STAYTON, Chief Justice.
—This is an action of trespass to try title brought by appellee to recover lands claimed by appellants through preemptions.
Appellee is a private corporation, incorporated under an act approved November 7, 1864. Special Laws, 1864, p. 4. Appellee claims the land under the Act of December 15, 1863, the first and fourth sections of which are as follows:
1. Any person, company, or corporation desiring to avail themselves of the benefits of this act shall erect and put into successful operation by the 1st day of March, 1865, new and efficient machinery for the manufacture of iron from ore, or for the manufacture of cotton or wool into thread or cloth, or for the "manufacture of fire arms, nitre, sulphur, powder, salt, cotton or woolen cards, and spinning jennies, or paper and oil.”
“4. Any person, company, or corporation hereafter erecting and putting into efficient operation by the 1st day of March, A. D. 1865, any machinery of the character described in the preceding sections of this act shall be entitled to receive from the State a grant at the rate of one section of 330 acres of land for every 81000 worth of machinery so erected and put into efficient operation.” Pasch. Dig., arts. 4433-4439.
Appellee was incorporated “for the purpose of manufacturing cotton and woolen fabrics.”
The second and third sections of the act provide for making the appraisement of the property, and so far as necessary will be hereafter set out. The other sections provide the manner in which those acquiring right under the act may cause this to attach to particular lands.
[236]*236It is claimed by appellee that it complied with all the requirements of the act, and thus became entitled to the land in controversy. The cause was tried without a jury and judgment rendered for the plaintiff.
It is urged that the act in question in its entirety was in aid of the war between the States, and therefore void under constitutional provisions; but in view of other questions presented we do not deem it necessary to pass on that question.
The record shows that the machinery was bought by Ward, Hunger, and Smith, a copartnership, and tends to if it does not conclusively show that the machinery was erected and put in operation by them before the incorporation of appellee; but upon that question the court found “that said machinery was put in operation in the fall or winter of 1864, but whether by Ward, Hunger & Co. or plaintiff the proof does not show.” The machinery and buildings became the property of the corporation after its incorporation in some manner not shown, and its former owners with others became stockholders, and this seems to have been contemplated when the charter was obtained.
If Ward, Hunger & Co. acquired any right to lands, this they never transferred to appellee, unless this right would pass as an incident to the property. Among others the court made the following findings:
“6. That the machinery had been used before it was purchased by either Ward, Hunger & Co. or by, plaintiff, and was not new when erected and first used m Bastrop County, but was good and efficient second hand machinery, and was successfully operated until about the year 1866, if no longer.”
“23. The Bastrop Manufacturing Company did not erect any new machinery or put new machinery in successful operation between the 1st day of March, 1861, and the 1st day of March, 1865, but the machinery operated by it was of the kind and operated in the manner and during the time shown in the fourth, fifth, and sixth findings.”
“5. That the principal part of the building in which the machinery was placed was erected several years prior to 1863, possibly between 1851 and 1853, but was suitable for the business.”
“21. Ward, Hunger & Co. purchased the principal part of the building in which the machinery was erected in the spring or summer of 1863, for the sum of 82000.”
The last four findings are fully sustained by the evidence. The first inquiry arising is, Do these findings show facts that entitle Ward, Hunger & Co. or appellee to land under the act?
The law required the machinery to be erected and put in successful operation to be “new and efficient.”
The court found that no new machiney had been erected and put in operation within the time prescribed, and this would seem to be conclusive of the case, unless the words “new ” and “efficient” meant the same.
[237]*237We have not the conclusions of law found by the court, except as these may be gathered from the general judgment rendered for the plaintiff.
To reach that judgment the court must have found that the words "new” and "efficient” had the same meaning, or that the action of the Governor and appraisers, hereafter to be referred to, was conclusive of the right of appellee.
Efficient machinery means such as is capable of well producing the effect intended to be secured by the use of it for the purpose for which it was made, and this may be done, for a time, as thoroughly by machinery which has been as by that never before used; but efficient machinery would not necessarily be “ new machinery.”
