Bacon and Graves v. State , 2 Tex. Civ. App. 692 ( 1892 )

^* Not received by Reporter with records of December. We adopt the findings of fact filed by the court below, except from finding 20 strike out the words, "were not responsible parties," and add to finding 23 the following: "By the word ``protest,' as used in this finding, is meant that the Treasurer of the State had several times refused to accept this money, and at the time he received it in January, 1891, the parties paying fully understood that the State would contest their claim to this land, and the Treasurer did not receive the money as a legal payment therefor."

The subject matter of this controversy is 466 sections, or 298, 240 acres of land, situated in Scurry, Borden, and adjoining counties.

In 1873 the Houston Texas Central Railway Company, for the purpose of locating its land certificates thereon, had a large amount of surveying done in Scurry, Borden, Howard, Kent, and Fisher Counties. This surveying was done by dividing large blocks of land into sections containing 640 acres each, as will be seen by reference to our conclusions of fact, and was done upon the ground in such way as might be regarded as work in the field. The surveying so done by said railway company embraced all of the land in controversy in this suit, but its right thereto failed by reason of the land at that time being within what is known as the Texas Pacific Railway Reservation.

On December 1, 1882, E.M. Bacon and E.G. Graves made application to the proper surveyor to survey for them a large part of this Houston Texas Central Railway Company land, embracing that in controversy in this suit, which they desired to purchase under the Act of July 14, 1879, amended March 11, 1881, which was generally known as the fifty-cent act.

The surveyor, instead of doing this work upon the ground, simply adopted the work which had previously been done by the railway company, and copied their field notes from the records in his office, and the field notes so obtained were returned by Bacon and Graves, as to the land in controversy, to the General Land Office within the time required by the law above cited. Bacon and Graves, at the time they returned the field notes, knew how the surveyor had obtained them, and that none of the work had been done in the field. The deputies of the surveyor, however, who appeared from the certificates to the field notes to have done this work, had previously been upon the ground in making other surveys, and had seen enough of the railway work to satisfy them of its correctness.

The act under which Bacon and Graves were attempting to acquire this land provides, that "Any person, firm, or corporation desiring to purchase any of the unappropriated lands herein set apart and reserved for sale, may do so by causing the tract or tracts which said person, firm, or corporation desire to purchase to be surveyed by the authorized public surveyor of the county or district in which said land is situated;" and the question as to whether or not the obtaining of the field notes in the manner above set forth should be considered as their having had the landsurveyed within the meaning of this act, constitutes the most important question for our decision in this case.

Prior to the adoption of our Revised Statutes, in prescribing the manner in which surveys were to be made, our law provided, that "The courses of the lines shall be determined by the magnetic needle, and care shall be taken to determine its variation from the pole in the district where the surveys are made. The surveys shall be made with great caution, with metallic chains made for the purpose, and care shall be taken that the place of beginning the survey of each parcel of land be established with certainty, taking the bearings and distances of two permanent objects at least."

Under this law, at an early day, the practice became so common among surveyors to disregard its provisions, by making out field notes in their offices from data obtained otherwise than by work done upon the ground, that the courts in a great number of cases have felt constrained to hold that where the question was raised by subsequent locators, or third parties adversely interested, such acts on the part of the surveyor would constitute a valid appropriation of the land as against such claims. Horton v. Pace,9 Tex. 84; Jenkins v. Chambers, 9 Tex. 231 [9 Tex. 231]; Jones v. Burgett, 46 Tex. 293; Styles v. Gray, 10 Tex. 506; and in Thomson v. Railway, 68 Tex. 392, strong language is used recognizing the adoption of field notes previously surveyed as being a legal survey within the spirit of our law as it stood previous to the adoption of our Revised Statutes. At the same time, it is not to be denied that to constitute a surveystrictly within the terms of our law as it has always been, it would be necessary for the work to be done upon the ground in the manner prescribed by the statute.

In Stafford v. King, 30 Tex. 269, it is said: "It is the duty of the surveyor to run round the land located and intended to be embraced by the survey and patent, to see that such objects are designated on it as will clearly point out and identify the locality and boundaries of the tract, and to extend a correct description of these objects, natural and artificial, with courses and distances, into the field notes of the survey, in order that they may be inserted in the patent, which will afford the owner, as well as other persons, the means of identifying the land that was in fact located and surveyed for the owner." In Sanborn v. Gunter, 84 Tex. 284, it is said: "Actual surveys by which lands granted by the State shall be specifically described and distinguished have always been contemplated and prescribed by our laws. It is true, that under the laws in force when the surveys in controversy were made for the railway company, it was not always regarded as indispensable, however desirable, that the lines of the survey should be actually run and measured on the ground."

