State v. Walden

• Citation: 325 S.W.2d 705
• Decision Date: 07 May 1959
• Docket Number: No. 6289,6289
• Parties: STATE of Texas, Appellant, v. Smith WALDEN, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 705

325 S.W.2d 705

STATE of Texas, Appellant, v. Smith WALDEN, Appellee.

No. 6289.

Court of Civil Appeals of Texas, Beaumont.

May 7, 1959.

Rehearing Denied May 22, 1959.

Supplemental Motion for Rehearing Overruled June 17, 1959.

Will Wilson, Atty. Gen., John Milton Richardson, Asst. Atty. Gen., for appellant.

Parker & Parker, Beaumont, for appellee Walden.

A. M. Huffman, Beaumont, for appellee Hammons.

McNEILL, Justice.

The State of Texas, under the provisions of Acts 28th Leg., Regular Session 1903, ch. 98, p. 129, brought suit against Smith (Smyth) Walden, Texas and New Orleans Railroad Company of Texas, Clara Hammons, and Humble Oil and Refining Company to forfeit and to remove cloud from title on a tract of land situated in Tyler County, Texas (T. & N. O. R. R. Co. No. 7, Block No. 1), and acquired by the Texas and New Orleans Railway Company under the provisions of 'an act to encourage the construction of railroads in Texas by donations of lands', Acts 5th Leg., 1854, ch. 15, p. 11; 3 Gammel 1455, and 'an Act to amend the third section thereof', Acts 8th Leg., 1860, ch. 55, p. 70, and by Acts 13th Leg., Regular Session 1873, ch. 103, p. 180.

Defendants Texas and New Orleans Railroad Company and Humble Oil and Refining Company answered and disclaimed any interest in the land in controversy and were dismissed from suit.

Smith Walden filed an answer and cross action for the land. Clara Hammons answered by not guilty and general denial.

The cause was tried before the District Court of Tyler County without a jury and judgment was entered by the court denying the relief sought by the State of Texas, and granting recovery to Smith (Smyth) Walden for so much of T. & N. O. R. R. Co. Survey No. 7, Block 1 as is not in conflict with senior surveys in the area and recovery by Walden of entire survey as against his co-defendants and the State. The State appeals.

The facts are undisputed. On June 23, 1860, Land Scrip Certificate No. 439 was issued to Texas and New Orleans R. R. Co., by virtue of the general laws of the 5th Leg., 1854, ch. 15, p. 11; 3 Gammel 1455, providing for grants of land to railroad companies completing certain railroad construction in the state. The land was surveyed in Polk County thereunder, but the survey was abandoned because it was in conflict with prior patented surveys. The original certificate or scrip was returned to the General Land Office and filed December 1, 1874. By virtue of Acts of the 13th Leg., regular session, 1873, ch. 103, p. 180, on March 29, 1878 the Land Commissioner issued a certified copy of the original land certificate No. 439 known as a 'floated' certificate in lieu of the original. By virtue of the 'floated' certificate the land involved in this suit was surveyed on September 16, 1878, and the floated certificate and field notes were filed in the General Land Office on October 31, 1878. Corrected field notes, together with a map of the survey, were certified to and recorded by the County Surveyor of Tyler County on May 6, 1891, and were filed in the General Land Office on May 16, 1891. This was the last material official act regarding this located certificate until 1937. January 25, 1916, for a cash consideration of $500.00 the T. & N. O. R. R. Company conveyed to W. A. Barnes all its right, title and interest in and to the land involved and Certificate 439. Appellee Smith (Smyth) Walden acquired Barnes' interest thereto by a regular chain of title. On October 4, 1937, the Land Commissioner executed a timber lease to P. E. Hammons to the merchantable timber on the tract. In the year 1943 Bascom Giles, Land Commissioner of the State, executed a deed, dated June 1, 1943, conveying the timber on the land to Warren Lumber Company. No patent to the tract involved has ever been issued by the Land Commissioner.

The State attacks the judgment rendered through two points. The first urges that the trial court erred in not forfeiting T. & N. O. R. R. Co. Survey No. 7, Block 1, to the State and removing cloud from the title thereto as provided for and required under Acts of the 28th Regular Session of the Leg., 1903, ch. 98, p. 129; and the second, urges that the trial court erred in adjudging that appellee Smith (Smyth) Walden is entitled to have a patent issued by the State as to said section or survey that is not in conflict with any senior survey or surveys, if any.

