Kuechler v. Wright

• Decision Date: 01 January 1874
• Citation: 40 Tex. 600
• Parties: JACOB KUECHLER, COMMISSIONER GENERAL LAND OFFICE, v. GEO. W. WRIGHT.
• Court: Texas Supreme Court

40 Tex. 600

JACOB KUECHLER, COMMISSIONER GENERAL LAND OFFICE,

v.GEO. W. WRIGHT.

Supreme Court of Texas.

1874.

1. The alternate or even sections of land reserved for the use of the state by the act of February 4, 1856, incorporating the Memphis, El Paso and Pacific Railroad Company, when surveyed and delineated on the map of the district surveyor, ceased to be public land, and cannot again be regarded as a part of the public domain, so as to subject them to location.

2. Such alternate or even sections were, by section 3 of article 10 of the constitution of 1866, set apart as a part of the perpetual school fund of the state, and thus placed beyond the power of the legislature to divert them to any other purpose.

3. Section 6 of article 9 of the present state constitution also dedicates such alternate sections to school purposes, and no valid location of a land certificate could be made in pursuance of the act of August 12, 1870, upon such alternate or even sections after they had been designated and surveyed under the railroad laws of the state.

4. Section 5 of article 10 of the present state constitution cannot be construed to subject the “reserved sections” to location, but was intended to subject to location the “odd sections” within the reserve of such railroads as had not complied with the terms of their charters.

ON MOTION FOR REHEARING.

5. The application for rehearing refused.

6. The action of this court in overruling the application for rehearing is not influenced by any want of jurisdiction in the district court to grant the writ of mandamus to the commissioner of the general land office in a proper case.

7. A mandamus will lie to compel the commissioner of the general land office to perform a mere ministerial duty.

APPEAL from Travis. Tried below before the Hon. J. P. Richardson.

On the twenty-eighth of June, 1871, George W. Wright filed in the district court of Travis county his petition against Jacob Kuechler, commissioner of the general land office. He alleged that he was the owner of a valid land certificate (which he described) originally issued for twelve hundred and eighty acres of land, the certificate for the unlocated balance of which issued on the first of December, 1870, for six hundred and forty acres; that on the twentieth of September, 1870, he caused said certificate for unlocated balance to be filed and entered in the office of the surveyor of Lamar county, by the lawful surveyor thereof, upon fractional sections Nos. 32, 36 and 46, of the Memphis, El Paso and Pacific Railroad Reservation, which he alleged were then subject to location; that by virtue of the certificate, file and entry, on the _____ day of March, 1871, he caused said tracts of land to be surveyed by the surveyor of Lamar county, and on the twenty-ninth of March, 1871, caused said surveys to be duly recorded in the district surveyor's office in Lamar county; that on the fourteenth day of April, 1871, he caused the certificate, with the field notes of survey, to be returned to and filed in the general land office; that the certificate, field notes and survey were examined in the general land office and found genuine and correct, but that the commissioner (Kuechler) refused to issue patent, because said survey covered fractional sections Nos. 32, 36 and 46, within what was once and is still claimed as the Memphis, El Paso and Pacific Railroad Reservation, which was originally held up from location by any certificate.

Wright alleged in his petition that the reservation referred to, so far as state sections were concerned, was opened to location by the constitution of the state of 1869-1870, and by the act of August 12, 1870; that his surveys were upon land once embraced by state sections in said reserve. He prayed for a peremptory writ of mandamus against Kuechler to compel him to issue a patent on his certificate and survey, etc.

On the twenty-third of June, 1871, Kuechler acknowledged service of the petition, waived copy, etc., and in person by way of answer alleged that he had no objection to issuing a patent as desired, “except that the field notes cover fractional sections Nos. _____, in what is known as the ‘Memphis, El Paso and Pacific Railroad Reservation,’ which fractional sections were originally reserved from location by the law; and whether the law has been so changed as to permit such location is respectfully submitted to the court, under the management of the attorney general.” He further stated in his answer that “this case is submitted as a test case, in order to furnish a rule for this office.”

