Weatherly v. Jackson

• Decision Date: 18 April 1934
• Docket Number: No. 1505-6255.,1505-6255.
• Citation: 71 S.W.2d 259
• Parties: WEATHERLY v. JACKSON et al.
• Court: Texas Supreme Court

71 S.W.2d 259

WEATHERLY v. JACKSON et al.

No. 1505-6255.

Commission of Appeals of Texas, Section B.

April 18, 1934.

COPYRIGHT MATERIAL OMITTED

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Statutory action of trespass by John Q. Weatherly against D. E. Jackson and others. A judgment adverse to plaintiff was affirmed by the Court of Civil Appeals [46 S.W.(2d) 1030], and plaintiff brings error.

Reversed and remanded.

Hines H. Baker, of Houston, and Ben H. Powell, of Austin, for plaintiff in error.

Proctor, Vandenberge, Crain & Vandenberge, of Victoria, for defendants in error.

James V. Allred, Atty. Gen., and Homer C. De Wolfe and R. W. Yarborough, Asst. Attys. Gen., amici curiæ.

SMEDLEY, Commissioner.

Plaintiff in error sued defendants in error for the title and possession of a tract of land in Calhoun county containing 149.28 acres, and described in the petition as lying between section 2 of F. W. Roemer survey No. 6 on its northwest and the E. Miller survey on its southeast, claiming ownership by purchase from the state of Texas under the provisions of article 5323 of the Revised Civil Statutes, authorizing the sale of unsurveyed land belonging to the public school fund. Defendants in error claim ownership of the land as a part of the F. W. Roemer survey and the E. Miller survey, or as a part of one of said surveys.

F. W. Roemer survey was originally surveyed March 31, 1876. The E. Miller survey was originally surveyed September 16, 1880, and was patented on the original survey. Its field notes do not call for or describe any line or corner of the F. W. Roemer survey. On January 19, 1894, the F. W. Roemer survey was resurveyed into two separate tracts; section No. 1 containing 19.5 acres, and section No. 2 containing 344.1 acres. The field notes of the Roemer survey as resurveyed do not call for any line or corner of the E. Miller survey. The Roemer survey was patented on the corrected field notes.

Following trial without a jury, judgment was rendered in favor of defendants in error. The Court of Civil Appeals affirmed the judgment of the trial court, holding: That the mere awarding of the land in controversy to plaintiff in error did not establish the existence of a vacancy; that the evidence did not in a satisfactory manner prove that there was unappropriated land; and that the action of the Commissioner of the General Land Office in advising defendants in error's predecessor in title, who applied to purchase the same land in 1926, that there was no vacancy, created estoppel precluding the subsequent awarding of the land.

Plaintiff in error in proof of the title claimed by him introduced in evidence certified copies of his application of inquiry filed in the General Land Office, stating that he desired to buy the land as unsurveyed public school land; the answer of the Commissioner of the General Land Office advising that there was doubt as to the existence of the area as public school land and authorizing a survey, the field notes prepared by a licensed state surveyor, together with a plat of the survey with the approval of said field notes by the Commissioner of the General Land Office, the formal application of plaintiff in error to purchase the land with his obligation for the payment of the balance of the purchase money after the payment of one fortieth of the appraised value, and the certificate of the Commissioner of the General Land Office awarding the land on said application to plaintiff in error, such certificate being of date August 5, 1929, and reciting that the application to purchase had been filed in the General Land Office on August 1, 1929, and that the cash payment of one fortieth of the appraised price had been made.

Plaintiff in error also introduced in evidence certified copy of the original field notes of the E. Miller survey and certified copy of the corrected field notes of F. W. Roemer survey No. 6, together with testimony tending to prove the location on the ground of the generally accepted northwest line of section 2, F. W. Roemer survey No. 6, and the location on the ground of the generally accepted southeast line of the E. Miller survey.

The first question presented is whether the record contains any evidence to sustain the finding of the Court of Civil Appeals that the land in controversy at the time it was sold by the state to plaintiff in error was not unappropriated, unsurveyed land belonging to the public school fund.