Appellee counters these two points with the following points: First, T. & N. O. R. R. Co., was under no duty to alienate its interest in the section prior to January 25, 1916, the date that it did so, because the Act of 1903 or at least the second section thereof is void. Second, that if the Act of 1903 is not void, still it does not give appellant an action to forfeit the land in controversy. Third, the forfeiture provisions of the Act of 1903 have been repealed. Fourth, the trial court erred in excluding from evidence the legislative history of the Act of 1903 as shown by the House and Senate Journals, R.S. 28th Leg. of 1903. And fifth, that the trial court erred in excluding from evidence the legislative history of the Act of 1903, as shown by the legislative file of Senate Bill 201 of said session of the Legislature.

We will not undertake to discuss the points or counterpoints separately. Basically, two Acts of the Legislature bear heavily upon the questions in this case. The first is the Act of 1854 described in the opening paragraph hereof. To encourage the construction of railroads the legislature provided in Sec. 1 of this Act that for every mile of railroad constructed and put in running order the State would grant 16 sections of land; Sec. 6 provided that the Land Commissioner should issue land certificates of 640 acres each, equal to 16 sections per mile for roads so completed, which when located and surveyed by a district surveyor and the certificates, field notes and maps of the surveyor were returned to the General Land Office it was the duty of the Commissioner to issue to the railroad company patents for each odd section of said surveys. Section 9 provided that the railroad company should alienate all such land not needed for railroad operations obtained, in various periods not exceeding 12 years from the time of 'acquiring' such lands or real estate. Section 10 of the Act provided that upon failure of the company to alienate any such lands within the time provided it became the duty of the Comptroller of Public Accounts to advertise such lands for sale, sell same and deposit the net proceeds with the State Treasurer to the credit of the company. The construction of this Act will be commented upon hereinafter.

The other basic Act involved is the Act of 1903. This is described as Senate Bill No. 201, Acts, 28th Leg., R.S. ch. 98, p. 129, and is entitled: 'An Act to quiet titles to lands, located and surveyed by virtue of valid alternate land certificates, originally granted by the State of Texas, to railway companies, and to other corporations engaged in the work of internal improvements.'

Sections 1 and 2 of this Act read:

'Section 1. Be it enacted by the Legislature of the State of Texas: That the failure of any railway company or other original grantee of any valid alternate land certificate, to alienate their lands or any portions thereof, granted to them, within the periods specified in the laws under which said lands were granted, or by any other law of the State of Texas, shall not be deemed a sufficient cause for forfeiting such lands, or any part thereof, by the State of Texas; provided, it shall appear that such lands have in fact, 'by a bona fide sale been already alienated to actual purchasers; and provided further, that all lands now held by such original grantee shall be sold to actual bona fide purchasers within the period of seven years, otherwise such lands as are not so alienated shall revert to and become the property of the State of Texas;' provided further, that all lands affected by this Act, shall be alienated in tracts not to exceed four sections to any one person or persons, and that no person, persons, or corporations shall make more than one purchase of said lands.

'Sec. 2. That any railway company which has in any manner whatsoever acquired title to or interest in any land in this State, not required in the construction, operation or repair of its railway, or for yards, stations or other facilities, shall alienate the same in good faith within seven years after the passage of this act, otherwise the same shall be forfeited to the State at the suit of the Attorney General.'

Since the title to the land at issue was once owned by the T. & N. O. R. R. Co., it is proper to give some of its legislative history.

In 1859 the Legislature passed an Act entitled, 'An Act amendatory of and supplemental to an Act entitled an act to incorporate the Sabine and Galveston Bay Railroad and Lumber Company, passed September 1st, 1856.' Sp.L. 8th Leg., 1859, ch. 10, p. 9; 5 Gammel 49-51. This Act changed the name of said company to the Texas and New Orleans Railroad Company, and this company by instrument filed February 21, 1900 with the Secretary of State accepted and was bound by the provisions of our present Constitution, Vernon's Ann.St. (See Sec. 8, Art. 10, providing for the necessity of such acceptance) applicable to or bearing upon the present controversy.

By the Act of 11th Leg., 1866, ch. 174, p. 212; 5 Gammel 1130, railroad companies were given 21 years additional time in which to alienate lands acquired by virtue of land certificates.

The State contends that by having had Sec. 7, Block 1 located, surveyed and the field notes thereof filed in the General Land Office, although no patent was issued therefor, that the T. & N. O. R. R. Company thereby 'acquired' an interest in and imperfect title to said survey and having failed to alienate the tract within seven years from the effective date of the 1903 Act, the right of the State to forfeit the the...