Woods v. Durrett

28 Tex. 429

• Court: Texas Supreme Court
• Decided: December 15, 1866
• Status: Published

Opinion

Moore, C. J.

—This suit was brought by John H. Durrett, the appellee, to recover one hundred and sixty acres of land situated in Tarrant county, to which he claims, in his original petition, to be entitled under a survey made on the 8th day of Kovember, 1856, by virtue of a certificate issued by the county court of Tarrant county to R. H. Burnett, as a settler in Peters’ colony.

By the act to provide for the construction of the Mississippi and Pacific railroad, passed December 21, 1853, all the vacant arid unappropriated public lands lying between the parallels of latitude 31° and 33° north, east of the 103° of longitude west from Greenwich, were reserved by the State for the purpose indicated and provided for in said act, and remained thus reserved until the passage of the act of 26th of August, 1856, to authorize the location, sale, and settlement of said reserve. (Paschal’s Dig., Art. 5038, Note 1107.)

It does not appear from the statement of facts that there was any direct evidence before the court showing that the land embraced in this survey is situated in this reserve; but this is evidently a fact of which the court has judicial knowledge. It may be said that the law making this reservation was enacted for the benefit of a private corporation, and hence it is not a statute of which the court can take judicial notice. We think it may well be doubted whether any part of this law can properly be regarded as a private act, which does not come within judicial notice. Certainly portions of it, and especially that portion making the said reservation, legislates upon subjects of general interest, and affects the rights of the people of the State at large, and must therefore be held to he public and general legislation in this particular, as much so as if no private object were embraced in the law. (9 Bacon’s Abridg., 230, 231, and 261.) But, if this were not the case, the subsequent reference to the reservation in public laws would require the courts to take judicial notice of it.

It has been suggested, however, that, although the courts can take cognizance of the fact that such a reservation has been made by the State, they cannot know that any particular tract of land is situate within it. This as a general proposition is correct. But the reservation east of the 103° of longitude west from Greenwich (and the court must certainly know that Tarrant county is east of this line) embraces a territory of one hundred and thirty statute miles in breadth. The boundary line of the reservation on the north is defined by the law of the 26th of August, 1856, to run with the southern boundary of the county of Den-ton, which is the northern boundary of the county of Tarrant, and as the county of Tarrant is declared in the law creating it to be but thirty miles square, all lands situate in it must certainly be included in the reserve.

The survey upon which the appellee brings his suit was made at a time when the land in controversy could not thus be appropriated by him, (Kimmell v. Wheeler, 22 Tex., 86; Sherwood v. Fleming, 25 Tex. Supp., 408,) and there was consequently no cause of action presented in his original petition authorizing a judgment in his favor; but this defect was cured by'the amendment setting up title to the land by patent from the State, issued to him after the commencement of his suit. This amendment unquestionably presented a different title and cause of action from that relied upon in the original petition, and, if excepted to on this ground, should have been permitted only upon the payment of the cost which had accrued prior to its being filed, unless the appellee had by further amendment connected his patent with an existing right of action at the commencement of the suit imperfectly presented in his original petition.

But the appellant neither excepted to the amendment nor asked that the costs previously incurred should be imposed upon appellee as a condition precedent to its being received. He evidently, therefore, cannot complain for the first time in this court that judgment was rendered against him for the entire cost in the case.

