Smith v. Turner

• Decision Date: 20 December 1928
• Docket Number: (No. 2176.)
• Citation: 13 S.W.2d 152
• Parties: SMITH et al. v. TURNER.
• Court: Texas Court of Appeals

13 S.W.2d 152

SMITH et al. v. TURNER.

(No. 2176.)

Court of Civil Appeals of Texas. El Paso.

December 20, 1928.

Rehearing Denied January 17, 1929.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Pecos County; C. R. Sutton, Judge.

Mandamus by Fred Turner, Jr., to compel A. N. Lea, County Surveyor, to make survey, in which Mrs. M. A. Smith and others were impleaded. Judgment for plaintiff, and impleaded party named and others appeal. Reversed and rendered.

Claude Pollard, Atty. Gen., Wright & Gibbs, of San Angelo, Turney, Burges, Culwell & Pollard, of El Paso, Rex G. Baker, of Houston, Harris, Harris & Sedberry, of San Angelo, W. L. Dean and Hiner & Pannill, all of Fort Worth, James Cornell and Glenn R. Lewis, both of San Angelo, Ike S. Handy, of Houston, Bland Proctor, of Fort Worth, A. M. Gee and J. C. Adams, both of Tulsa, Okl., Belcher & Montague, of Del Rio, Leon L. Mott and A. D. Dyess, both of Houston, R. R. Priest, of Rankin, Koerner, Fahey & Young, of St. Louis, Mo., and Lea, McGrady, Thomason & Edwards, of El Paso, for appellants.

Cantey, Hanger & McMahon, of Fort Worth, and Gossett & Collard, of Odessa (Mark McMahon and Gillis Johnson, both of Fort Worth, of counsel), for appellee.

Hill, Smith & Neill, of San Angelo, for I. G. Yates.

HIGGINS, J.

This suit was brought by appellee, Turner, in the district court of Pecos county, against A. N. Lea, county surveyor of said county. The action was brought under article 5323, R. S., for mandamus, to compel the surveyor to make a survey as required by said article of certain parcels of land, hereinafter particularly described, in Pecos county, alleged to be unsurveyed public free school land, which the petitioner desired to purchase. It was alleged that plaintiff previously had made written application of inquiry to the Commissioner of the General Land Office and the Commissioner refused to recognize the existence of a vacancy and give the name of an authorized surveyor to make the survey. All of the conditions precedent to the right to bring the suit are by the petition and evidence shown to have been met. The surveyor answered, averring a willingness to make the survey if ordered so to do, and impleaded numerous adverse claimants of the land in question. Among those so impleaded are Mrs. M. A. Smith and I. G. Yates. These last-named parties and those claiming under them will be hereinafter, respectively, referred to as the Smith interests and the Yates interests.

In response to a peremptory instruction given upon the close of the evidence, verdict was returned finding the land described in the petition to be "vacant, unsurveyed land belonging to the Public Free School Fund of the State of Texas." Thereupon judgment was rendered that all of the lands and areas described in the petition "are and the same are hereby adjudged to be vacant, unsurveyed public land belonging to the Public Free School Fund of the State of Texas, to wit: [Here follows description of the land,] and that such vacant public land above described is not included in or appropriated by either the Ira G. Yates Survey of Pecos County, Texas, or in any of the surveys in either Block 194, G. C. & S. F. Ry. Co. Surveys of Pecos County, Texas, or Block 178, T. C. R. R. Co. Surveys, Pecos County, Texas, or in any other survey; and that the said claimants and each of them impleaded herein are without any right, title, or interest in and to said area or any part thereof."

The judgment then proceeded to order the surveyor to forthwith make the survey and within 90 days do the other things required by the second section of the act, and the writ of mandamus against the surveyor was ordered issued as prayed for.

From this judgment the surveyor did not appeal. Some of the impleaded claimants did not appeal. Many of them, however, did appeal, giving cost bonds, including Mrs. Smith and various parties claiming under her.

Appellee moves to dismiss the appeal upon two grounds, viz.: First. Because the judgment is not appealable. Second. Because the questions presented by the action and determined by the judgment have become moot.