The documentary evidence offered by plaintiff in error shows that in purchasing the land in controversy he took in the method provided by article 5323 the several steps required to be taken under that law, and that the several steps so taken were sufficient to effect his purchase of the land if the land in fact was unappropriated, unsurveyed land at the time the steps were taken.

The case of Anderson v. Polk, 117 Tex. 73, 297 S. W. 219, 222, was a suit for mandamus brought under the terms of subdivision 2 of article 5323 for the purpose of determining whether the land applied for was in fact unsurveyed land belonging to the public school fund. The Commissioner of the General Land Office had advised the applicant in answer to his application of inquiry that the tract of land applied for was not vacant or unsurveyed land. The Supreme Court held that such action on the part of the Commissioner of the General Land Office raised the presumption that the area applied for was embraced within the boundaries of a valid grant, saying in connection with such ruling that to indulge the presumption was "but to apply the familiar principle that the law presumes that a public official has rightly performed his duty."

When the Commissioner has determined, upon the filing of an application of inquiry, from the examination of the records in his office, that the area applied for belongs to the public school fund, or that there is doubt as to the existence of the area as public school land, and the applicant has caused a survey of the land to be made and the field notes returned to the General Land Office, together with a plat and the report of the surveyor giving the classification and reasonable value of the land, it becomes the Commissioner's duty to inspect the papers so returned and again to examine the records of the General Land Office and to determine whether the land belongs to the public school fund and whether the survey has been made according to law. If he finds that these things are true, he is required to approve the field notes, classify and value the land, and notify the applicant. Thereupon the applicant files his formal application and makes his first payment, and the land is awarded to him. Thus it is made the duty of the Commissioner a second time to determine whether or not the area applied for is unappropriated, unsurveyed public school land. This he must do before he approves the field notes and before he awards the land. His approval of the field notes and his award of the land to the applicant raise the presumption that he has rightly performed his duties, and that the land is unappropriated, unsurveyed public school land. If, as held in the case of Anderson v. Polk, above cited, the Commissioner's action in declining to recognize the existence of an area as public school land, following the preliminary examination of the records of his office upon the filing of an application of inquiry, raises a presumption that the area is embraced within the boundaries of a valid grant, then certainly the more formal action of the Commissioner, in approving the field notes returned by the surveyor and in awarding the land to the applicant following the inspection of the field notes and plat and the second examination of the records in the Land Office, raises a prima facie presumption that the area applied for is unappropriated, unsurveyed public school land.

It is well settled by the authorities that proof of an award of public school land by the Commissioner of the General Land Office creates a prima facie presumption of the existence of the facts necessary to authorize the Commissioner to make the award.

In Gulf Production Co. v. State (Tex. Civ. App.) 231 S. W. 124 (application for writ of error refused), the state contended that a sale of public school land was void because the land was sold at $1.50 per acre when it had been appraised at $2 per acre. The application was made to purchase the land at $1.50 per acre, and on this application the land was awarded. The court reversed and rendered the judgment of the trial court, holding that the act of the Commissioner of the General Land Office in awarding the land on such application created the definite presumption that the land had theretofore been appraised at $1.50 per acre and the county clerk notified of such appraisal, and that the evidence offered by the state was insufficient to overcome the presumption, and saying: "And while appellees in attacking the validity of the sale and award had the right to rebut that presumption, the burden of proof was upon them to do so and by direct and affirmative evidence."

See, also, Corrigan v. Fitzsimmons, 97 Tex. 595, 80 S. W. 989; Smithers v. Lowrance, 100 Tex. 77, 93 S. W. 1064; Clements v. Robison, 111 Tex. 449, 239 S. W. 902; Holt v. Cave, 38 Tex. Civ. App. 62, 85 S. W. 309 (application for writ of error refused); Hood v. Pursley, 39 Tex. Civ. App. 475, 87 S. W. 870.

It is our opinion that plaintiff in error, by the evidence introduced by him, particularly that showing the approval of the field notes and the awarding of the land, proved prima facie that the land in controversy, at the time he purchased it from the state, was unappropriated, unsurveyed school land.

The next inquiry is whether the evidence introduced by defendants in error rebuts the prima facie presumption so raised.

The evidence relied upon by defendants in error to prove that the land in controversy was not unsurveyed school land at the time of...