Von Rosenberg v. Cuellar

• Decision Date: 17 March 1891
• Citation: 16 S.W. 58
• Parties: VON ROSENBERG v. CUELLAR <I>et al.</I>
• Court: Texas Supreme Court

16 S.W. 58

VON ROSENBERG v. CUELLAR et al.

Supreme Court of Texas.

March 17, 1891.

Appeal from district court, Webb county.

Walton, Hill & Walton and Bethel Coopwood, for appellant. W. Showalter, for appellees.

STAYTON, C. J.

This action was brought by W. Von Rosenberg, in form trespass to try title, to recover a tract of land in Encinal county, consisting of 17 surveys, of 1,280 acres each, located and surveyed by virtue of 17 land scrips, for 1,280 acres of land each, instituted in the district court of Webb county, to which Encinal county is attached for judicial purposes, on the 7th day of September, 1887. The defendants claimed the land as a Mexican grant, setting up their claim of title in their answer. There are two controlling questions in this case, either of which, decided against appellant, will be fatal to his claim, and they must both be decided in his favor to entitle him to recover. The first relates to the sufficiency of the facts shown by him to entitle him to recover against appellees or any person in possession, even without right; and, as the cause was tried without a jury, this branch of the case will be considered as though all the documentary evidence bearing on plaintiff's title had been admitted.

On the 27th and 28th days of September, 1883, plaintiff, being the owner of 17 land certificates, issued under the act of April 9, 1881, and known as "Confederate scrip," located them on the lands in controversy as may be headright and other certificates not requiring the survey of any land for the state, thus appropriating one body of land, embracing an area of 21,760 acres. The certificates were filed in the surveyor's office at the time of the locations, and there remained until after surveys were made. The surveys were made and returned to the general land-office within the time prescribed by law, but the certificates on which the surveys were made had not been returned to the general land-office on July 19, 1889, the day on which this cause was tried. These lands are situated in Encinal county, and before the field-notes were sent to the general land-office plaintiff withdrew the 17 land certificates from the surveyor's office of Starr county, to which Encinal is attached for surveying purposes, and in October, 1883, filed them in the office of the surveyor of Zapata county, where he designated lands which he desired to have surveyed for the school fund by virtue of the same certificates; but the surveyor declined to make the surveys, on the ground that the lands which plaintiff sought thus to appropriate were titled lands, and therefore not subject to location. On September 15, 1884, plaintiff brought an action in which he sought a writ of mandamus to compel the surveyor to make the surveys under these locations, and to return them to the general land-office, but, on hearing, that action was decided against him, and is now pending in this court on appeal. The court found that no valid surveys of the land in controversy were ever made; and, further, "that the plaintiff's file and locations on the lands in controversy are not valid in law, the certificates never having been returned and filed in the general land-office, as required by law, and will not support an action of trespass to try title; that the withdrawal of said land certificates from the hands of the surveyor of Starr land district by the plaintiff, and his failure to return the same to the general land-office with his field-notes, invalidates said field-notes, and that they are invalid and worthless as title."

It is not clear on what ground the court based the finding that no valid surveys of the lands in controversy were ever made; but from the brief of counsel the inference is that the court so held, on the ground that plaintiff, under the law, should have located and had the surveys made as alternate certificates granted to railroads were required to he, and that for this reason it was not lawful for plaintiff to locate all the lands he claimed for himself in one body, and to locate the school lands, which he was bound to locate, in some other place. As the locations were made, plaintiff selected for himself in one compact body 21,760 acres of land in one county, and a like quantity of land for the school fund in another, but we are not advised whether this is in one body. The law under which the certificates in question were issued provided that "the certificate granted under the provisions of this act shall be located as follows: The locator shall also locate a like amount of land for the benefit of the permanent school fund before either shall be patented, and such locations shall be made on any of the public domain of Texas not reserved by law from location." Gen. Laws 1881, p. 122. Each certificate issued under that act it was contemplated should be used to segregate from the public domain 2,560 acres of land, thus appropriating to the owner of the certificate 1,280 acres, and a like quantity for the school fund; and it was evidently intended that the surveys for each should be separate, and not that one survey of 2,560 acres should be made in which the owner of the certificate and the school fund should have equal, but undivided, interests; for one of the purposes, as well as the consideration on which these grants were to be made, was that the owner of such a certificate should segregate from the public domain 1,280 acres for the school fund. The act under which the certificates in question were issued did not, in terms, provide that they should be located as were alternate certificates issued to railway companies required to be under the act of August 15, 1876, nor does it declare that the locator shall have the right to select which of the two surveys shall be patented to him, and it may be that until further legislation regulating this matter no patent could legally issue for one of such surveys to the owner of the certificate. In Railway Co v. State, 77 Tex. 386, 12 S. W. Rep. 988, and 13 S. W. Rep. 619, it was said that "the act of April 9, 1881, granting lands to disabled Confederate soldiers, made the required division, by directing that the certificates should be located in alternate surveys, one of which was expressed in the act to be for the benefit of the permanent school fund. The act does not in words say that the other shall belong to the soldier or owner of the certificate, but nobody has hesitated to give it that construction." If the legislature had clearly given to the owner of such a certificate the right to select which of the two surveys required to be made he should have, such legislation would be valid, if the constitution interposes no obstacle to such a law; and, under such a law, had appellant caused two surveys to be made on vacant land, and returned the same to the general land-office on each certificate, then it would show such right as would enable him to maintain an action of trespass to try title for the lands selected by him; but it may be doubted, in the absence of such a law, if he shows any right sufficient for the maintenance of this action, even if he had shown that he caused a like quantity of land to be surveyed for the school fund by virtue of the same certificates. This question, however, we will not undertake now to decide.

If it be conceded that appellant had the right to select which of two surveys, made by any one certificate, he would appropriate to himself, this will not remove the obstacles to his right to maintain this action. In all the laws giving to individuals or corporations the right to acquire lands, coupled with a requirement that a like quantity shall be surveyed for the school fund, it has been contemplated that the surveys which the owner of the certificate shall have, and the surveys for the school fund under the same certificate, shall be contiguous, and there is nothing in the act under which the certificates owned by plaintiff were issued...