State v. Post

169 S.W. 401, 1913 Tex. App. LEXIS 2

• Court: Court of Appeals of Texas
• Decided: June 18, 1913
• Docket: No. 5202.
• Status: Published

Opinions

JENKINS, J.

The following findings of fact and conclusions of law filed by the trial court herein present a fair statement of the nature and result of tbis suit, and the facts proven:

“This was a suit originally instituted by the plaintiff, C. W. Post, against J. T. Robison, as land commissioner of the state of Texas, and J. E. Ketner and E. D. Duncan, and after the institution of said cause the state of Texas, under leave of the court, intervened in this case and asked for the recovery of certain lands from the plaintiff, claimed to be vacant lands and held by the plaintiff, as set out in the state’s plea of intervention filed herein, and for the rental value of said land. And upon the trial of said cause plaintiff in open court dismissed his cause of action as to the defendants J. T. Robison, J. E. Ketner, and E. D. Duncan, and the said defendants Ketner and Duncan, in open court, dismiss their cross-action, filed herein against the plaintiff, leaving the only issue to be tried by the court upon the plea of intervention of the state of Texas against the plaintiff, C. W. Post. Upon the trial of said issue, I rendered a judgment in favor of the plaintiff upon the state of Texas’ cross-action.

“The state of Texas, through its Attorney General, has requested that I prepare and file the findings of fact and conclusions of law on which the judgment was predicated. I accordingly hereby state said findings of fact and conclusions of law as follows:

“Findings of Fact.

“That the original field notes of the survey offered in evidence in this case do cover part, but do not cover all, the lands sought to be recovered by the state under their plea of intervention in this case. That the corrected field notes of the resurvey made by W. D. Twitchell under the direction of the commissioner of the general land office, under and by virtue of the act of 1887, fully cover all the lands sought to be recovered by the state in this cause in the plea of intervention. That the said W. D. Twitchell, prior to the survey of the land in controversy in this cause, by him, was duly and legally appointed by the then land commissioner of the general land office as a state surveyor for the purpose of ascertaining the conflict and errors in, and making proper corrections of, surveys of land. made for the commission (common) school, university, or asylum funds or other surveys in which the state might be interested directly or indirectly. That the said W. D. Twitchell made and executed a bond in the sum of $10,000, conditioned and payable the same as bonds of county and district surveyors, and that said bond was duly approved by the then commissioner of the general land office, and that the said Twitchell took the oath prescribed by the Constitution for other officers, and qualified as a state surveyor. That the resurvey of the lands in controversy in this cause by the said W. D. Twitchell was made by the request and upon the application of the owners of the lands. And that the said owners paid all of the expenses incurred in making-such corrected surveys of said lands. And that, in making said resurveys of said lands, the said W. D. Twitchell acted under the control and direction of the then commissioner of the general land office, and said survey was made by the said W. D. Twitchell in accordance with and according to the instructions in writing given by the said land commissioner. That, after making said survey as aforesaid, ■ the said W. D. Twitchell returned the field notes of the survey or resurvey as made by him to the general land office, and the said field notes, when so returned to the land office, were adopted and approved by the commissioner of the general land office, and thereafter- the land commissioner forwarded to the surveyor of the county in which said lands so resurveyed by the said Twitchell as aforesaid lay, certified copies of said field notes and said field notes were duly recovered (recorded) as a part of the records of said surveyor’s office.

“Conclusions of Law.

“The Act of 1887, p. 107, provides that for the purpose of ascertaining the conflicts and errors in and making proper correction of surveys of lands made for the common school, university, or asylum fund, or other surveys in which the state may be interested, directly or indirectly, in cases where, from discrepancies or imperfections in field notes, it may become necessary for the proper compilation of maps, or for the proper location and identification of said lands upon the ground, the commissioner of the general land office is hereby invested with full power and authority to have such surveys made as he may deem necessary and to appoint competent surveyors for this purpose. And said act further provides that any survey- or appointed under the provisions of this law shall make and execute a bond in the sum of $10,000, conditioned and payable the same as bonds of county and district surveyors; that he shall also take the oath prescribed by the Constitution for other officers, said bond to be approved by the commissioner of the general land office, and shall be conditioned as other surveyors’ bonds. It also provides that said surveyor shall be under the control and direction of the commissioner of the general land office, and, under such direction, may survey the common school, university, and asylum lands, or other lands in which the state may be interested,' and prepare and return field notes of same and certify to any and áll facts and generally do and perform such official acts as might lawfully be done by a county or district surveyor-, and shall sign his name officially as ‘state surveyor.’ Said act also provides that the commissioner of the general land office may have any lands belonging to the common school, university, or asylum fund, or other lands in which the state may be interested or lands alternating therewith, surveyed or resurveyed, and field notes oí- corrected field notes of same returned to his office by any surveyor appointed under this law, which field notes shall have the same force and effect as if made by the county or district surveyor ■ of the county or district in which said land lies; and, upon the adoption and approval .of said field notes by the commissioner of the general land office, he shall forward to the surveyor, of the county or district in which said land lies, certified copies of said field notes, which thereafter shall be a part of the record of said surveyor’s office. In carrying out the provisions of this law, the commissioner of the general land office may, when requested by the owner of lands alternating with the lands resurveyed, under the provisions of this law, cancel patents, and in lieu thereof issue patents in accordance with said resurvey, provided that all such owners shall pay the expenses incurred in making such corrected surveys of their lands, and'in issuing said patents.

