Smith v. McGaughey
| Decision Date | 31 May 1894 |
| Citation | 26 S.W. 1073 |
| Parties | SMITH v. McGAUGHEY, Commissioner. |
| Court | Texas Supreme Court |
D. W. Doom, for petitioner. C. A. Culberson, Atty. Gen., and Frank Andrews, Asst. Atty. Gen., for respondent.
This is a petition for a writ of mandamus to compel the defendant, as the commissioner of the general land office, to issue patents to the petitioner to two surveys of land in Newton county. It appears from the allegations in the petition that the plaintiff, being the owner of a certain land certificate issued in pursuance of the act of April 9, 1881, granting certificates for land to persons permanently disabled in the service of the state or of the Confederate States, in September, 1883, filed the same upon two tracts of the unappropriated public domain lying in Newton county, and caused the lands to be surveyed, and the field notes, together with the certificate, to be returned to the general land office. One of these surveys was for 1,254 acres of land and the other for 1,280. They were not contiguous to each other, but each embraced all the vacant land in the respective tracts. The tract first mentioned was located for the petitioner, and the second for the benefit of the school fund. The lands were not patented under these locations. Such was the state of the case when the decision of this court in Von Rosenberg v. Cuellar, 80 Tex. 249, 16 S. W. 58, was announced. In that case it was held that the act under which the certificate in question was issued did not authorize the holder of such certificate to select his own land, and locate it in one part of the state, and to locate the like quantity for the school fund in a different locality. Subsequent to that ruling, the petitioner caused each of the two tracts to be subdivided into two surveys, equal in quantity, and returned the new field notes to the general land office. The two new surveys on the tract of 1,254 acres were numbered 1 and 2, and the two on the other 3 and 4, respectively. Surveys 1 and 3 purported to have been located for petitioner, and 2 and 4 for the state. The field notes of surveys Nos. 3 and 4 are alleged to have been passed upon at the land office, and found correct; and it is also alleged that the field notes of Nos. 1 and 2 were also found correct, except as to conflict with an older pre-emption survey, which had been abandoned, as shown by an affidavit on file in the general land office.
It may be conceded, for the purposes of this opinion, that the petitioner was not entitled to locate the entire certificate upon two disconnected tracts, and to designate which should be for his own benefit. It does not follow that he would not have the right to cause each parcel to be resurveyed into two equal tracts in order to comply with the intent of the statute. Whether he had this right or not depends, as we think, upon the question whether the original locations were void, or merely erroneous. Since there was not vacant land enough in either locality to admit of the location of the entire certificate in two surveys adjacent to each other, he was entitled to locate the certificate in part upon the one tract and in part upon the other; in other words, he had the right, by virtue of the certificate, to appropriate for the purposes declared in the act under which it was granted all the land in the two surveys. Should the fact that he has mistaken his right, and has claimed and designated one survey for himself and the other for the state, invalidate the location? We think not. Let us illustrate. It has been decided that the owner of an undivided half of a certificate for land may locate one-half thereof for his own benefit, and that he becomes the owner in severalty of the land so located. But let us suppose that two persons acquire title to a certificate under a contract that one should locate it for the benefit of both, and that he whose right and duty it is to select the land and make the location should file upon two tracts equal in...
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Koy v. Schneider
...is clearly erroneous. Hancock v. McKinney, 7 Tex. 384; Johnston v. Smith, 21 Tex. 722; Dean v. State, 54 Tex. 315; Smith v. McGaughey, 87 Tex. 61, 26 S. W. 1073; Railway v. State, 95 Tex. 507, 68 S. W. 777; McGee v. Corbin, 96 Tex. 35, 70 S. W. 79; Tolleson v. Rogan, 96 Tex. 424, 73 S. W. 5......
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...because under all the decisions such was a matter of which the state alone, if disposed, might have taken advantage. Smith v. McGaughey, 87 Tex. 61, 26 S. W. 1073; Barrow v. Gridley, 25 Tex. Civ. App. 13, 59 S. W. 602, 913; Bunnell v. Sugg (Tex. Civ. App.) 135 S. W. 701, in which this court......
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Kimberly v. Morris
...329; Arberry v. Beavers, 6 Tex. 457; Sansom v. Mercer, 68 Tex. 488, 5 S. W. 62; Brown v. Ruse, 69 Tex. 589, 7 S. W. 489; Smith v. McGaughey, 87 Tex. 51, 26 S. W. 1073. We therefore answer the second question in the ...
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Eyl v. State
...did not render them void. This was an irregularity of which the state alone, if disposed, might have taken advantage. Smith v. McGaughey, 87 Tex. 61, 26 S. W. 1073; Barrow v. Gridley, 25 Tex. Civ. App. 13, 59 S. W. 602, 913. It appears from the record that the duplicate certificates located......