Houston & Texas Central Railway Co. v. Texas & Pacific Railway Co.

8 S.W. 498, 70 Tex. 649, 1888 Tex. LEXIS 1058

Opinion

Acker, Judge.

Appellant brought this suit in trespass to try title to about one hundred sections of land which it claims by virtue of locations and surveys made in 1873 under valid land certificates issued to it. It was admitted that the surveys were made and field notes returned in the manner and within the time prescribed by law.

Appellee claims the land by virtue of the act' of the Legisla- ■ ture of February 4, 1856, incorporating the= Memphis, El Paso & Pacific Railway Company, subsequent acts of the Legislature relating to lands granted to railroad companies,, and locations and surveys made for it under valid land certificates in 1877, upon which patents were issued.

It was admitted that all of the land lies within eight miles of . the central line of the Memphis, El Paso & Pacific Railway Company’s reservation, as shown by its designation and map filed in the general land office, and in the office of the district surveyor for Bexar land district.

It was also admitted that the appellee by contract and purchase in 1872, and by act of the Legislature of May 2, 1873, became the owner of the properties, franchises and rights, including the land reservation of the Memphis, El Paso & Pacific Railway Company. Appellant relies upon two points for reversal of the judgment, and contends:

1. That the description given of the reservation in the map and designation filed in the general land office, and in the office of the district surveyor of Bexar land district in 1857, is insufficient.

2. That the reservation was forfeited by the provision of section 5, article 10, of the Constitution of 1869.

The charter of the Memphis, El Paso & Pacific Railway Company, granted by act of the Legislature of February 4, 1854, contains the following provision:

“ Section 15. * * * All the vacant public lands within eight miles on each side of the extension line of said road, shall be exempt from location or entry, from and after the time when such line shall be designated by survey, recognition or otherwise. The lands hereby reserved shall be surveyed by said company, at their expense, and the alternate or even sections reserved for the use of the State, and it shall be the duty of said company to furnish the district surveyor of each district through which said road may run, with a map of the track of said road, together with such field notes as may be necessary to the proper understanding and designation of the same.”

On February 17, 1857, the Memphis, El Paso & Pacific Railway Company caused to be filed in the office of the district surveyor of Bexar land district a map and designation of the central line of its reservation through said district. The written ■designation notified the surveyor that the reservation included eight miles north and eight miles south of the designated line. The map and designation were also filed in the general land cffice on June 20,1857. The central line of the reservation is described in the map and designation as follows: “Commencing on the boundary line between the Bexar and Milam land district at a point due east of the southeast corner of a survey of land number four, made in the name of James H. Carothers, according to the map and records of Bexar land district in the general land office; thence in a straight line south seventy-seven minutes west, to a point eight miles south of the southeast corner of Few Mexico; thence due east to the Pecos river.”

• The constitutional convention of 1869 adopted “an ordinance granting'lands to purchasers, to actual settlers, and locators of genuine certificates within the limits of the Memphis, El Paso & Pacific Railway reserve,” which the ordinance does not describe otherwise than by name.

The act of May 2, 1873, contains the following provisions:

■ Section 5. That the public lands heretofore reserved from pre-emption, location and survey, for the benefit of the Memphis, El Paso & Pacific Railway Company, in what is known as the Memphis, El Paso & Pacific Railway reservation, and as designated by the maps, plats and field notes now on file in the general land office. Commencing on the eastern boundary line of the State, in Bowie county, and thence westwardly to the twenty-third meridian of longitude west from Washington, are hereby continued to be reserved from pre-emption, location or survey by the holder of any land certificate or other land claim, for the benéfit of said Texas & Pacific Railway Company and for the benefit of the school fund; and, where the public lands therein have not already been sectionized, said company shall sectionize the same and return the field notes and maps to the general land office. * * * Provided, that nothing herein contained shall be so construed as to affect“or impair the legal rights of third persons.

Section 6. That the said Memphis & El Paso reservation, from the twenty-third meridian of longitude from Washington to the Rio Grande river, as designated by the field notes, maps and reports from the different surveyors of the several land districts of the State, on file in the general land office, is hereby continued to be set aside and reserved from pre-emption, location and survey for the benefit of said Texas & Pacific Railway Company and the school fund.

The act proceeds to set aside an additional width of forty miles on each side of the center of the reservation, so as to make eighty miles from the twenty-third meridian west to a point south of the southeast corner of New Mexico and opposite, after passing that point the reservation of eighty miles is continued to the Rio Grande, bounded north by New Mexico; “the same to include the Memphis & El Paso reservation hereinbefore mentioned,” to continue till 1880. “Provided, that nothing in this section shall impair or affect the rights of any person or persons heretofore legally acquired within said reservations.”

The map and designation have been on file in the general land office since 1857, and the sufficiency of the description of the reservation has been repeatedly recognized by both the legislative and executive departments of the government. The charter does not require a line to be run or surveys to be made as a condition precedent to the reservation taking effect, but expressly gives effect to the reservation from and after the time when such line shall be designated "by survey, recognition or otherwise.” Had the Legislature intended that the line should be actually run before the reservation should take effect, it would not have authorized the line to be designated "by recognition or otherwise.” The description given in the map and designation affords the information necessary for the exact location of the line and» identification of the boundaries of the reserve. We think the court did not err in holding that the description was sufficient.

Opinion adopted May 8, 1888.

The charter of the Memphis, EÜ Paso & Pacific Railway Company, granted by act of the Legislature of February 4,1854, in which the lands were granted and the reserve created, and upon which the company acted and invested its capital, is a contract within the protection of that clause of the Constitution of the United States which declares that no State shall pass any law impairing the obligation of contracts, and this contract was not affected by the provision of section five, article ten, of the Constitution of 1869. (Davis v. Gray, 16 Wall., 216.)

The judgment of the court below being in accord with the conclusions here expressed, we are of opinion that it should be affirmed.

Affirmed.