Although the survey upon which appellee counted in his original petition was void, his patent is evidence of title, and the judgment of the court below in his favor cannot be questioned, unless the appellant has shown an older and superior equitable right to the land. To determine this, we must examine his title. Appellant claims the land under a settlement and improvement made upon it, as he alleges, about the 7th of December, 1853, by D. E. Norton, as a pre-emption; and to support his claim he introduced in evidence a pre-emption certificate issued by G. Nance, clerk of the county court of Tarrant county, on the 8th of February, 1858, to L. D. Conwell, assignee of said Norton, in which it is certified, that said Norton and his assignee, Conwell, had resided upon and cultivated a tract of land re-surveyed for said Conwell as a pre-emption claim on the 15th of February, 1858, for the space of three years prior to the 21st day of December, 1856, and had fully complied with the provisions of the law granting land to settlers upon the public domain; the affidavit of Norton that he settled on the land and claimed three hundred and twenty acres as a pre-emption on the 7th of December, 1853; the re-survey referred to in the certificate of the county clerk of the 8th of February, 1858, which re-survey purports to have been made by virtue of the said certificate and subsequent thereto, on the 15th day of February, 1858, for three hundred and twenty acres of land; a deed from Conwell to the appellant for the tract of land he claimed as a settler, containing three hundred and twenty acres, dated January 30th, 1858. The appellant also offered in evidence a survey of a pre-emption claim made for said Conwell for one hundred and sixty acres of land, on the 2d of April, 1855, by virtue of his affidavit made on the day of said survey. The statement of facts shows, as a part of appellant’s testimony, that it was admitted by appellee that said survey of one hundred and sixty acres, and the re-survey of three .hundred and twenty acres/embraced the land sued for by appellee. The appellant also introduced evidence tending to show the settlement and occupation of the land by the parties under whom he claimed.

The act of February 7, 1853, supplementary to the preemption law of 1845, limited the privilege of acquiring title by pre-emption settlement to such persons as were settlers upon the public land at the passage of this law. And from the passage of this act until that of the 13th of February, 1854, entitled “An act to donate to actual settlers on vacant land one hundred and sixty acres of land,” there was no privilege nor protection extended to settlers on public land, if indeed there was any authority for such settlement. The only portion of this law which is claimed to have any bearing on appellant’s claim for a pre-emption of three hundred and twenty acres of land is the 7th section, which is in the following words, to wit:

“ Seo. 7. The provisions of this act shall not be so construed as to grant a pre-emption to any land which by law is now reserved from location or entry: Provided, That all those who have settled upon the public domain since the 7th day of February, 1853, and previous to the passage of this act, shall be permitted to perfect their titles to three hundred and twenty acres of land according to the provision of an act supplemental to an act granting to settlers on public domain pre-emption privileges.” Approved February 7, 1853.

It might perhaps admit of serious question whether this section of the act does not relate to a different subject from that exjn’essed in its caption, and if it be not consequently unconstitutional and void. Be this .as it may, it certainly gives no support to the appellant’s claim. For the privilege extended by it to settlers on the public domain prior to the passage of the law was expressly limited to settlers upon land not reserved at the passage of the law from entry or location. The land, as we have seen, was in the Mississippi and Pacific railroad reservation, and positively reserved from either location or entry. The plaintiff’s patent also "establishes the fact, that it was within the limits of Peters’ colony, and on this account it was not,when this law was enacted, subject to appropriation by pre-emption.

The latter of these objections to the right of the parties, under whom the appellant claims to have obtained a title for the land, by virtue of the alleged settlement in 1853, was obviated by the act for the relief of pre-emption claimants, passed August 15, 1856. But this law does not remove the other objection to appellant’s claim, that the land, at the date of the law of February 13,1854, upon which alone he can rely, was in the Mississippi and Pacific railroad reservation.

It is true, the proviso in the 3d section of the act of the 15th of August, 1856, might seem to imply, that settlers within the railroad reservation, prior to the 21st of December, 1853, were not excluded from perfecting their preemption claims. But it cannot be held, from the prohibition of the statute to extend privileges to one class, that another not mentioned in it and to whom the enacting clauses of the law have no application, is thereby relieved from disabilities within which both were previously embraced. It would go much beyond any just construction to hold, that this proviso conferred upon settlers in the reserve, prior to the 21st of December, 1853, the right to perfect titles to pre-emption claims, notwithstanding they were previously expressly prohibited from doing so, because it is said this cannot be done by those who have settled subsequent to that time, much less to say that they may acquire not merely the amount of land to which others are entitled who settled at the time such privilege is conferred, but that they shall get double that quantity by reason of their settlement at a time when positively forbidden, and when expressly excluded from this privilege on account of such settlement.

