Galveston, H. & S. A. Ry. Co. v. State

• Decision Date: 27 June 1891
• Citation: 17 S.W. 67
• Court: Texas Supreme Court
• Parties: GALVESTON, H. & S. A. RY. CO. v. STATE.

17 S.W. 67

GALVESTON, H. & S. A. RY. CO. v. STATE.

Supreme Court of Texas.

June 27, 1891.

Appeal from district court, Val Verde county; WINCHESTER KELSO, Judge.

Action by the state against the Galveston, Harrisburg & San Antonio Railway Company to recover lands granted to the company by the state. Trial to the court, judgment for the state, and defendant appeals. Reversed.

E. P. Hill, for appellant. Chas. A. Culberson, Atty. Gen., for the State.

GAINES, J.

This suit was brought by the state of Texas, through its attorney general, to recover of the appellant corporation 60 sections of land which had been located and surveyed for it by virtue of 60 alternate certificates issued July 12, 1877, to the company by the commissioner of the general land office. The grounds of action, as alleged in the original petition, are as follows: "(1) That said certificates were claimed to be issued and located, as shown upon their faces, in accordance with the provisions of an act `to encourage construction of railroads in Texas by donations of land,' approved January 30, 1854, and acts amendatory thereof; all of which said laws had expired by their own terms and limitations, and were repealed by other acts of the legislature, and by the constitution of 1869, before the road for which said certificates were issued was constructed. (2) That the company, in procuring said certificates, represented, and on said representation obtained them for and on the ground, that said company had completed, at the date of their issuance, a section of thirty-six miles and 1,474 feet of main track from the Guadalupe bridge to San Antonio, and two miles and 2,000 feet of sidings and switches at other points on its line, making a total of thirty-eight miles and 3,474 feet of railroad. That on this representation and statement, which were untrue, the certificates were issued. That there were not then, in fact, nor have there ever been, thirty-six miles and 1,474 feet of main track between said Guadalupe bridge and San Antonio; but that the distance between those points has always been, and is now, along the main track of said railroad, only thirty miles and 1,205 feet, which said company then and has always known. That for the said distance of thirty miles and 1,205 feet of main track the defendant company falsely, fraudulently, and unlawfully obtained, received, and appropriated to its use sixteen land certificates of 640 acres each to the mile for thirty-six miles and 1,474 feet of alleged main track, as shown upon the face of said certificates; and in that way unlawfully and fraudulently received sixteen sections of 640 acres of land each to the mile for six miles and 269 feet more from the state than the actual mileage of said road between the said Guadalupe bridge and San Antonio. (3) That the two miles and 2,000 feet of sidings and switches called for in, and shown on the face of, said certificates belonged to and were a part of other sections of defendant's road at the following points, to-wit: At Flatonia, 1,200 feet; at Quarry track, near Flatonia, 6,600 feet; at Eagle Lake, 500 feet; at New Philadelphia, 1,400 feet; at Pierce Junction cattle track, 1,460 feet, — making a total of siding and switches of 12,560 feet, or two miles and 2,000 feet. That, of the thirty-six miles and 1,474 feet mentioned and represented on the face of the certificates as main track, six miles and 269 feet of the same were in truth and in fact not main track, but sidings and switches at points between the Guadalupe bridge and San Antonio. That the certificates hereinbefore mentioned and described were in fact issued for eight miles and 2,269 feet of switches and side tracks, for the construction of which the said company was not entitled to aid from the state in any amount or quantity of land, either under general or special laws. (4) That said railroad was constructed and completed westward from Guadalupe bridge to San Antonio, as aforesaid, between the 17th day of November, 1876, and February 13, 1877; and the said two miles and 2,000 feet of sidings and switches mentioned in said certificates were built by said company between April 1, 1870, and April 18, 1876, and were the side tracks, switches, parts, parcels, and appurtenances of and belonging to other portions and sections of defendant's railroad, at the points hereinbefore named, lying eastward of said Guadalupe bridge; for the construction of which said company had, at other and previous times, unlawfully obtained, received, and appropriated from the state sixteen sections of land to the mile thereof. (5) That six miles and 269 feet of sidings and switches called for and contained within, not shown upon the face of, the aforesaid certificates, but for which they were to that extent issued, and also the two miles and 2,000 feet of siding and switches shown upon the face of said certificates, and for which they were issued, were at the time of the issuance of said certificates, and at all other times prior to and since said dates, necessary appurtenances to, and adjuncts and parts of, the defendant's railway, and were essential to the use and operation of said railway. That said railway at no time was or could have been complete and in good running order without said sidings and switches. That without them said road was not substantially built or fully equipped for the transportation of passengers or freight, or either; nor would said road, without them, have been constructed in accordance with its charter, or the general laws in force in this state regulating railroads. (6) That it cannot be ascertained from the face of said certificates, or from the location and survey of said lands, or by any other means, which of these certificates were issued, located, or surveyed exclusively on account of the main track of said railroad." The prayer of the petition was for a recovery of the lands and a cancellation of the certificates. The defendant company in a special answer denied that in procuring the certificates it had misrepresented the number of miles of main track and the number of miles of side track for which they were issued, and alleged that they were issued upon a correct report made by the engineer of the state, and approved by the governor, and that by a clerical error which was made in the land-office an erroneous recital as to the respective numbers were inserted in the face of the certificates. The answer contained other averments, which it is not necessary to notice. A supplemental petition was filed on behalf of the state, which contained these allegations: "State says the defendant was never entitled to receive the lands in controversy, or any other lands, in aid of constructing its railway west of Guadalupe bridge, for the reason that by the terms of its charter, passed July 27, 1870, and the amendment passed March 10, 1875, (mentioned in plaintiff's petition,) which were referred to and made a part hereof, it was required and undertook to complete its said railroad to San Antonio on or before January 28, 1876, conditioned that in the event of its failure to do so it should forfeit all the corporate rights, powers, and privileges therein conferred. That it failed to so construct or complete its said road to said place within said time on or before January 28, 1876, and therefore it ipso facto, by the terms of its said charter contract, which the state here specially interposes, pleads and demands to be enforced, lost and forfeited all its rights, and all privileges, immunities, and grants of land, if any it ever had, held, or was entitled to, by virtue thereof." Under the rules of practice prescribed by this court, these averments would properly have been made as amendments to the original petition; but they were not excepted to on that ground, and the objection is deemed to have been waived.