“I therefore conclude, as a conclusion of law, that under said statute of 1887, as above set out, the commissioner of the general land office had the right, power, and authority to have said resurvey made by the said W. D. Twitchell, under his control and direction, and, when so made, to approve the said corrected field notes, if found by him correct and in compliance with his direction, and that when said corrected field notes were examined and approved by said land commissioner, and certified copies of the same forwarded to the surveyor of the county in which said land lies, and when made part of the records of said surveyor’s office, said corrected field notes so made, returned, and filed are binding and of full force and effect against all parties affected thereby, including the state, in the absence of fraud or mistake, or the intervening rights of other parties, not parties thereto; and, no fraud or mistake or the intervening rights of other parties having been shown in this case, judgment has been rendered for the plaintiff upon the intervention of the state filed in this cause.

“Geo. Calhoun,

“Judge Fifty-Third Judicial District.”

It is true, as found by the court, “that the original field notes of the surveys offered in evidence in this case * * * do not cover all of the land sought to be recovered by the state.” That is to say, as we understand the evidence, the surveys to the south and west of the alleged vacancies are located upon the ground by established corners, found and recognized by objects called for in their field notes. The only corner in the surveys to the east and north of the alleged vacancies, capable of being identified by objects called for in the field notes, is the Cobb corner, nine miles east of the alleged western vacancy, and ten miles north of the alleged southern vacancy. Such being the case, the proper way to resurvey the lands to the east and north is to begin at said Cobb corner and run out the survey’s course and distance as called for in the field notes. To so run said surveys would leave at least a portion of the land sued for vacant. But the surveyor Twitehell assumed that a series of pits and-mounds extending nine miles north and south were the corners of a tier of said surveys six miles west of the Cobb corner; and, if so, said tier of surveys would be further west and south than course and distance from the Cobb corner would place them by about the width of the alleged vacancy. If we were required to pass upon this as an original proposition from the evidence in the record, we would say that Twitehell made a mistake in locating the surveys east and north of the alleged vacancies; but, as we understand the act of 1887, it does not follow from this that we should reverse the case.

We think the commissioner of the land office was authorized under the act of 1887 to have these lands resurveyed. Gen. Daws 1887, p. 107; articles 5347-5349, B. S. 1911. The state was interested in seeing whether or not there was a vacancy. An -alleged vacancy other than sued for herein, was discovered by Twitehell, and Post bought the same from the state. We concur in the conclusion of law reached by the learned trial judge that the “corrected field notes so made, returned, and filed are binding and of full force and effect against all parties affected thereby, including the state.” The evidence shows that some 10,000,000 acres of land have been resurveyed under this act. Such is the imperfection of surveyors’ compasses, chains, and chain carriers that perhaps not a single one of these resurveys is mathematically correct, and the same would be true if they were again resurveyed. If for that reason they are subject to future correction, there will be no end of litigation with reference to these lands. The purpose of this act was to establish the lines and corners of these lands; this' was intrusted to surveyors selected by the state; and, in the absence of fraud, the state should be bound by their action in the premises.

' The Attorney General contends that, if the action of the state surveyor is to be construed as final, the act of 1887 is unconstitutional, as applied to the facts of this ease, for the reason that, in approving the survey made by the state surveyor, the commissioner of the land office gave to appellee public school land, and that the Legislature had no authority to give away these lands, or to authorize any one else to do so. True, but the Legislature was authorized to ascertain what lands were and what were not school lands. To this end the Legislature was authorized to have surveys made, and to make such surveys- conclusive, where intervening rights of third parties were not involved. Suppose the state had brought suit against the owner of a tract of land to establish the boundaries of such tract, as it has in this case, and the boundaries of such survey had been established by the judgment of a court of last resort so as to include within its boundaries land which was in fact school land. The owner of such survey would have become the owner of the school land erroneously adjudged to be included within its boundaries, not because the court had the right to give away school land, but because it had the power to adjudge that it was not school land. And so in this case appellee must be held to be the owner of the land in controversy, not because the surveyor and the' commissioner had the right to give him school land, but because the Legislature adopted this method of determining whether or not it was school land; and, in the method pointed out by law, it has been determined that the land in controversy is not school land. The method adopted by the Legislature of having the lands resurveyed under the supervision of the commissioner of .the general land office, by.a bonded and sworn surveyor, selected by him, was a reasonable method, for, had these matters been adjudicated in the courts, the location of boundary lines would have necessarily depended upon a resurvey of the lands. We think that it.was the in-' tention of the act of Í887 to make the re surveys made in accordance witJi said act binding upon the state, and that said act is constitutional.

Finding no error in' the record, the judgment of the trial court is affirmed.

Affirmed.