The'next laws relating to this subject are the act of the 26th of August, 1856, repealing the act of February 13, 1854, and the act passed on the same day, entitled “An act to authorize the location, sale, and settlement of the Mississippi and Pacific railroad reserve,” by the 2d section of which persons settled upon any portion of said reserve at the date of said law'were authorized, in preference to all others, to purchase not more than one hundred and sixty acres of land, at the price of fifty cents per acre. If there were any doubt as to the proper construction of the act of August 15, to which we have just adverted, it would be removed by these laws, which were passed at the same session of the legislature, and with direct reference to the disposal of the public domain within the reservation.

From this repeal of the law of February 13, 1854, with the exception of the limited time within which parties relieved by the law of August 15, 1856, were authorized to have their surveys made and their field-notes returned, there was no law in force under which pre-emptions could be claimed until the passage of the act of February 10, 1858. It may be also remarked, if the appellant’s assignees were relieved by the act of August 15,1856, as they failed to avail themselves of it within the time their right to do so was limited by the terms of the law, and as its provisions have not been "revived, it cannot now be invoked to sustain his title.

From what we have said in regard to the facts, and from the summary of the laws which we have given, it is obvious that neither the appellant nor his assignors had a valid, subsisting, equitable pre-emption title or claim to the land previously to the act of February 10, 1858, against a patentee who had made a valid location subsequent to the 1st of March, 1857, when the Mississippi and Pacific railroad reservation was by law open to location, and prior to the passage of said act of February 10, 1858.-

Appellant, however, insists that, although his rights were dormant at the date of this law, they were revived by it, and the pre-emption certificate and re-survey under which he claims give him an equitable title to the land superior to the patent of appellee. This law was intended and unquestionably does revive the rights of all persons who were previously entitled to lands under the pre-emption laws of the 22d January, 184.5, the 7th of February, 1853, and the 13th of February, 1854, and also of those who were entitled as actual settlers in the Mississippi and Pacific railroad reservation, upon complying with the terms prescribed in said law. The certificate which appellant claims, though it recites the survey made on the 15th of February, 1858, purports to have been made on the 8th of February, 1858, and if this is its true date it was made two days before the passage of this act, and at a time when, as we have seen, there was no law in force authorizing preemption settlements, or for perfecting titles upon those previously made. At its date the clerk had no authority to hear the proof or give the certificate, and it could consequently furnish no authority for the survey if a certificate were necessary to authorize this.

But without further comment upon the apparent defects in the certificate and the survey, it is quite obvious that appellant’s vendor was not entitled to a survey of three hundred and twenty acres of land if the settlement in virtue of which he claims was made prior to the passage of the law making the reservation, though the certificate itself places it upon that very day. The laws of 1845 and 1853 are not relied upon, because the settlement was made after their passage. The 7th section of the act of 1854 does not come to his aid, because it applied only to settlements on lands subject to location at the passage of the law. If he were entitled to a pre-emption claim at all, it was for only one hundred and sixty acres, and, as it has been held by the court in the case of Fowler v. Allred, 24 Tex., 184, where the settlement was made in 1853, in Peters’ colony, but not in the reserve. But whether appellant or his vendor was entitled to a pre-emption of one hundred and sixty acres of land, or as in our opinion was really the case, he was entitled to that quantity of land under the 2d section of the law of August 26, authorizing the location, sale, and settlement of the Mississippi and Pacific railroad reservation, as there was an entire failure to perfect such right or title' as directed and required by the law conferring it, it could not, if it had been asserted, have been enforced against the plaintiff’s patent.

It does not appear from the bill of exceptions or state-ment of facts that any evidence went to the jury to impeach the pre-emption certificate under which appellant claimed. The ruling of the court, therefore, that this could he done, must be regarded merely as an abstract legal opinion, which did not and could in no way affect the result of the case, and consequently -we are not called upon to review it.

There is no error in the judgment, and it is

Aeeirmed.