Recognizing the great inaccuracies that had frequently resulted from the practices of the different surveyors in attempting to make out field notes in their offices without surveying the land upon the ground, our Legislature, in adopting the Revised Statutes, inserted this provision, (article 3908): "The field notes of each survey shall state: (1) The county or 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, when and where 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 by 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 survey or whomade 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 field notes, has found them correct, and that they are duly recorded, giving book and page of record."

We think the principal object of the Legislature in requiring such strictness in the certificate to be made by the surveyor was to correct the abuse to which the previous law had been subjected as above indicated; and we think it must be conceded, that if the Legislature has the power to condemn what is commonly known as an office survey or office work, and to require its officers, before parting with the public land of the State, to have the surveying actually done in the field, it has done so by the passage of this statute. We know of no case in which the question has been raised as to the validity of an office survey, or the adoption of previous field notes for a survey which should have been made in the field, since the adoption of our Revised Statutes: but our Supreme Court, in several cases, has given strong intimations that its rulings under previous laws would not apply to such surveys.

In Thomson v. Railway, 68 Texas, cited above, in which the very strongest language is used in upholding such surveys under previous laws, it is said: "The manner of making surveys was not so specifically prescribed, nor the requirements so exacting, in the year 1874 as are they by the law now in force," etc. Also, Chief Justice Stayton, in a dissenting opinion delivered by him in Sanborn v. Gunter, 84 Tex. 290, uses this language: "I do not understand the holding to be that the field notes returned into the General Land Office were void because not based on the actual survey of each of the four lines of every section embraced in the block. If such were the holding, it would be useless to refer to decisions made under the laws in force prior to the adoption of the Revised Statutes for the purpose of showing that the rulings of this court have in all preceding cases been to the contrary." Also, see the opinion of the majority of the court in Sanborn v. Gunter, 84 Tex. 284, quoted above.

In Jumbo Cattle Company v. Bacon and Graves, 79 Tex. 12, in speaking of what would constitute a survey of this land under the Acts of 1879 and 1881, it is said: "We think, too, that the agreed statement shows that they have taken all the steps required of them to perfect their right to the land had these acts remained in force. However improbable it may be that this vast quantity of land could have been surveyed into sections of 640 acres each within two days, we feel bound to follow the explicit agreement, that on January 19 and 20, 1883, the said surveyor of Palo Pinto Land District surveyed the lands in controversy into tracts of 640 acres each."

It will be borne in mind that the question presented for decision in this case is not whether the field notes, made out as indicated in the first part of this opinion, constitute such a survey as the officers of the State could adopt, should they see proper to do so, nor whether it is such an absolute nullity as could be taken advantage by a third party; but the question is, does it constitute such a survey within the meaning of the law as the State can be compelled to accept in opposition to its wishes? The appellants are seeking to enforce against the State an executory contract, and base their right to do this upon the ground that they have complied with their part of such contract. In such case, we think they should show that they have obtained the field notes in the manner the State said they should be obtained in its proposition, and not that they have got as good field notes in some other way as would have been obtained had they complied with the State's offer. Had an individual owned this large body of land, and had published and offered to sell to any person 640 acres, who would have it surveyed by the authorized public surveyor of the county in which the land was situated, and that such surveyor must certify that the work was actually done in the field, we think it would hardly be contended that the proposed purchaser could file his petition against the owner, setting up that the surveyor had copied some field notes for him from the work which had been done by some other surveyor years before, and that by reason of the field notes thus obtained he had a right to compel the owner to accept such field notes as a compliance with his offer, and to execute a deed for the land embraced therein; and we see no reason why a different rule should be applied to the State than that applied to an individual under similar circumstances. We know of no case in which the State, as a compliance with an executory contract, was held bound against its wish to accept one of these office surveys, even under the old law; and still less do we believe that it could be compelled to accept such field notes under the law as it was at the time these surveys purport to have been made.

We think the court did not err in overruling appellants' special exceptions to the petition of the State. Appellants had filed an application to purchase land under the Act of 1879, giving the description of their desired purchase substantially as set forth in the petition in this case, thereby showing that they assert claim to that part of the State's land, and we think they can not be heard to say that such description was not sufficient in a petition brought to cancel their claim; besides, the answer filed by appellants contained a sufficient description of that part of the land embraced in the State's petition which they claimed, and we see no reason why such description would not serve as a basis for the judgment rendered.

