Kimmarle v. Houston & T. C. Ry. Co.

• Decision Date: 20 December 1889
• Citation: 12 S.W. 698
• Parties: KIMMARLE <I>et al.</I> <I>v.</I> HOUSTON & T. C. RY. CO. <I>et al.</I>
• Court: Texas Supreme Court

12 S.W. 698

KIMMARLE et al.v.

HOUSTON & T. C. RY. CO. et al.

Supreme Court of Texas.

December 20, 1889.

Commissioners' decision. Appeal from district court, Tarrant county; R. E. BECKHAM, Judge.

Jas. C. Scott, for appellants. T. D. Cobbs and N. A. Stedman, for appellees.

ACKER, P. J.

The Houston & Texas Central Railway Company brought this suit against Kimmarle & Hirsh to recover possession of, and to remove clouds from the title to, 14 surveys of land, of 640 acres each, in Childress county, claimed by plaintiff under locations and surveys made in June, 1873, by virtue of certificates issued to the Waco & Northwestern Railway Company. Defendants claimed 11 of the surveys, under patents issued in 1876, on locations and surveys made in 1875, by virtue of certificates issued to Beatty, Seale, and Forward, and answered by pleading their title to the 11 surveys, and disclaimed as to the balance of the surveys sued for. Kimmarle & Hirsh impleaded their warrantors, A. F. Truitt and S. H. Truitt. Citations issued, and were returned served on A. F. Truitt, in Tarrant county, Tex., and on S. H. Truitt, in Troupe county, Ga., where he was alleged to reside. Neither of the Truitts appealed. The trial was without a jury, and resulted in judgment for plaintiff for the lands sued for, describing them by metes and bounds, and canceling the patents under which defendants claimed, "so far as any or all of said patents include any part of, all or either of, plaintiff's surveys, as above set out," and judgment by default in favor of Kimmarle & Hirsh, against A. F. and S. H. Truitt, for $10,000, with interest from judgment, and for all costs. Kimmarle & Hirsh assigned errors, and perfected their appeal. The Truitts also assigned errors, as against both the plaintiff and defendants.

We will consider first the assignments presented by appellants, the first of which is as follows: "The court erred in permitting the plaintiff to introduce in evidence certified copies of the field-notes from the general land-office, made for the Waco & Northwestern Railway Company, as evidence of a prior right or title to the lands in suit, so far as the same conflicts with the lands owned by defendants, for that the land owned by Kimmarle & Hirsh had been patented to Z. C. Collier, assignee, and defendants held under him by regular chain of title, and it devolved upon the plaintiff to show a prior appropriation of the same lands, by valid surveys theretofore made, upon valid land certificates, by a duly authorized surveyor; and the copies of the field-notes in evidence show that a part of the lands was surveyed by the deputy-surveyor of Montague land district, and that a part of the lands was surveyed by the deputy-surveyor of Jack land district; that such surveys for the Waco & Northwestern Railway Company were made in June, 1873, and all within what is now defined as Childress county, and no authority for either of said district surveyors to survey in that county, or section of country, was shown by plaintiff, and defendants deny that plaintiff acquired any right by reason of such surveys." This evidence was objected to upon the ground that "the surveys were not made by any duly authorized surveyor, authorized to make surveys of land at the date plaintiff's surveys were made." All of the 14 surveys sued for by plaintiff were located and surveyed by the surveyor of Jack land district, except one of them, (survey No. 581,) which, it appears, does not conflict with either of the 11 surveys claimed by defendants. The question, then, for our decision under this assignment is: Did the surveyor of Jack land district have authority to make the surveys under which plaintiff claimed? The surveys in controversy are situated in Childress county, which was created in 1876, out of territory which was originally included in Young county land district. The county of Young was created, and its boundaries defined, by acts of the legislature of February 2d, and August the 19th, 1856. The last-named act provides: "That for judicial purposes the territory north, from the north-east corner of said county, to Red river; thence west, with said stream, to the United States territory; thence south, to a point west from the southern source of the clear fork of the Brazos; thence east, to the source of such stream, and down the same to the main Brazos; and thence, in a direct line, to the south-east corner of said county; thence north, to the place of beginning, — shall be under the jurisdiction of said county; and when said county is created into a land district it shall embrace the above-described territory." Acts Sp. Sess. 1856, p. 41. The record does not disclose the date of the organization of Young county; but it must have been prior to the 12th day of February, 1858, as two acts of the legislature of that date refer to the Young county land district as then existing, (Gen. Laws 1858, pp. 190, 191;) and, under the provisions of the act of March 20, 1848, (Gen. Laws, 153; Sayles' Early Laws, art. 1878,) and the act of January 26, 1858, (Gen. Laws, 66, and Sayles' Early Laws, art. 2690,) each organized county became a separate land district. So that when Young county organized its county government, by virtue of the foregoing statutes, it became a separate land district, and its county surveyor became the district surveyor of Young county land district, which embraced the vast territory included in the boundaries defined by the act of August 19, 1856, supra. By virtue of this last-mentioned act, the county of Young, during the continuance of the organization of its county government, had dominion and jurisdiction, for judicial and surveying purposes, over the entire territory of Young county land district. Young county became disorganized in 1861 or 1862; and there seems to have been no provision made by the legislature for the exercise of jurisdiction, for either judicial or surveying purposes, over the territory, or the territory of Young county land district, until 1866, when the two acts of November the 6th were passed. One of these acts provided that all counties that had been legally organized, and had lost their county organizations, for judicial and registration purposes should be "attached to the organized county whose county-seat is nearest the county-seat of such disorganized county." Sayles' Early Laws, art. 3303. It seems that under this statute the county of Young would have been attached to Jack county for the purposes named in the act. The other act of 1866 attached Young county to the county of Jack "for judicial and other purposes." Sayles' Early Laws, art. 3308. Under these statutes, Young county remained attached to the county of Jack until April, 1874. The territory of the Young land district, as defined by the act of 1856, supra, included Hardeman and other unorganized counties, as well as territory not included in the boundaries of any created county, and, unless this territory not included in the created counties, in which the surveys in controversy are situated, was placed by the acts of 1866, with Young county, under the jurisdiction of Jack county, for surveying purposes, then the surveyor of Jack district had no authority to make the surveys under which the plaintiff claimed the lands; and from the time of the disorganization of Young county, in 1861 or 1862, until its reorganization, such territory was not subject to the jurisdiction of any county for judicial, surveying, or any other purpose. We cannot believe the legislature intended to leave any part of the territory of the state without government, and not subject to the jurisdiction of the established machinery of government. At the time of its disorganization, the county of Young had jurisdiction of this territory for judicial and surveying purposes; and we think this jurisdiction was transferred to Jack county by the act of 1866, which attached Young county to the county of Jack for judicial and other purposes. By that act, Jack county succeeded to all the jurisdiction and powers which attached or were incident to the county government of Young county at the time of its...