New York & T. Land Co. v. Thomson

• Decision Date: 14 December 1891
• Citation: 17 S.W. 920
• Parties: NEW YORK & T. LAND CO., Limited, <I>et al.</I> v. THOMSON.
• Court: Texas Supreme Court

17 S.W. 920

NEW YORK & T. LAND CO., Limited, et al. v. THOMSON.

Supreme Court of Texas.

December 14, 1891.

Commissioners' decision. Section B. Appeal from district court, Travis county; W. M. KEY, Judge.

Action by R. M. Thomson against the New York & Texas Land Company, Limited, and others. Judgment for plaintiff. Defendant company appeals. Affirmed.

The other facts fully appear in the following statement by GARRETT, P. J.:

This controversy arose over the file and location by the appellee, R. M. Thomson, of certain land certificates owned by him upon land which the appellant, the New York & Texas Land Company, Limited, claimed to have already appropriated by valid file location and survey. The suit was originally brought in the district court of Kinney county by R. M. Thomson, appellee, against W. M. Locke, as district surveyor of Bexar land district, and the appellant, the New York & Texas Land Company, Limited. The original petition was filed March 1, 1884. Plaintiff, Thomson, prayed for a mandamus to compel the defendant Locke, as district surveyor as aforesaid, to survey certain lands situated on Devil's river, in what was then Crockett county, which were claimed by the appellant, the New York & Texas Land Company, Limited, and which had been filed upon by the appellee, Thomson. The case was tried in the district court of Kinney county upon a plea to the jurisdiction by Locke, and demurrers by the appellant herein. The court below sustained both the plea to the jurisdiction and the demurrers, and Thomson brought the case to this court by appeal. This court reversed the judgment of the court below, and remanded the case for trial. See Thomson v. Locke, 66 Tex. 383, 1 S. W. Rep. 112. During the pendency of the suit the legislature created the county of Val Verde, and the land in controversy was included within its boundaries. The venue of the case was, by agreement, changed, first, to Val Verde county, and thence, by agreement, transferred to Travis county. Val Verde county completed its organization as a separate land district on the 21st of August, 1887. On December 4, 1888, the appellee, Thomson, filed in the district court of Travis county his first amended original petition, wherein he made John K. Pierce party defendant as the county surveyor of Val Verde county, and prayed for a mandamus against him to compel the survey. Plaintiff, Thomson, also asked for judgment against Locke for $4,000 damages for refusing to make the surveys, and for judgment against the appellant herein, "divesting the title out of said company to said land, and investing the same in plaintiff." Plaintiff alleged that in March, 1883, he had filed upon the land in controversy by virtue of genuine and valid land certificates, and that the same was at the date of said file vacant and unappropriated public domain of the state of Texas. Plaintiff further alleged that the defendant the New York & Texas Land Company, Limited, asserted some sort of pretended claim to a large part of the lands which he claimed. The land in controversy was located by Thomson, under the claim that appellant's certificates covering the same land were forfeited under article 14, § 2, of the constitution of Texas. On June 4, 1888, the appellant filed its first amended original answer, denying that the land in question was at the date of plaintiff's files vacant and unappropriated public domain, and alleging that the same was the property of the said defendant company, and setting out in full the facts and circumstances out of which the title of the said company grew, and denying that the said title was barred by the statute of limitations. On December 17, 1888, the appellant filed its first supplemental answer, by way of replication, to plaintiff's first amended original petition, filed December 4, 1888, and specially demurred to portions of the same, pleaded the general issue, and also that the land certificates under which plaintiff claimed were barred by the statute of limitations, because they were not surveyed and returned to the general land-office within five years from the date of their issuance. Under the plaintiff's amended petition, Locke was only retained as defendant for the purpose of defending the suit against him for damages, to which he answered, and no judgment was rendered against him. Defendant Pierce, surveyor of Val Verde county, answered, waiving all questions of jurisdiction, pleading general denial. The case was tried in district court of Travis county without a jury on December 22, 1888, and resulted in a judgment for the plaintiff, Thomson, against the New York & Texas Land Company, Limited, for the land in question, canceling appellant's title thereto, and ordering that the defendant John K. Pierce, surveyor of Val Verde county, survey the land in question for the plaintiff, Thomson, within 90 days from the adjournment of the court. Judgment was also rendered against the defendants for costs. From this judgment the New York & Texas Land Company, Limited, alone appealed.

The facts as found by the trial court are as follows: In May, 1875, the state of Texas issued to the International & Great Northern Railroad Company a large number of land certificates. In 1876 and 1877 the appellant, admitted to be the owner of the certificates, caused the certificates in question in this case to be located and surveyed on land situated on and near Devil's river, Crockett county, Tex., (then a part of Bexar land district.) The surveys were made by Jacob Kuechler, deputy-surveyor of Bexar land district, who was sent out by the owner of the certificates to locate and survey them on land on Devil's river. He made the surveys, and returned the field-notes thereof, together with the certificates, and a sketch or map, showing the location of the surveys, to the general land-office. The certificates and fieldnotes, and the map accompanying the same, were all returned to the general land-office as early as August 17, 1877. It was Kuechler's intention, and the instructions of the owner of the certificates to him were, to place the surveys on Devil's river, which he intended to do, and supposed he had done so. But, as a matter of fact, he made no actual survey on the ground, and from certain corners which he fixed plotted in the surveys, and made calls in the field-notes for Devil's river of such of them as he supposed crossed that river. His surveys included several blocks. He actually established on the ground the north-east corner of survey No. 84, block 1, and the south-west corner of survey No. 26, block C, about 11 miles distant up the river; and, finding the county between these points difficult to survey, he projected and plotted in the intermediate surveys from these points, supposing that he had placed them upon Devil's river. He was mistaken as to the true course of the river. It made a considerable bend from the point from near the place where he established the south-west corner of survey No. 26, block C, and ran two or three miles to the east of where he supposed it was, when it deflected, and again ran south. He mistook a dry canyon for Devil's river, and placed the surveys so as to about fit the canyon, and was otherwise mistaken as to the course of the river. These surveys remained in the general land-office without any action being taken thereon until 1880. In the mean time the commissioner of the general land-office had received information which satisfied him that Devil's river was, under the law, a navigable stream. He therefore held that the Kuechler surveys, having been made in a square form and crossing the river, were illegal, as located across a navigable stream, and could not be patented. Up to this time it was taken for granted that the surveys lay upon Devil's river. Upon this ruling being made by the commissioner, the appellant, through its agents, applied to the commissioner for permission to file corrected field-notes, so as to make the surveys conform to the ruling. This the commissioner refused to permit, and ruled that the only mode in which the correction would be permitted would be by the issuance of certified copies of the certificates for relocation. Appellant accepted the certified copies, and proceeded to have them resurveyed. George W. Angle, who represented the appellant in the matter supposed that the copies took new life, and would be good for five years longer, and so understood the opinion of the commissioner to be. After the copies had been issued, and at about the time of the resurvey, Kuechler's mistake in the original locations was discovered, and it was ascertained, by the calls for course and distance of the original locations, Devil's river would not be reached by a considerable distance. These copies of the certificates, which had been floated for the purpose of having them resurveyed, so as to front only half the...