The word "new,” standing alone, would mean recently manufactured or invented, and this would embrace machinery that had been used before it was erected at Bastrop; but if this was the sense in which the word was used in the act, the evidence would not justify the holding that the machinery was new, for it was not shown that the machinery was either recently invented or manufactured.
Looking to the matter to which the word relates, the purpose to be secured, and the fact that the machinery was required to be efficient as well as new, by the words "new machinery” was obviously meant machinery in condition as when first manufactured—not worn or defaced by use in any degree.
The word was evidently used in opposition to the words "old ” or "second hand,” and in the sixth finding the judge who tried the cause clearly recognized that this was the sense in which the word was used.
By "second hand” machinery is meant such as has been previously used by another person.
Many illustrations of the use of the word "new” readily suggest themselves. If the purpose had been only to require good or serviceable machinery, the requirement that the machinery should be efficient would have been sufficient.
The intent of the Legislature evidently was to require machinery which had not been before used, and thus rendered in a degree less durable or valuable.
We are therefore of opinion that the evidence does not show that either Ward, Munger & Co. or appellee, within the time prescribed, erected new and efficient machinery.
A part of the machinery erected was purchased in England, where it had been used, and part had before been used in the country for other purposes.
The main building was erected and used for other purposes many years before the machinery was placed in it.
If, however, it had been shown that the machinery was both new and efficient, the burden of proving that it was erected and put in successful [238]*238operation by appellee, or that after so erected and put in operation by Ward, Hunger & Go.,
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STAYTON, Chief Justice.
—This is an action of trespass to try title brought by appellee to recover lands claimed by appellants through preemptions.
Appellee is a private corporation, incorporated under an act approved November 7, 1864. Special Laws, 1864, p. 4. Appellee claims the land under the Act of December 15, 1863, the first and fourth sections of which are as follows:
1. Any person, company, or corporation desiring to avail themselves of the benefits of this act shall erect and put into successful operation by the 1st day of March, 1865, new and efficient machinery for the manufacture of iron from ore, or for the manufacture of cotton or wool into thread or cloth, or for the "manufacture of fire arms, nitre, sulphur, powder, salt, cotton or woolen cards, and spinning jennies, or paper and oil.”
“4. Any person, company, or corporation hereafter erecting and putting into efficient operation by the 1st day of March, A. D. 1865, any machinery of the character described in the preceding sections of this act shall be entitled to receive from the State a grant at the rate of one section of 330 acres of land for every 81000 worth of machinery so erected and put into efficient operation.” Pasch. Dig., arts. 4433-4439.
Appellee was incorporated “for the purpose of manufacturing cotton and woolen fabrics.”
The second and third sections of the act provide for making the appraisement of the property, and so far as necessary will be hereafter set out. The other sections provide the manner in which those acquiring right under the act may cause this to attach to particular lands.
[236]*236It is claimed by appellee that it complied with all the requirements of the act, and thus became entitled to the land in controversy. The cause was tried without a jury and judgment rendered for the plaintiff.
It is urged that the act in question in its entirety was in aid of the war between the States, and therefore void under constitutional provisions; but in view of other questions presented we do not deem it necessary to pass on that question.
The record shows that the machinery was bought by Ward, Hunger, and Smith, a copartnership, and tends to if it does not conclusively show that the machinery was erected and put in operation by them before the incorporation of appellee; but upon that question the court found “that said machinery was put in operation in the fall or winter of 1864, but whether by Ward, Hunger & Co. or plaintiff the proof does not show.” The machinery and buildings became the property of the corporation after its incorporation in some manner not shown, and its former owners with others became stockholders, and this seems to have been contemplated when the charter was obtained.
If Ward, Hunger & Co. acquired any right to lands, this they never transferred to appellee, unless this right would pass as an incident to the property. Among others the court made the following findings:
“6. That the machinery had been used before it was purchased by either Ward, Hunger & Co. or by, plaintiff, and was not new when erected and first used m Bastrop County, but was good and efficient second hand machinery, and was successfully operated until about the year 1866, if no longer.”
“23. The Bastrop Manufacturing Company did not erect any new machinery or put new machinery in successful operation between the 1st day of March, 1861, and the 1st day of March, 1865, but the machinery operated by it was of the kind and operated in the manner and during the time shown in the fourth, fifth, and sixth findings.”
