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

• Decision Date: 29 April 1896
• Citation: 36 S.W. 111
• Parties: GALVESTON, H. & S. A. RY. CO. v. STATE ex rel. CULBERSON, Attorney General.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

Page 111

36 S.W. 111

GALVESTON, H. & S. A. RY. CO. v. STATE ex rel. CULBERSON, Attorney General.¹

Court of Civil Appeals of Texas.

April 29, 1896.

Appeal from district court, Brewster county; Walter Gillis, Judge.

Action of trespass to try title on relation of C. A. Culberson, attorney general, against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

T. D. Cobbs and J. P. Blair, for appellant. C. A. Culberson and R. L. Batts, for appellee.

Conclusions of Fact.

FLY, J.

It is agreed that the defendant company received from the state and located the certificates described in plaintiff's petition, and that said petition contained a true statement of the number of certificates issued, the number of each certificate, the number of acres, the date when certificates were issued, the counties in which located, the section of road for which said certificates issued, as well as the number of miles of main track and sidings in each section, and whether the same has been patented, and the date of the patents. It is further agreed that the defendant railway company began the construction of the first section of its road—that part of its road for which certificates in this suit were issued—at the point of junction with the old line of the Buffalo Bayou, Brazos & Colorado Railroad, at a distance of 493 feet west of the west approach to the bridge over the Colorado river, and ending at the west end of west approach over the West Navidad river, subsequent to July 27, 1870, and completed the same December 19, 1873; that the second section of defendant company's road, from the "western side of the western approach to the bridge over the West Navidad river, and ending at the center of a red sandstone culvert, the first one east of Buck's branch," was constructed and completed between July 27, 1870, and June 25, 1874; that the third section of defendant company's road, from a "red sandstone culvert, the first one east of Buck's branch, and ending at the turntable at Luling, was constructed and completed between July 27, 1870, and January 16, 1875; that the fourth section of defendant company's road, between "the station house at Luling and ending at the west ending of the siding at Kingsbury," was constructed and completed between July 27, 1870, and July 12, 1875; that the fifth section of defendant company's road, between "the east pier of the Guadalupe bridge, thence eastward, ending at a point opposite the depot door at Kingsbury, or the west end of the siding where the last inspection terminated," was constructed and completed between July 27, 1870, and October 27, 1876; that that portion of the road of defendant company between the Colorado river and San Antonio was completed to San Antonio February 13, 1877; that said railroad was thereafter constructed and put in running order, and operated from said beginning, at the bridge over the Guadalupe river, to El Paso, in El Paso county, being a distance of ____ miles. It is further agreed that the charters and special laws relating to defendant's company and relating to grants of laws to railroad companies may be used on the trial in evidence and considered, without the necessity of incorporating the same in the statement of facts; as well as all special laws incorporating railroads, and other laws, general and special, granting lands and land certificates for works of national improvements. Any other pertinent fact may be introduced by either party on trial.

There are now remaining and belonging to the state of Texas ____ acres of public domain, reserved since 1879 from location by certificates. Defendant paid taxes on the lands sued for continuously since they were located up to the present time, which were received by the state of Texas, and by it used as other taxes are used by the state. Defendant paid all fees for locating and surveying the said lands sued for, as well as the same number of alternate sections known as the "even-numbered" for the public freeschool fund, and has paid all surveying fees and all fees to the commissioner of the general land office in respect thereto, and all sums of money necessary for its protection and in the way of betterments for the preservation of the same, etc. The said certificates for land described in plaintiff's petition were issued to it after the said railway company had completed and after the governor had appointed an engineer to examine the same and report, which engineer did examine the same, and report to the governor the condition of said road, and thereupon the governor approved the report, and thereupon the land commissioner issued certificates to said railway company, signed by the commissioners of the general land office, calling for main line and sidings, not separating the sidings from the main line. At the time the act of January 30, 1854, became a law E. M. Pease was governor of the state of Texas. It was by his approval as such governor that the bill passed the legislature and became a law. The first certificates that were issued under the act of January 30, 1854, were authorized and directed to be made by the said E. M. Pease, whose term of office had not then expired. These certificates were issued upon a report made by Tipton Walker, engineer, appointed by Gov. Pease in pursuance of the provisions of said act, which report bears date of March 24, 1856, and is now on file in the proper department of the state in the capitol at Austin. In this report said Tipton Walker specially states that the railway company to whom said certificates were issued had completed of its main line a certain number of miles, and also states the length of sidings that had been constructed. Upon receiving this report the said E. M. Pease, as governor, as aforesaid, in a letter addressed to Hon. Stephen Crosby, commissioner of the general land office, under date of March 31, 1856, advised said Crosby, as such commissioner, that the president of the railway company making application for said certificates had notified him (the governor) that said railway company had completed and put in running order a section of 25 miles and more of its road; that, there being no state engineer, he had appointed, under the act of January 30, 1854, Tipton Walker, engineer, to examine said section of road; and that he then inclosed a copy of said report under oath, with the affidavit accompanying the same, from the said engineer; that said engineer reported that said section, containing (with the necessary turnouts) 32.12 miles, is constructed in accordance with the provisions of its charter and the general laws of the state in force regulating railroads. The various engineers appointed by the different governors to inspect railways as the same were constructed, in their respective reports of inspection to the respective governors, stated the number of miles and feet of main track, the number of miles or feet of bridges, culverts, and trestles, the number of depots, cars, engines, weight of iron, and width and character of track and grade. The action of the respective governors (except Gov. Roberts) in said reports were usually in the following words, "Reports examined and approved," upon which reports and action of the respective governors the commissioner of the general land office issued to the respective companies the certificates for main track and sidings. During the administration of Gov. Roberts the reports of the engineers were in substance and form of those made to other governors, but he approved for only the number of miles of main track stated in the reports. In one instance during the administration of Gov. Davis he approved one report for sidings exclusively, for which certificates were issued in the usual amount per mile. This was also done in one instance by Gov. Hubbard, for which certificates issued. On March 13, 1877, Gov. Hubbard made the following indorsement on one of the reports: "This report of Inspector Gray examined, and approved for thirty miles of main track and sidings, as being made, graded, and in all respects complying with the law." In many cases patents were issued on said certificates for both main line and turnouts, and in some cases did not separate the quantity of land for main line from the quantity of land for sidings.

The said railway company had expended large sums of money, as aforesaid, in the work of surveying such lands, locating and correcting the same; also in preserving said railway company, and enabling it to perform the duties incumbent upon it as a common carrier; and has paid large sums of money, by way of taxes, to the state of Texas. Said lands have been surveyed in all respects as the law requires lands to be surveyed for railway companies, by virtue of the donations of grants of land, into tracts of 640 acres, where the same could be done, surveying an equal amount for the benefit of the school fund, the field notes of which were recorded, and are now in the proper surveyor's office. That maps, plats, and sketches thereof were duly made, which, with the field notes and certificates, have been duly returned to the general land office of the state of Texas within the time required by law, and have remained on file in the land office ever since. That the same were duly platted upon the maps of the general land office of the state of Texas, and suitably marked as the lands of the railway company. The maps of the same are in use of the land office of the state of Texas now. The odd sections are recognized as said railway company's lands, and maps thereof have been furnished to the county surveyors in all the counties where the said lands are situated, and are now in their possession and control, showing said lands platted thereon, which are recognized by the state of Texas, through its officers, as the lands granted to said defendant railway company. The following commissioners have issued land certificates for sidings as well...