State v. Flick

180 S.W.2d 371
CourtCourt of Appeals of Texas
DecidedOctober 28, 1943
DocketNo. 4251.
StatusPublished
Cited by4 cases

This text of 180 S.W.2d 371 (State v. Flick) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Flick, 180 S.W.2d 371 (Tex. Ct. App. 1943).

Opinion

PRICE, Chief Justice.

This is an appeal by the State from a judgment of the District Court of Crane County entered on an instructed verdict. The State claimed there was a vacancy be *373 tween the west line of Block 32, Public School Land, and the east line of Block B-27, Public School Land. The claimed vacant strip extended the full length of the two blocks and contained about six hundred ten and a half acres of land. Block B-27 lies west of Block 32.

The action was instituted by plaintiff R. N. Flick based on an alleged right to purchase an oil lease as the assignee of two parties who had duly and legally made application to purchase. Among the defendants were Humble Oil Company and the owners of the east tier of sections of Block B-27 and the owners of the west tier of sections in Block 32, and also others who claimed rights in the oil and gas under said strip of land.

The State appeared, intervened and vigorously asserted the alleged vacancy, claiming that the strip in question was un-surveyed Public School Land.

Plaintiff Flick held only the bare legal right to acquire a lease on the vacancy if it existed. He was at all times an employee of the defendant Humble Oil Company; that Company had furnished the money to acquire such rights held by plaintiff, and such rights as he had were held for the use and benefit of that Company. These facts were known to the attorneys for the State at and before the trial of the case. It was the position of the State that the Humble Company, by reason of its application through Flick to purchase the lease on the vacancy, could not be heard to deny that same existed.

If a proper construction of Block 32 fixes its west boundary line at exactly 18 miles from the northeast corner of Block 30, and the east line of Public School Block B-27 is exactly 2,158 varas from the northwest corner of Block B-27 (the mesquite tree corner), the vacancy claimed exists; otherwise, there is no vacancy.

The State asserts that the Corwin survey of Block 32, an office survey, calls for the northwest corner of 32 at an aggregate of 18 miles from the northeast corner of Block 30; as to the east line of B-27 it asserts that while the field notes of that block call for the west line of Block 32, that the call for distance governs, and by that call it falls some - varas short of reaching the west line of 32. The theory is that when the surveyor called for the west line of Block 32 as the east line of B-27, he was mistaken as to the true location of such west line, hence the call for distance governs over the call for such unmarked west line.

Block 32 and Block B-27 are within the T. & P. Reservation, being south of the center line thereof. A brief history of the T. & P. Reservation and an account of the survey thereof is deemed necessary to the proper understanding of the issues of this appé&l.

On February 4, 1856 the Memphis, El Paso & Pacific Railroad Company was by legislative act incorporated to build a line of railway beginning on the east boundary of the State between Sulphur Fork and Red River, running westerly to the Rio Grande opposite or near the town of El Paso. As a bonus for building said line the Act created a reserve of vacant land within eight miles of each side of the extension of said line as same might be designated by survey, recognition or otherwise. Each alternate section surveyed by the Railroad was donated to the Railroad as a bonus. On February 17, 1857 the Railroad filed in the office of the surveyor of Bexar Land District a map designating the line of recognition as the center line of the Reserve. On June 20, 1857, a copy of this map was filed in the General Land Office.

By an Act approved July 27, 1870, and May 24, 1871, authorization was given to the Southern Transcontinental and Southern Pacific roads to participate in the construction of the road. This act provided for the consolidation of the two companies with the Texas & Pacific Railway, and succession of that consolidated Company to the rights of the Memphis, El Paso & Pacific Railway Company.

A legislative act dated May 2, 1873, recites the legal consummation of the consolidation, and further provided that the portion of the Reserve lying west of the 23rd meridian of longitude west from Washington to the Rio Grande be increased in width from 16 miles to 80 miles, the increase being 32 miles on either side of the line of recognition.

The line of recognition intersects with the 23rd meridian of longitude west of Washington at a point S. 45 E. 7,310 varas from Fort Phantom Hills. The center line was run by the T. & P. from this point on a course of 77° W. for its entire length. The T. & P. Surveys were built from this center line. The mile points on this center line are numbered from the intersection with the 23rd meridian. For the location *374 of certificates within the Reserve the surveyors for the T. & P. adopted the following plan: The Reserve was divided into blocks 80 miles north and south (40 miles on each side the center line) and 6 miles wide east and west. These blocks were subdivided by the running of township lines parallel with the center line at distances of 8 miles. The field notes of the land taken by the T. & P. were all filed in the Land Office before 1876.

The T. & P. did not apply certificates to all of the land within the blocks constituting the Reserve. It will subsequently appear, it is thought, that the portion of Blocks 43, 44 and 45 lying south of the center, and occupying the space on the center line between mile points 171 and 189, as delineated by the T. & P., have bearing here.

In order to illustrate the T. & P. system of survey, and show the land appropriated within this area by the T. & P., we here reproduce from appellees’ brief a sketch of that portion of T. & P. Blocks 42, 43, 44 and 45 lying south of the center line.

SKETCH B

*375 Where the sketch shows the blocks to be divided into sections, this portion was appropriated by the T. & P. The balance was not appropriated, but rejected, and, after the T. & P. selection, was part of the unappropriated public 'domain of the State.

The Legislature, by an Act taking effect July 14, 1879, authorized, among other lands, the sale of the unappropriated portions of the Reserve. The Act provided the applicant should have the land surveyed by an authorized public surveyor; further, if the applicant failed to pay the purchase price of fifty cents per acre within sixty days, he should forfeit all his rights and the Land Commissioner might sell the land to any purchaser paying the purchase price thereof.

On April 10, 1882, Gunter & Munson and Maddox Bros, and Anderson filed application with the county surveyor of Tom Green County for the filing, entry and survey, among other lands, of all of the unappropriated public lands lying in T. & P. Blocks 43, 44 and 45 south of the center line of the Reserve. In September, 1882, the land was surveyed for applicants by C. S. Graves, a duly licensed and qualified surveyor. The field notes thereof were duly filed in the Land Office on December 8, 1882. Applicants did not complete their purchase by tendering the purchase price fixed by law.

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180 S.W.2d 371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-flick-texapp-1943.