“5. That the principal part of the building in which the machinery was placed was erected several years prior to 1863, possibly between 1851 and 1853, but was suitable for the business.”
“21. Ward, Hunger & Co. purchased the principal part of the building in which the machinery was erected in the spring or summer of 1863, for the sum of 82000.”
The last four findings are fully sustained by the evidence. The first inquiry arising is, Do these findings show facts that entitle Ward, Hunger & Co. or appellee to land under the act?
The law required the machinery to be erected and put in successful operation to be “new and efficient.”
The court found that no new machiney had been erected and put in operation within the time prescribed, and this would seem to be conclusive of the case, unless the words “new ” and “efficient” meant the same.
[237]*237We have not the conclusions of law found by the court, except as these may be gathered from the general judgment rendered for the plaintiff.
To reach that judgment the court must have found that the words "new” and "efficient” had the same meaning, or that the action of the Governor and appraisers, hereafter to be referred to, was conclusive of the right of appellee.
Efficient machinery means such as is capable of well producing the effect intended to be secured by the use of it for the purpose for which it was made, and this may be done, for a time, as thoroughly by machinery which has been as by that never before used; but efficient machinery would not necessarily be “ new machinery.”
The word "new,” standing alone, would mean recently manufactured or invented, and this would embrace machinery that had been used before it was erected at Bastrop; but if this was the sense in which the word was used in the act, the evidence would not justify the holding that the machinery was new, for it was not shown that the machinery was either recently invented or manufactured.
Looking to the matter to which the word relates, the purpose to be secured, and the fact that the machinery was required to be efficient as well as new, by the words "new machinery” was obviously meant machinery in condition as when first manufactured—not worn or defaced by use in any degree.
The word was evidently used in opposition to the words "old ” or "second hand,” and in the sixth finding the judge who tried the cause clearly recognized that this was the sense in which the word was used.
By "second hand” machinery is meant such as has been previously used by another person.
Many illustrations of the use of the word "new” readily suggest themselves. If the purpose had been only to require good or serviceable machinery, the requirement that the machinery should be efficient would have been sufficient.
The intent of the Legislature evidently was to require machinery which had not been before used, and thus rendered in a degree less durable or valuable.
We are therefore of opinion that the evidence does not show that either Ward, Munger & Co. or appellee, within the time prescribed, erected new and efficient machinery.
A part of the machinery erected was purchased in England, where it had been used, and part had before been used in the country for other purposes.
The main building was erected and used for other purposes many years before the machinery was placed in it.
If, however, it had been shown that the machinery was both new and efficient, the burden of proving that it was erected and put in successful [238]*238operation by appellee, or that after so erected and put in operation by Ward, Hunger & Go., they had transferred to appellee their right to land thus acquired, rested upon appellee; for the right to land if acquired by Ward, Hunger & Co. would not pass as an incident to the machinery and property with which it was connected.
There was no evidence that Ward, Hunger & Co. transferred to appellee any right they may have had to acquire lands.
The court, while finding that the machinery was put in operation in the fall or winter of 1864, expressly declared that the evidence did not show whether this was done by Ward, Hunger & Go. or by appellee.
The burden of proof being on appellee this was fatal to its case, unless it had shown that Ward, Hunger & Co., after acquiring right to lands, transferred this to appellee. There was neither finding nor evidence to justify $ finding that Ward, Hunger & Co. transferred any such right to appellee. It is contended, however, that the act of the Governor in appointing an appraiser and of the appraiser in making an appraisement of the property is conclusive of appellee’s right to the land.
The second and third sections of the act on which appellee bases its right is as follows: “Upon being notified of the erection and completion of any machinery of the kind described in the foregoing section, and upon being satisfied that said machinery was erected and put in operation within the time prescribed in the first section of this act, it shall be the duty of the Governor and owner or owners of said machinery to appoint each one disinterested person to act as commissioners, who shall appoint a third commissioner to act with them in the valuation of said machinery; said commissioners shall, before making said valuation, take and subscribe the following oath [here form of oath], which, together with their valuation, shall be returned to the General Land Office.”
