Kimmell v. Wheeler

• Decision Date: 01 January 1858
• Citation: 22 Tex. 77
• Parties: SUSAN KIMMELL, ADM'X, v. JOHN Q. WHEELER AND ANOTHER.
• Court: Texas Supreme Court

22 Tex. 77

SUSAN KIMMELL, ADM'X,

v.JOHN Q. WHEELER AND ANOTHER.

Supreme Court of Texas.

1858.

A location or file, made on the 1st of May, 1856, by virtue of a genuine certificate issued to a colonist in Peters' colony, upon land reserved from location by the act of the 21st of December, 1853, “to provide for the construction of the Mississippi and Pacific railroad,” is illegal and void. 25 Tex. 408;28 Tex. 429, 452.

The party holding such certificate, and seeking to locate it within the said reservation, at that time (May 1st, 1856), was not protected by the 19th section of the act of December 21st, 1853.

The provisions of the said act of December 21st, 1853, reserving a part of Peters' colony from location, by virtue of such certificates, were constitutional, and did not violate any contract between the state and the holder of the certificates.

The holder of such a certificate had no vested right in any part of the public domain. His was a “kind of floating equity,” which entitled him to appropriate vacant land, if he could find it, which it would be idle to seek to maintain against an individual grant from the state, much more against its reservation of the land for purposes of state policy. 24 Tex. 164;26 Tex. 244.

The land outside of the reserve, as the record showed, was ample to satisfy the claim; if the claimant's right of election was narrowed by the reservation, so was that of every holder of an unlocated certificate.

The reservation of territory, created by the act of the 10th of February, 1852, for the benefit of the plaintiff, and others having like claims, expired on the 10th of August, 1854; after that time, he had no priority of right over any other person entitled to appropriate vacant public land.

It is not, therefore, necessary, in this case, to decide whether the reservation of the land for colony purposes, by the act of the 10th of February, 1852, gave the holders of colony certificates a right, until that reservation expired, to select their land in that part of the colony within the railroad reserve.

If they had the right, until after the 10th of August, 1854, the plaintiff failed to exercise his privilege, until the period had elapsed.

APPEAL from Ellis. Tried below before the Hon. Ed. H. Vontress. Suit by appellant, as administratrix of Philip Kimmell, deceased, against John Q. Wheeler, and Thomas J. Oliver, district surveyor of Robertson land district; to try title, as against said Wheeler; and for a mandamus against said Oliver, to compel him to survey two hundred and fifty acres of land, situate in said county of Ellis, in said Robertson land district, within the limits of Peters' colony.

The plaintiff based her title upon a location, made on the 28th day of May, 1856, by her intestate, in the office of the district-surveyor of said Robertson land district, of a certificate issued by the county court of Colin county, for 320 acres of land, to James B. Littlepage, as a colonist in said Peters' colony, and legally transferred to Philip Kimmell, appellant's intestate.

Upon the trial, James E. Patton, a witness for appellees, testified, “that he had been a practical surveyor in the colony known as Peters' colony, and has resided therein from 1846 to the present time; that he is tolerably well acquainted with the limits of Peters' colony, as recognized by the surveyors; that he was out in a surveying expedition, in the north and west portions of said colony territory, in A. D. 1856, locating vacant lands; that from his knowledge of the county, and from examination of the maps, he considers that, in 1856, there was more vacant lands in the limits of said colony, outside of said railroad reserve, than within it; that more of the territory of what is known as Peters' colony, is outside of said reserve, than is within it; and that, in 1856, there was enough vacant land to satisfy the holders of Peters' colony certificates, outside of said reserve, in his opinion.”

On cross-examination, the witness said, “That a good deal of the vacant land, in 1856, in said colony, outside of said reserve, probably the greater portion of it, was poor and worthless; that he does not know the amount of colony certificates outstanding and not located.” This was all of the testimony in the record, showing the amount of vacant land outside of the railroad reservation.