We also see no objection to the form of the State's petition. State v. Delesdenier, 7 Tex. 76; The State v. Kroner, 2 Tex. 492 [2 Tex. 492]; Day Land and Cattle Co. v. The State,68 Tex. 535.

We do not now consider it an open question in this State, that the State, in a suit of this kind, is not required to make a tender of the money received by it. The State v. Snyder,66 Tex. 687; The State v. Thompson, 64 Tex. 690 [64 Tex. 690]; The State v. Rhomberg, 69 Tex. 220 [69 Tex. 220]; Randolph v. The State, 73 Tex. 485.

It will be seen from the conclusions of fact adopted by us, that we are of opinion that the finding of the court below, that Graves was an employe in the Land Office at the time he entered into the contract with Bacon to acquire this land, is supported by the evidence. We think the circumstances disclosed by the record lead to this conclusion, and would have justified a finding that, before he tendered his resignation, Graves and Bacon had come to an understanding as to the terms of their contract, and that Graves' resignation was tendered in pursuance of this understanding, to enable him successfully to carry out the arrangement that had previously been understood would be made when it might be legally done; but as what we have said disposes of all the land in controversy, and as we have not fully decided as to the effect the agreement above indicated would have in a case where all steps prescribed by the law in the acquisition of the land from the State were taken, after the resignation had become complete, we have thought it best to express no opinion thereon.

We are of opinion that the first conclusion of law by the court below, that Bacon and Graves were not responsible parties at the time they applied to purchase this land, and could not purchase under the law, can not be sustained. We incline to the opinion that the question of responsibility, within the meaning of the Act of 1879, was for the surveyor to decide; and if he held them responsible parties and made the survey, this would be sufficient to hold the land until the expiration of the time allowed the purchaser in which to make payment. We do not believe it was the policy of the law to restrict such sales to persons who, upon investigation of their financial condition, would be found able to pay for the land proposed to be purchased out of their own means, and thereby preclude those equally worthy, who, while not actually owning sufficient property of their own to make the payment, might yet be able, in the time allowed, to make the necessary financial arrangements. White v. Martin, 66 Tex. 340 [66 Tex. 340].

If the court, in its third conclusion of law, intended to hold that because some of the surveys had a greater frontage of permanent water than is permitted under law, this would invalidate all of the surveys, we do not think the conclusion correct. It will be noted, that under this law the land was only to be sold in tracts of 640 acres, and we think that under these provisions each tract must be treated as a separate purchase; and while the sections having such excessive water frontage might be held invalid, in so far as it would enable the proposed purchaser to demand title from the State as to them, yet these invalid sections could still be used as a basis to locate and identify the other surveys in the block.

We are also of the opinion, that the fourth conclusion of law by the court below, to the effect that Bacon and Graves did not make a sufficient tender, can not be sustained as to all of the land. As stated above, we think each section must be taken as a separate purchase, and the tender made by them sufficiently identified all sections upon which they proposed to pay; and the fact that they did not make tender upon all of the sections embraced in the field notes returned by them would only have the effect to invalidate such part of the proposed purchase as was not designated in their offer to pay.

By the decision in Jumbo Cattle Company v. Bacon and Graves, 79 Texas, we understand it to be settled that the tender was in time, and that the Treasurer could not defeat their right to purchase by refusing to receive the money.

We are of opinion, that the court below erred in admitting the certificate of the Commissioner of the General Land Office to prove that surveys 26, 27, 28, 29, 30, 31, and 32 of block M were never returned to the General Land Office (Buford v. Bostick,58 Tex. 67); but we are not prepared to say that the evidence outside of this certificate was not sufficient to sustain the finding of the court below that these surveys were never in fact so returned. There was no objection to the certificate of the Commissioner to prove that he had made search for the field notes of these surveys, and had been unable to find them in the General Land Office, and that they were not at the time of making said certificate in their proper places; and we think it quite as probable that these field notes had been lost or mislaid before they reached the Land Office as after, and for this reason the judgment of the court below as to these surveys could be sustained without reference to the objectionable part of this certificate; but as the bill of exceptions shows that the court below must have considered this part of the certificate of the Commissioner as important evidence to sustain its finding upon this point, we are of opinion, that were it material in the disposition of the case, it would necessitate a reversal as to these surveys.

We think what we have said sufficiently disposes of the other assignments of error made by appellants; and as we find no error in the judgment rendered by the court below, we are of opinion that it should in all things be affirmed.

Affirmed.

A motion for rehearing was refused.