Fannin County v. Riddle
51 Tex. 360
Tex.
1879
Check Treatment
Bonner, Associate Justice.

If it be admitted that the *366рlaintiff on the trial below sustained by competent testimony the allegations upon which it was sought to avoid the validity of the surveys of the school lauds mаde for Fannin county, then the two material questions, which are decisive of this case, are—

1. Were said surveys forfeited if they were not returned to the clerk of the County Court, as required by section 3 of the act of January 26, 1839? (Paschal’s Dig., art. 3466.)

2. Were they forfeited if not returned to the general land offiсe on or before the 31st of August, 1853, as required by the first section of.the act of February 10, 1852 ? (Paschal’s Dig., art. 4562.)

First. Section 3 of the act of January 26,1839, (Paschal’s Dig., art. 3466,) provides: “ When said lands are surveyed in accordance with this act, the surveyor shall return a correct description of the same, with the field-notes of the survey, to the clerk of the County Court, who shall record same and forward a transcript of the same to the commissioner of the genеral ‍‌‌​‌​​‌​‌​​​​‌​​​​‌​​‌​​‌​​‌‌​​‌‌‌‌‌‌​‌‌‌​​​‌‌‌​‍land office, after it is recorded, with his certificate and the seal of office thereto attached; and when land so surveyed is not situated in the county for which it is surveyed, the description and field-notes shall be recorded in the county where it is surveyed, as well as in the county for which it is surveyed, аnd forwarded to the land office as above described.”

The act does not specify any time within which the surveys shall be returned to the clerk of the County Court, or that they shall be forfeited unless so returned. We are of opinion that the failure of the surveyor to make such return should not prejudice the rights of the county to the lands which have been surveyed for the benefit of public schools. (Stringer v. Lessee of Young, 3 Pet., 339; Taylor v. Brown, 5 Cranch, 234.)

Second. We are also of opinion that the act of February 10, 1852, (Paschal’s Dig., art. 4562,) requiring field-notes of all surveys made previously to the passage of the act to be *367returned to the general land office on or before the 31st of August, 1853, or they should become' null and void, does not apply to surveys made for the benefit of public schoоls.

- It has been the policy of Texas, both as a Republic and as a State, to encourage education by a liberal donation from her magnificent public domain, and to preserve and give direction to the same by judicious legislation. By the above act of January 26, 1839, fifty leagues ‍‌‌​‌​​‌​‌​​​​‌​​​​‌​​‌​​‌​​‌‌​​‌‌‌‌‌‌​‌‌‌​​​‌‌‌​‍of land were set apart as a university fund, and each county was entitled to have three leagues surveyed for the benefit of a general system of education. This, by subsequent legislation, was increased to four leagues. (Paschal’s Dig., arts. 3468, 3476, 3550.)

So guarded was the State to protect these lands and to place them on a different tenure from those held by individuals, that by the act of August 30, 1856, (Paschal’s Dig., art. 3470,) it was provided that no statute of limitations should run in favor of аny one who had theretofore settled, or might thereafter settle, upon the same. This salutary provision was subsequently incorporated into the organic law of the State. (Const. 1876, art. 7, sec. 6.)

These lands were intended for the wise purpose of public education, which, by the Constitution of 1876, is declared to be essential to the preservation of the liberties and rights of the people. The counties are the mere trustees to carry оut this purpose, and the lands are given to them, not to divest the body politic of their control and benefit, but for the purpose of convenience of designation and distribution. This is evident from the jealous protection and direction which the people have exercised over them in their several organic and legislative enactments. At the time of the institution of this suit, by express provision of the Constitution then in force, the public lands befоre given to counties were under the control of the State through the Legislature. (Const. 1869, art. 9, sec. 8.)

It is held in Kuechler v. Wright, 40 Tex., 600, that the alternate or even-numbered sections of land reserved for *368the use of the State by the act incorporating the Memphis, El Paso and Pacific Railroad Company, and which by section 3 of article 10 of the Constitution of 1866 were set apart for a perpetual school fund, had thereby been placed beyonddhe powеr of the Legislature ‍‌‌​‌​​‌​‌​​​​‌​​​​‌​​‌​​‌​​‌‌​​‌‌‌‌‌‌​‌‌‌​​​‌‌‌​‍to divert to any other purpose. A similar provision was made by section 6 of article 9 of the Constitution of 1869, in force at the dаte of the institution of this suit, and by section 2 of article 7 of the Constitution of 1876, now in force.

Even had' the Legislature the power to thus divert them, we do not think, unless there had been express words or necessary implication to that effect, that the State could have intended by the above act of February 10, 1852, to have declared, by reason of the negligence of her own agents, that as vacant and belonging again to her public domain which shе had long before set apart for one of the most important purposes for which it was her settled policy that this very domain should be used, aud tо which one-half of the same, under her present Constitution, is unreservedly dedicated.

The appropriation of the school lands was made by dirеct grant of the government, the highest character of title. They were set apart to a particular use, aud would not by any intendment be construеd to have been within the terms of a subsequent act by which a different appropriation was made. (Kuechler v. Wright, 40 Tex., 606; Wilcox v. Jackson, 13 Pet., 498.)

It is believed that a very different rule shоuld prevail in a case of this character from that which would obtain between individuals, and that the reasons which prompted the passage оf the act in question did not apply to the lands thus held in trust for the people of the State for the use and benefit of public schools.

In the case of Parish v. Weatherford, 19 Tex., 209, it was decided that the act of February 10, 1852, (Paschal’s Dig., art. 4568,) which required ‍‌‌​‌​​‌​‌​​​​‌​​​​‌​​‌​​‌​​‌‌​​‌‌‌‌‌‌​‌‌‌​​​‌‌‌​‍surveys to be returned within twelve months, did not apply to preemption claims. One of *369the reasоns given was, that the claimant resided upon the land, and this was sufficient to put the locator upon inquiry.

In the case of Milam County v. Robertson, 33 Tex., 366, it was held, that the fact that four leagues of schоol land had been surveyed in a single county, must, in the nature of things, have been sufficiently notorious to be a cogent circumstance of notice tо persons making subsequent locations. It was further held, that if the above act of February 10, 1852, had any application to school lands granted to the several counties, the omission of the county to comply with its provisions was a' dereliction of which the State alone could take advantage; that it would be not only contrary to law,, but much against public policy, to allow the interests of the-whole community to be prejudiced by the negligence of the; trustees, when the parties seeking the advantage are chargeable with notice of the trust. The record in the case nоw before the court shows that appellee had such actual notice.. The act having been thus construed by this court years ago,, we seе no reason on principle why we should depart from it.

In our opinion, the act of November 29, 1871, did not embrace a case of legislative grаnt like the present, but surveys made by virtue of certificates, bounty warrants, and! scrip.

As the plaintiff does not set up a cause of action which: would be good on general demurrer, or on motion ‍‌‌​‌​​‌​‌​​​​‌​​​​‌​​‌​​‌​​‌‌​​‌‌‌‌‌‌​‌‌‌​​​‌‌‌​‍in arrest of judgment, the judgment of the court below is reversed and-, the cause dismissed.

Reversed and dismissed.

Chief Justice Moore dissented from the views expressed! in this opinion.