Horton v. Pace
| Decision Date | 01 January 1852 |
| Citation | 9 Tex. 81 |
| Parties | HORTON v. PACE AND ANOTHER. |
| Court | Texas Supreme Court |
An entry made 19th February, 1838, on the back of a headright certificate as follows: was sufficiently certain to designate what land was intended to be appropriated.
On the 19th of February, 1838, there was no law that we are aware of that required the surveyor to keep a book in which to enter applications for land; whatever obligation the instructions of the Commissioner of the General Land Office may have imposed on the surveyor, his neglect of them did not impair the right of the locator.
The instructions of the commissioner did not pretend that the validity of a survey or entry should depend in any degree on its being entered in the surveyor's book, nor do we think that he had any authority so to declare. It was only intended as a convenient regulation for the surveyor's office. It was to the map that the law more directly pointed for a prima facie designation of appropriated and unappropriated lands.
The 21st section of the land law of 1837, (Hart. Dig., art. 1857,) which requires that all surveys for individuals on navigable streams shall front one-half of the square on the water course and the line running at right angles with the general course of the stream, is directory, and probably would not injuriously affect a survey which did not strictly pursue its directions.
We do not question the right of a surveyor to adopt a previous survey which he thinks correct; but we cannot admit that it was the duty of the court do oblige him to adopt one shown to be incorrect.
The court will not issue a mandamus to compel an officer to do an act in violation of a directory statute.
Where the facts do not clearly show that there is a necessity for a survey the court will not issue a mandamus to compel the surveyor to make it.
Appeal from Travis. After the decision of the case of Horton v. Brown, (2 Tex. R., 78,) awarding a mandamus to issue to the Commissioner of the General Land Office to issue to said Horton a patent for the league of land in controversy in that suit, Horton applied to the district surveyor Pace to have the land surveyed; and the surveyor having refused to survey the land, Horton obtained a rule against the surveyor to show cause why a peremptory mandamus should not be issued to compel a survey of the land. To this the surveyor returned that he had previously surveyed the land for one Joseph Rowe, there being at the time of Rowe's application nothing in the records of his office to show that a prior location had been made by the said Horton. M. C. Hamilton, who held under Rowe, was made a party. It appeared that Horton's entry or location had been indorsed on his headright certificate as follows: that no other record of the entry was made; that the commissioner having refused to patent because of the previous grant to Brown, Horton took his certificate out of the surveyor's office, for the purpose of suing Brown to vacate the land and to obtain a mandamus against the commissioner; that in the meantime, while the certificate was out of the office as aforesaid, Rowe applied for a survey of the land upon a certificate admitted to be genuine, which survey was made as aforesaid; that previous to Rowe's application the name of the appellant was entered in the diagram of league No. 1 on the county map; that at the time of Horton's application, in 1838, the land back of the league was vacant, and that the league No. 1 had more than half its front on the Guadaloupe, which at that place has an average width of more than thirty feet.
The facts were agreed to by the parties, and the court dismissed the rule.
Special court composed of WHEELER, Justice, and ASA M. LEWIS and JAMES WILLIE, Special Judges.
J. Webb and T. H. Duval, for appellant.
A. J. Hamilton and J. Hancock, for appellee.
We are satisfied that the location or entry of the plaintiff in 1838 was sufficiently certain to designate what land was intended to be appropriated.
At the time of the location there was no law that we are aware of...
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In re Reece
...cases.”). 138. “[M]andamus cannot issue to compel a public officer to do an act which is not clearly prescribed by law.” Horton v. Pace, 9 Tex. 81, 84 (Tex.1852) (citations omitted) (emphasis omitted). FN139. See Kidder v. Hall, 113 Tex. 49, 251 S.W. 497, 498 (1923) (citing to various statu......
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