“3. It shall be the duty of said commissioners, after making a minute personal examination of said machinery, and after procuring such other evidence of its value as may be accessible to them, to value the same at its true value in specie. In said valuation the necessary buildings and structures erected for the efficient operation of said machinery shall be included, but the land upon which they are situated shall not be valued.” Pasch. Dig., arts. 4434, 4435.
To show the appointment of a commissioner on the part of the State appellee offered a certified copy of a paper as follows:
“ Governor’s Oeeioe, Austin, Texas, November 19,1872.
“ To R. F. Campbell, Bastrop, Texas:
“You are hereby appointed agent of the State of Texas under and by virtue of an act of December 15, 1863, to take an inventory of property said to have been constructed by the Bastrop Manufacturing Company at the town of Bastrop for manufacturing purposes. You will report to me in writing, properly certified, your actions as regards same; it being under[239]*239stood, however, that you look to said company for compensation for your services under this appointment, and not to the State of Texas.
“Respectfully,
“Edmund J. Davis, Governor.”
R. F. Campbell and two other persons made an inventory and appraisement, which was returned to the General Land Office on September 15, 1873, by attorney for appellee, where it, with the affidavits required by the second section, were filed.
A finding of the court was as follows: “22. There is no evidence of plaintiff appointing a commissioner or of plaintiff’s and State’s commissioners appointing a third one to take an inventory and appraise said property except their report, and that is silent as to the fact or time of appointment.”
It is unnecessary to determine whether, if it affirmatively appeared that the Governor had passed on the question confided to him and that the commissioners had been appointed and had acted in strict compliance with the law, their report would have been conclusive of the right of appellee to land.
The fact that the Governor appointed a commissioner for the State, if nothing further appeared, would be strong evidence of the fact that he had made such inquiry as satisfied him that the machinery had been erected and put in operation within the time prescribed by the act; but the commission, if it may be so called, carefully avoided any expression of opinion as to whether the machinery had been erected, or whether if erected this was done by appellee.
It adjudicated no question the Governor was empowered to decide, and required the report to be made to himself instead of to the Commissioner of the General Land Office, as the act seems to have contemplated.
Before the report was filed in the General Land Office the Governor directed the Commissioner not to issue evidences of right to land under the claim, and declared appellee not entitled to lands.
The sole question, however, on which the Governor seems to have been empowered to pass was whether such machinery as was contemplated by the act had been erected and put into operation within,the time prescribed by the act.
The act did not empower him to decide who had done this, and thus became entitled to lands; and appellee could not be relieved by the act of the Governor and commissioners, if their acts were in all respects regular, from the burden of proving that it was entitled to lands by reason ■of the existence of such facts as would confer the right whenever controversy arises as to that fact.
It was also necessary to show that the commissioners were appointed in the manner required by the statute, before their acts could be binding on any person. *
[240]*240The act provided that the owner of the machinery erected should appoint one commissioner, and that he and the one appointed by the Governor should appoint another, and that the three should make and return to the General Land Office an inventory and appraisement.
By “owner or owners of said machinery” was evidently meant the person or persons whose rights were to be affected by the act of the commissioner—the person or persons entitled to receive lands because they had erected machinery in accordance with the terms of the act—and not some person or persons who might acquire title to the machinery after it was. erected and put in operation.
If under the facts shown by the record it was made to 'appear that one of the commissioners was appointed by appellee, and that he and the one appointed by the Governor appointed the third, this would not be sufficient to entitle their report to full faith, unless it was further shown that appellee was entitled to the land, and therefore had the right to appoint a commissioner.
It is unnecessary to inquire whether the steps taken by appellee after the report of the commissioners was filed in the General Land Office were such as would have entitled it to the land in controversy had the right to any land been shown; for without such right being shown it is unimportant what appellee did, in effect, to appropriate any particular land, as is it unnecessary to consider whether the inventory and appraisement did not include items that in no event could enter into the appraisement.
Appellee not having shown any right to the lands, appellants were entitled to a judgment, and the judgment of the court below will be reversed and here rendered in their favor.
Reversed and rendered.
Delivered May 9, 1890.