutes of Texas were passed in 1879 and took effect in September of that year, and by article 3908 it was provided "the field-notes of each survey shall state (1) the county or land district in which the land is situated; (2) the certificate or other authority under or by virtue of which it is made, giving a true description of same by numbers, date, where and when issued, name of original grantee and quantity; (3) the land by proper field-notes, with the necessary calls and connections for identification (observing the Spanish measurement for varas); (4) a diagram of the survey; (5) the variation at which the running was made; (6) it shall show the names of the chain-carriers; (7) it shall be dated and signed by the surveyor; (8) the correctness of the survey and that it was made according to law shall be certified to officially by the surveyor who made the same, and also that such survey was actually made in the field, and that the field-notes have been duly recorded, giving book and page; (9) when the survey has been made by a deputy the county or district surveyor shall certify officially that he has examined the fieldnotes, has found them correct, and that they are duly recorded, giving the book and page of the record.”

The case came on for trial in the District Court of Mitchell County in November, 1891. The following among other facts were found by the court: On December 1, 1882, Bacon and Graves made application to the surveyor of the Palo Pinto land district, as such surveyor, to purchase the land in controversy under the above mentioned act of 1879, as amended March 11, 1881, which application was received and recorded by the surveyor on the first above named date. Bacon and Graves paid the fees for filing the field-notes in the general land office entirely within the time required by law. By the

Statement of the Case.

records of the land office the lands in question appeared to have been surveyed at different times, and the field-notes recorded in the surveyor's office in some instances, but not in all. The surveyor of the Palo Pinto land district certified to the respective surveys on the dates the surveys purport to have made. None of the land included in this suit has ever been patented by the State under the Bacon and Graves purchase, and on the 26th of May, 1890, Bacon and Graves transferred by deed of special warranty 579 sections of land to C. C. Gibbs, who holds the same in trust for E. M. Bacon, E. G. Graves and others.

It was further found as a matter of fact "that none of the land in suit was actually surveyed upon the ground by the deputy surveyor who purported to have done so, but they merely copied in the office of the surveyor of the Palo Pinto land district the field-notes of the Elgin survey." That survey was made in July, 1873, for the Houston and Texas Central Railway Company, and the field-notes of such survey were returned to the surveyor's office some time in 1873, and were filed in the general land office November 20 and 26, 1873. These field-notes were "adopted by the surveyor of the Palo Pinto land district and his deputies in making out the field-notes of the land applied to be purchased by Bacon and Graves." The land had been actually surveyed on the ground by Elgin in the manner in which it had been customary for surveyors in Texas to survey large bodies of land, by running the outside boundary lines of the blocks, or parts of them, putting up permanent landmarks, and leaving the interior lines without running. These blocks, in writing up the field-notes, were divided into 640 acre, surveys, and the interior surveys were made without actually running the lines, and Elgin did not run all the lines of any section, unless, as he says, it was done by accident. It had been found by deputy surveyors prior to the adoption of the fieldnotes for Bacon and Graves that the lines run and ascertained by the Elgin survey were as correct as any work of that character in that part of the state, and the deputy surveyors were satisfied as to their substantial accuracy. The deputy survey

Statement of the Case.

ors were deputies under Joel McKee from December, 1882, to March, 1883, and McKee was the surveyor of the Palo Pinto district in which the land in question lay.

On May 16, 1883, the defendants tendered to the treasurer of the State $80,640, and on May 19, 1883, they tendered him the further sum of $104,640, in payment for these lands. These tenders were refused. In January, 1891, Bacon and Graves paid the treasurer $149,320 for said lands, which was received by him "under protest."

The court as conclusions of law found: (1) That Bacon and Graves were not responsible parties, within the meaning of the statute, at the time they applied to purchase this land and could not purchase under the law; (2) that they did not comply with the law by having the lands surveyed as was required by law, and, therefore, could not purchase it; (3) the survey as adopted was not made in accordance with law-is incorrect, totally so-in having a greater frontage on permanent water than is permitted under the acts of 1879 and 1881; (4) Bacon and Graves have never paid or offered to pay for said land until long after the expiration of the time allowed and required by law. The purported surveys of many of the sections of land for which they tendered payment on May 19, 1883, were made after the 50 cent act was repealed, and Bacon and Graves did not separate or offer to separate in their tender the surveys made before the repeal from those made after, and there was consequently no legal tender; (5) at the time Graves entered into an agreement with Bacon to purchase these lands he was an employé of the general land office, and his actions were against the civil and criminal laws of the State; (6) that the State was not bound to return the money paid in January, 1891, to entitle it to judgment for the land. Judgment for the recovery of the lands was duly entered and the defendants appealed from that judgment to the Supreme Court of Texas, which court duly ordered the same to be transferred to the Court of Civil Appeals for the Second Judicial District, before which the case was heard on appeal. That court adopted the findings of fact filed by the court below, excepting it set aside the finding that the defendants

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