Bracken v. Wells
| Decision Date | 31 December 1848 |
| Citation | 3 Tex. 88 |
| Parties | WILLIAM BRACKEN v. JAMES A. WELLS et al. |
| Court | Texas Supreme Court |
Appeal from Gonzales County.
A court cannot issue a mandamus to compel a public officer to perform an act which is not clearly prescribed by law. [ Ante, 51.]
A mandamus ought not to be awarded when there is a substantial defect in the proof of the plaintiff's right, notwithstanding the officer may manifest a willingness to obey the mandate; and especially ought it not to be done when the interests of a third party are involved.
The printed book of certificates recommended by the board of investigating commissioners, if published by authority, may be evidence for some purposes, but does not furnish the proof on which a surveyor is required to act.
The statute does not direct that applications for mandamus shall be sustained by oath, but upon general principles they ought to be so verified. [4 Tex. 393;10 Tex. 375.]
This is an application for a mandamus to compel the surveyor of Gonzales county to survey for the appellee a certain tract of land which he designates in his petition, and which he alleges he selected and pointed out to said surveyor on the 15th of February, 1838, to be surveyed under and by virtue of a certificate issued to him on the 18th of January, 1838, by the board of land commissioners of Fayette county, and that the surveyor refuses to make the survey, assigning as his reason therefor that the land had been surveyed for one William Bracken. He alleges that the survey for Bracken was fraudulent and void, as being made upon land previously appropriated; prays that Bracken and the county surveyor, Swift, may both be made parties defendant; that the survey for Bracken be decreed to be null and void, and that a mandamus issue commanding the surveyor to survey the land for himself.
At the October term, 1841, Swift answered by saying “he is ready and willing to obey the mandamus in all its terms and conditions, for which he prays to be allowed time, and upon his compliance and return of the field notes, to be discharged and exonerated from the said cause with costs.” At the March term, 1844, Bracken appeared by counsel and excepted to the petition because it was not sworn to, and because the plaintiff had given no bond for damages and costs; and at the fall term, 1845, he filed an answer denying generally the allegations in the petition. The cause was tried at the same term. The exception was overruled; the jury found a verdict for the plaintiff, and a decree was thereupon entered, annulling the survey and field notes made for Bracken, and ordering a peremptory mandamus to issue to the surveyor, as prayed. There was a motion for a new trial, which being overruled, the defendant Bracken appealed.
From the statement of facts sent up in the transcript, it appears that the only evidence submitted to the jury was the original certificate granted by the board of land commissioners of Fayette county to the plantiff, and the certificate of the surveyor of his location and entry of the land in 1838. The plaintiff offered to read in evidence a printed copy of the report of the board of investigating commissioners, to show that his certificate had been recommended for patent; but this being objected to, it was ruled out by the court, and the plaintiff excepted.
NEILL and LEWIS for appellant.
J. W. ROBINSON and GILLESPIE for appellee.
In this case the judgment of the court below must be reversed. The statute prohibits surveys on certificates for headrights unless they are certified by the clerk of the county court where the certificates were issued or are proposed to be located, or by the commissioner of the general land office, as having been reported by the commissioners appointed to detect fraudulent land certificates, etc. And any survey made contrary to the intent and meaning of the act is declared to be null and void. [Laws of 1840, p. 161.]
A court cannot issue a mandamus to compel a public officer to perform an act which is not clearly prescribed by law, or to compel a surveyor to make a survey upon an evidence of claim, which is prohibited by the law from being received as proof for that purpose. It is true that in this case the county surveyor, in his return, states his willingness to obey the mandamus in all its terms and conditions, and prays for time for that purpose, and, upon his compliance, to be discharged and exonerated from costs, etc.
This was in 1841, more than three years after the entry was made, and seems extraordinary willingness to discharge a duty which has been neglected until resort was had to compulsory process. H...
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