Post v. State

• Court: Texas Supreme Court
• Writing for the Court: Phillips
• Citation: Post v. State, 171 S.W. 707, 106 Tex. 500 (Tex. 1914)
• Decision Date: 16 December 1914
• Docket Number: (No. 2725.)
• Parties: POST v. STATE.

171 S.W. 707

POST v. STATE.

(No. 2725.)

Supreme Court of Texas.

December 16, 1914.

Action by C. W. Post against the State of Texas. There was a judgment of the Supreme Court (169 S. W. 407) rendered in

response to questions certified by the Court of Civil Appeals, and plaintiff petitions for writ of error. Judgments of the district court and the Court of Civil Appeals (169 S. W. 401) reversed, and cause remanded.

Gregory, Batts & Brooks, of Austin, for plaintiff in error. B. F. Looney, Atty. Gen., and G. B. Smedley, Asst. Atty. Gen., for the State.

PHILLIPS, J.

The suit was a controversy between the state and the plaintiff in error, Post, over certain lands held by the latter, claimed by the state to be vacant and sought by it to be recovered. The trial resulted in a judgment in Post's favor. On the appeal the honorable Court of Civil Appeals affirmed this judgment on the original hearing; but on motion for rehearing reversed it, and rendered judgment for the state for all of the land. 169 S. W. 401. With the state contending that the land was not included in the several surveys owned by Post as determined by their original field notes, a principal question in the case was whether a resurvey of Post's lands by the state surveyor under the act of 1887 (articles 5347, 5348, and 5349, R. S. 1911) which, according to its corrected field notes, placed the land in dispute within the lines of the original patents, was binding upon the state. After the Court of Civil Appeals' decision on rehearing, it certified that question to this court, to which answer was made that the resurvey was not effectual to give Post any land which the original surveys did not, according to their field notes, include. 169 S. W. 407. The case is now here on Post's petition for writ of error, to which the state has filed an answer.

Adhering to our ruling on the certified question, the Court of Civil Appeals correctly decided that the resurvey was not binding upon the state; but it was without authority to render the judgment.

While the trial court rested its judgment upon a holding that the state was concluded by the resurvey, it found, as a fact, that a part of the land in suit — not defining the amount — is embraced within the original field notes of the surveys. If it is, the state is not entitled to recover that part of the land. The Court of Civil Appeals found differently from the trial court upon this question, and upon such finding rendered the judgment.

The...