28 Tex. 452 | Tex. | 1866
—This suit was brought by the appellant against the surveyor of Ellis county, to cause him to survey for appellant two hundred acres of land situated in said Ellis county, which he claimed to be entitled to by virtue of "a file and location made on the 20th day of November, 1857, with that amount of land scrip issued to birn by the commissioner of the general land office, under the provisions of the law of August 26,1856, authorizing the location, sale, and settlement of the Mississippi and Pacific railroad reserve.
The land claimed by the appellant had been previously surveyed on the 31st of August, 1855, by virtue of a certificate issued on the 25th of April, 1853, by the county court of Ellis county to James Starritt, as a colonist in Peters’ colony; and after appellant’s locatiofi it was patented to said Starritt by authority of a special act of the legislature passed January 30,1858. The land was claimed under this survey and patent by Edward H. Tarrant, and he was joined in the action as party defendant. Shortly after the commencement of the suit Tarrant died, when his widow, now Mrs. Hawkins, who is Ms sole heir and legal representative, was made a party.
The verdict in this . case is unsupported by either law or evidence, and the judgment is therefore erroneous and must be reversed. The land is situated within the Mississippi and Pacific railroad reserve, and was not therefore subject to appropriation by location of the certificate to Starritt at the date of his survey. (Kimmell v. Wheeler, 22 Tex., 84.) The survey was contrary to and in violation of law, and hence absolutely void. The land was not severed thereby from the mass of the public domain. There is no evidence tending to prove a re-survey of the land
The patent was issued on the survey by the direct command of the legislature, and hence the presumption cannot be indulged from it that the commissioner would not have issued it unless there had been a subsequent valid survey to authorize its issuance. The land being unappropriated at the date of appellant’s file, his location gave him an equitable title to it, which was secured to him by all the constitutional guaranties for the protection of private property.
The counsel for the appellees, in an elaborate, ingenious, and very able argument, maintain the proposition, thai the legislature may, as long as' the legal title remains in the State, make such disposition of the public domain as it may deem fit, irrespective of the equitable rights or titles of individuals. However plausibly such a theory may be presented, or however ably it may be sustained, it cannot be sanctioned by the courts so long as the constitution restrains the legislature from taking private property except for public use.
But if there were ever any doubt on this question, it has been so fully settled by former decisions of the court as to preclude further discussion. (Howard v. Perry, 7 Tex., 259; Hamilton v. Avery, 20 Tex., 612; De Cordova v. Galveston, 4 Tex., 470; Sherwood v. Fleming, 25 Tex., Supp., 408.)
It is also insisted by appellees that the land in controversy is not shown by the evidence to be within the Mississippi and Pacific railroad reserve, especially as the law creating this reserve' is, as they insist, a private act, and that it cannot therefore be said that the survey of Starritt’s certificate was on this ground illegal and void. We cannot yield our assent to the proposition, that the law creating this reserve is a private act, of' which the courts of the country cannot take notice. If it were the purpose of the
It is also urge'd that, if the court can take notice of the law creating the reserve, still theré must be proof to show that the land in dispute is situated within it. This is conceded. But it does not follow that it may not be satisfactorily established from circumstantial or presumptive evidence, or deduced as a fact from other facts which are proved or are of judicial knowledge. The reservation east of the 103d parallel of longitude west from Greenwich is from the 31st to the 33d parallel of north latitude. The courts must certainly take notice of the division of the State into counties, and of their locality and contiguity with respect to each other, and of their boundaries and extent, when defined by public laws. And unless they can take notice of the rudimental principles of natural science, and of the geographical positions of these political divisions of the State, the courts cannot say what counties are within these parallels. At least there can he no douht of this in reference to the county in which this land is situated. The court can certainly take notice of the fact that the breadth of this reservation, according to its original, limits, was one hundred and thirty miles, and that, with
The same conclusion may be properly deduced from the fact, that the scrip upon which the appellant made his location could only be located on lands in the reserve. It was received and recognized as a valid appropriation' of the land by the officer charged with the duty of making the survey. If the land were not in the reserve, it was the duty of the surveyor to have rejected the file; not having done so, the court should infer that the land upon which it was located was within the territory, subject to appropriation by claims of this kind.
As the merits of the controversy seem to be conclusively settled by the former decisions of the court on the questions to which we have adverted, we have deemed it unnecessary to discuss the validity of the certificate under which appellees claim the land, and-upon which alone the case seems to have turned in the District Court.
The judgment is reversed, and the cause
Remanded.