The case was tried before the judge without a jury, upon an agreement, as to the principal facts, which is as follows: "(1) That defendant received from the state 619 land-scrip certificates, for 640 acres each, all of which is located on public domain, each of said certificates being in form and substance as `Exhibit A,' hereto attached. (2) That the defendant's main line of track from Guadalupe bridge west to San Antonio, mentioned in each of said certificates, is thirty miles and 1,205 feet, and the sidings and switches between same points is six miles and 269 feet, as will more fully appear by `Exhibit B,' attached hereto. (3) That the two miles and 2,000 feet of sidings and switches mentioned in each of said certificates were east of Guadalupe bridge, as more fully appears by `Exhibit C,' hereto attached; and that prior to the issuance of said certificates the defendant or its predecessor received sixteen sections of land, of 640 acres each, for the main track, to which said sidings and switches belonged, east of said Guadalupe bridge. (4) That the lands described in plaintiff's petition were located, and are now held without patents by the defendant by virtue of said certificates, according to the number and description set forth in said petition. (5) Correspondence between Governor Hubbard and Attorney-General Boone, hereto attached, marked `Exhibit D,' may be introduced subject to objections as to its legal effect. (6) The charters and special laws relating to defendant company may be used on the trial in evidence. (7) Any other pertinent fact may be introduced in evidence by either party on the trial. (8) That there now remain belonging to the state four million and a half acres of the public domain, reserved since 1879 from locations by certificates, and was at the time of the completion of said road to Del Rio. (9) That defendant paid taxes on the lands sued for continuously since they were located up to the present time. (10) That defendant paid all fees for surveying and locating said lands sued for, as well as the same number of alternate sections known as `even numbers,' for...