Clark v. Another

• Decision Date: 01 January 1854
• Citation: 12 Tex. 395
• Parties: CLARK v. GOSS AND ANOTHER.
• Court: Texas Supreme Court

12 Tex. 395

CLARK

v.GOSS AND ANOTHER.

Supreme Court of Texas.

1854.

Where the organization of a new county is provided for by law, the acts of the officers of the old county throughout the territory designated for the new county, done after the passage of the law, and before the actual organization of the new county, are valid; and, prima facie, it is presumed in favor of the acts of the officers of the old county, that the former organization continues until the new organization is proved.

To invalidate a location and survey made by an officer of an old county, on the ground that the land lay within a new county erected out of the old at the time of the location and survey, it is not sufficient that the organization of the new county was at the time provided for by law, but it must be proved that the organization had actually been effected. (Note 67.)

See this case for circumstances under which it was held that the right of the claimant was not affected by the failure of the Surveyor to approve and record the field notes, &c., at the proper time.

Appeal from Harrison. Action of trespass to try title, by the appellees against the appellant. The Act of Congress of the Republic, which provided for the organization of Harrison county out of a portion of Shelby, was passed on the 25th of January, 1839. There was no proof when the county was organized, but it was proved that the Deputy Surveyors of Shelby county continued to make surveys in said district of country until some time in December, 1839, during which month the Surveyor for Harrison arrived, (being elected by Congress at that time,) although he did not qualify for several months afterwards. The survey under which the plaintiffs claimed was made by a Deputy Surveyor of Shelby county within said district of country, on the first of December, 1839, and was returned to and deposited in the office of the Surveyor of Shelby county, in January, 1840, and was there in a pigeon hole assigned to the work of the particular Deputy who made it, when the transcript of the field notes for the use of the new county of Harrison was made up, but was not transcribed, the Surveyor of Shelby, who made the transcript, and who was a witness in this case, could not tell wherefore, but supposed it was overlooked, nor was it approved by said surveyor of Shelby, who continued in office until 1843 or 1844, but was approved by his successor, without date. The field notes were afterwards transferred to Harrison county and properly recorded. The lines were plainly marked on the ground.

In the meantime, the party under whom the defendant claimed caused the land to be located and surveyed in 1841 by the surveyor of Harrison county, and in 1846 procured a patent.

Clough & Lane, for appellant.

Henderson & Jones, for appellee.

WHEELER, J.

The principal and essential inquiry in this case was as to the validity of the plaintiffs' title. If the plaintiffs by legal and competent evidence have shown the right in themselves, they were entitled to recover, and the judgment must be affirmed. Otherwise it must be reversed. The only question therefore which it is material to notice is the competency and sufficiency of the plaintiffs' evidence to establish in themselves a valid subsisting title.

There is no question that the plaintiffs' location and survey were prior in point of time to the defendant's, and if valid must give them the superior and better title. But it is contended that the survey was invalid, because made by a surveyor of Shelby county after the passage of the act establishing and providing for the organization of the new county of Harrison, which embraced within its limits that part of the old county of Shelby in which the land was situated. And in support of the objection we are referred by counsel for the appellant to the case of Linn v. Scott, (3 Tex. R., 67.) To this it is answered by counsel for the appellee that the new county of Harrison was not organized at the date of...