In support of the second ground, attention is called to the fact that appellants did not supersede the judgment appealed from, and by affidavit and attached exhibits it is satisfactorily shown to this court that since the rendition of the judgment the surveyor Lea had obeyed the judgment and mandatory writ issued against him, and the land in question had been applied for by appellee, awarded by the Commissioner of the General Land Office, and patented to him by patents issued by the Governor based upon the survey made and field notes returned by such surveyor.

Mrs. Smith and husband conceded the facts just stated to be true and that the questions at issue had been thereby rendered moot, but objected to the dismissal of the appeal. In their reply to the motion the Smiths show that since the appeal was perfected Turner has filed an action in trespass to try title to the land in question in which they had answered and filed cross-action. Certified copies of the petition, answer, and cross-action in the trespass to try title suit were attached to the reply. The Smiths objected to dismissal upon the ground that such action would leave the judgment of the lower court in effect and res judicata of the questions determined by the judgment; therefore the Smiths insist that the questions at issue had become moot, but to avoid the judgment from later operating as res judicata the same be vacated, and judgment here rendered dismissing the suit without prejudice, as was done in McWhorter v. Northcut, 94 Tex. 86, 58 S. W. 720.

The other appellants resist the motion of Turner as well as that of the Smiths and insist the appeal be considered and disposed of upon its merits.

Article 5323, R. S., authorizes actions such as here presented. It reads:

"Unsurveyed School Lands. — The rules governing the sale of unsurveyed school lands are:

"1. Application. — One desiring to purchase any portion of the unsurveyed land believed to belong to the school fund shall make a written application of inquiry to the Commissioner. The inquiry shall give the applicant's post-office address, state in effect that he desires to buy the land if it is for sale and sufficiently designate it. If it appears from the records of the Land Office that the area belongs to the public free school fund, or if there be doubt as to the existence of the area as public free school land, the applicant shall be advised and given the name and address of an authorized surveyor with whom he may contract for the survey of the land at the expense of the applicant. The applicant shall file an application with the surveyor accompanied by one dollar as a filing fee. The application shall be filed and recorded and sufficiently describe the land. The survey shall be made and returned to the Land Office within ninety days after the date of the Commissioner's advice as to an available authorized surveyor.

"2. Suit to require survey. — If the Commissioner declines to recognize the existence of the area as public school land and refuses to authorize a survey to be made, such person may file suit against the county surveyor in the district court of the county in which the land is located, or in the county to which such county may be attached for judicial purposes, to compel him to make the survey and thereupon the surveyor shall implead the claimant of the land and in such proceedings determine if the area be public land. In such proceedings the surveyor shall not be held for any cost incurred. If the final judgment of the court should decree the area or part thereof to be school land the surveyor shall make the survey, and the application, field notes and one dollar filing fee shall be filed in the Land Office within ninety days from the date of the final decree.

"3. Classification. — When the surveyor returns the field notes and a plat of the survey to the Land Office, together with one dollar filing fee to be paid by applicant, he shall report under oath the classification and reasonable market value of the land and also the timber thereon and its value, which may be considered in connection with such other evidence as may be required by the Commissioner in determining the price to be given for the land and timber. If upon inspection of the papers the Commissioner is satisfied from the report of the surveyor and the records of the Land Office that the land belongs to the public free school fund and the survey has been made according to law, he shall approve the same by classifying and valuing the land, and mail notice of such action to the applicant, giving the classification, price and terms.

"4. Terms of sale. — Any timber on such land shall be sold for cash at its reasonable market value. No award shall be issued for the land until the timber shall have been fully paid for. The applicant shall file in the Land Office his application for the purchase of the land together with one-fortieth of the appraised value fixed thereon within sixty days from the date of the notice of the classification and valuation, together with the applicant's obligation for the balance of the unpaid purchase price bearing interest at the rate of five per cent. per annum, and the obligation and other conditions of sale shall be the same as that for surveyed land. If such application should not be filed within the time prescribed herein, the Commissioner shall place the land on the market for sale upon the same terms as are herein provided for other surveyed school land. If upon the inspection of any application, field notes and records of the Land Office, there should appear to be a greater area belonging to the school fund than that included in the application and field notes, the Commissioner may, in his discretion, require the applicant to include the whole area in his field notes. If it appears that another than the applicant claims...