On the twenty-eighth of June, 1871, Kuechler, by his attorney (Alexander, the attorney general), demurred to Wright's petition--

“ First. Because it did not appear from the petition that the lands reserved were not severed from the mass of the public domain, and dedicated to such special public uses as the state of Texas might choose to make of them, and that they have not remained so severed and dedicated ever since, although the sections reserved for the railroad corporation mentioned in the petition have since been made by the constitution subject to location.

Second. Because the language of section 5 of article 10 of the constitution of the state clearly indicated that the public lands severed and dedicated as aforesaid for the benefit of the state, and not for the benefit of railways and railway companies, were not intended to be made subject to location.

Third. Because no statute has been, or can be, constitutionally enacted placing the alternate sections surveyed and reserved on the footing of vacant and undedicated public domain,” etc.

Certified copies of the certificate, location, survey, etc., were attached to and made a part of the petition. It was not denied that the railway company, in compliance with the requirements of a supplemental act, had surveyed, sectionized and numbered all the sections and fractional sections of vacant land within their reservation, from the eastern boundary of the state to the Brazos river, within four years after the first of March, 1856, and had deposited a correct map of the work in the general land office, and that fractional sections 32, 36 and 46 were included in the reservation.

The transcript contains no statement of facts.

On the fifth of July, 1871, the court below, a jury being waived, rendered a judgment directing the clerk to issue a peremptory mandamus to compel the issuance of patent by the commissioner of the general land office. From this judgment Kuechler appealed, and assigned for error:

“1. The court erred in overruling the demurrers filed in said cause by the defendants.

2. The court erred in the assignment of the reasons for overruling said demurrers.”

The 15th section of the act incorporating the Memphis, El Paso and Pacific Railroad Company, which exempted from location the vacant public land within eight miles on each side of the extension line of the road, from and after the time when the line should be designatnd by survey, as well as the 16th and 18th sections of the same act, which reserved the even sections to the state, are sufficiently set forth in the opinion of Evans, P. J.

The 5th section of the “Act to regulate the disposal of the public lands of the state of Texas,” approved August 12, 1870, is as follows:

“The holder of any genuine land certificate or other valid claim against the state of Texas shall hereafter have the right to locate the same upon any part of the public domain of the state not subject to the claim of actual occupants, as prescribed in the foregoing sections of this act, and in accordance with the laws now in force in reference to the locating, surveying and patenting of lands in this state; provided, that all such certificates shall be located, surveyed and returned to the general land office by the first day of January, 1875, or be forever barred.”

Section 3 of article 10 of the constitution of 1866 provides that “all the alternate sections of land reserved by the state, out of grants heretofore made to railroad companies or other corporations whatever, for internal improvements, or for the development of the wealth and resources of the state, shall be set apart as a part of the perpetual school fund of the state.”

Section 6 of article 9 of the present constitution, among other things, provides, “as a basis for the establishment and endowment of said public free schools, all the funds, lands and other property heretofore set apart and appropriated or that may hereafter be set apart and appropriated, for the support and maintenance of public schools, shall constitute the public school fund; * * * and no law shall ever be made appropriating such fund for any other purpose whatever.”

Article 10, section 5 of the constitution of 1870, provides that “all public lands heretofore reserved for the benefit of railroads or railway companies shall hereafter be subject to location and survey by any genuine land certificates.”Wm. Alexander, Attorney General, for appellant.

James C. Walker and Bonner & Bonner, for appellee.

EVANS, P. J.

This is a suit by mandamus to compel the commissioner of the general land office to issue patents to the appellee, George W. Wright, to fractional sections Nos. 32, 36 and 46, in what is known as the Memphis, El Paso and Pacific Reservation.

The act to incorporate the Memphis, El Paso and Pacific Railroad, passed February 4, 1856, provides, in section 15, that all the vacant public land within eight miles on each side of the extension line of said road shall be exempt from location or entry, from and after the time when such line shall be designated by survey, recognition, or otherwise; the lands hereby reserved “shall be surveyed by said company at their expense, and the alternate or even sections reserved for the use of the state; and it shall be the duty of said company to furnish the district surveyor of said district through which said road may run with a map of the...