A. Bradshaw, for appellant. We contend for appellant, that there is error in the charge of the court, in the verdict of the jury, and in the judgment of the court, in this cause, and that the same should be reversed, for the following reasons:

We hold that the contract entered into between the president of the republic, and Peters and others, for the purpose of colonizing what is known as “Peters' colony,” was a tripartite contract; that the contractors, Peters and others, agreed to promote emigration within a given time, and to a specified amount, etc. That the republic agreed to give to Peters and others, and to the colonists, lands, etc., proportioned to the number of families so introduced into the colony. That the colonist so emigrating and settling within the colony, was entitled to lands as matter of right, 640 or 320 acres, depending upon his having family or not. A contract is an agreement for good or valuable consideration, entered into between two or more parties, able and willing to contract; and the contract here alluded to, we submit, is not only good and binding, but indivisible.

By the terms of this tripartite contract, the republic agreed to set apart a particular section of the state, to be used exclusively for colonial purposes; and agreed to give Peters & Co. ten sections of land for the introduction and settlement of each one hundred families, as colonists. The republic also agreed to give 640 or 320 acres of land, to each head of a family, or single man, as the case might be, emigrating to, and settling in the colony, as colonists. The colony was set apart and defined by metes and bounds, the contractors were given until July, 1848, to introduce the number of families, that they were bound to introduce under the contract. The facts show, that at the expiration of the time, they had failed. Now the contract being indivisible, they cannot sue the state, and recover pro tanto on the contract; but it will hardly be contended, that this failure on the part of the contractors could deprive the colonists of their rights to land, they having complied with their part of the contract, by emigration, settlement, etc. He, the colonist, is certainly entitled to his land, and cannot be deprived of that right, by any failure on the part of either of the other parties to the contract, and the legislature has no power, either to take away or impair that right.

This right of the colonist, derived from his contract, applies to the whole colony grant, and he has the privilege of location, at his option, on any part of the vacant land within the colony limits. See ordinance, Hart. Dig. 85; Hart. Dig. arts. 2016, 2103, 2231, 2232, 2233. It is said in the case of Grammar School v. Burt, 11 Vt. 632, that “a legislative grant, to a corporation aggregate, vests an absolute title, without words of perpetuity, and the same cannot be afterwards controlled by the legislature, any more than an absolute grant to individuals.” Again, in the case of Woodruff v. The State, 3 Pike, 285, it is said that “contracts may be made by and with the state, as well as individuals, and a state may contract with its own citizens. Rights once vested, privileges once granted or sanctioned by the laws of the state, if within the constitutional limits, may be forfeited, but cannot be arbitrarily divested or withdrawn by future legislation.” See Herrick v. Randolph, 13 Vt. 525;Bank of Natchez v. The State, 6 Smedes & Marsh. 599;6 Cranch, 137;9 Cranch, 152;2 Hayw. 310, 374;4 Wheat. 641, 651;8 Wheat, 1; 4 Gill & Johns. 1.

The state having made the grant and given it bounds, and said to the colonists Come, and you shall have land, as you may choose in the colony; can the legislature afterwards limit this privilege, or reserve any portion of the land within the limits from the colonists? Would not this be a breach of the franchise? If the legislature can reserve any, why not all?

There is a difference between the holder of a head right certificate against the state, and a colonist, or the holder of a colonial certificate. The colonist has a certain district of country particularly defined, in which to make his location, and out of which he cannot go. He has his right there by special contract. The holder of a head right certificate holds under a general contract, and has no particular right to any specified district until location. Not so with the colonist; his certificate is prima facie evidence of his having complied with the law, and he is entitled to locate anywhere in the colony, under a special contract; and his right cannot be abridged. Hence the railroad reservation, if it was intended to tie up land from colonists, was a violation of the constitution. The most the legislature could do, would be to pass laws giving the colonists a reasonable time to locate and designate their lands, after which it might revert to the state, and become a part of the public domain: that would only affect their remedy. That never having been done, they have preference rights over all others not colonists.

In the case of The State v. Delesdenier, 7 Tex. 76, the court said, that the holders of the Bryan scrip had no preference over any other scrip; that the holders of it had no claim to any particular portion of the public lands, but a general lien upon all the lands, etc.; that the contract was only a quasi contract between the government and the holder of the scrip; that the latter might select such portion of the public land as was unappropriated, and subject to location, when the same was made. In this case it is not a quasi, but a special contract, giving the...