Wortham v. Walker

• Decision Date: 08 February 1939
• Docket Number: No. 5689.,5689.
• Parties: WORTHAM v. WALKER, Commissioner of General Land Office, et al.
• Court: Texas Supreme Court

Page 1138

128 S.W.2d 1138

WORTHAM v. WALKER, Commissioner of General Land Office, et al.

No. 5689.

Supreme Court of Texas.

February 8, 1939.

Rehearing Denied June 7, 1939.

Original mandamus proceeding by Gus S. Wortham, as executor and trustee in and under the will of his father, John L. Wortham, deceased, and as trustee for the surviving widow and heirs of deceased, against J. H. Walker, Commissioner of the General Land Office, and others, to require the Commission to classify, appraise, and value, as dry grazing lands, certain areas.

Writ refused.

R. H. Ward, John G. Logue, and Andrews, Streetman, Logue & Mobley, all of Houston, for relator.

Robert Lee Bobbitt, of San Antonio, and James V. Allred, of Houston, formerly Attys. Gen., and W. W. Caves, of Henderson, George T. Wilson, of San Angelo, and R. D. Cox, Jr., of Mission, formerly Asst. Attys. Gen., and E. C. Gray, of Higgins, for respondents.

Clint C. Small, of Amarillo, W. H. Francis, A. S. Hardwicke, and Walace Hawkins, all of Dallas, R. H. Templeton, of Wellington, and Dewey Young, of Dallas, amici curiæ.

SAMUELS, Special Chief Justice.

This suit is an original proceeding in mandamus, instituted in this Court by Gus S. Wortham, relator, in his capacity as executor and trustee, in and under the will of his father, the late John L. Wortham, deceased, and as trustee, as well, for the surviving widow and heirs of the decedent, against J. H. Walker in his official capacity as Commissioner of the General Land Office of Texas, and also against J. E. Anderson, Charles Williams, and E. C. Gray, who, as private citizens, set up claims to the land in controversy through grants from the United States Government.

The relator seeks to require the Land Commissioner, through writ of mandamus issuing from this Court, to classify, appraise, and value, as dry grazing lands, certain areas, a part of the public domain, within the Counties of Lipscomb, Wheeler, Collingsworth, Hemphill and Childress, lying west of the 100th meridian, and that such classification and appraisement be made as of the day on which the several surveys were made, that is to say, as of the months of January and April, 1910; further, that the Land Commissioner adopt and accept the classification and valuation of the surveys in question, as made by the County surveyors and District Land surveyors in order that relator, in behalf of the representatives and heirs of the late John L. Wortham, may make application for the purchase of the lands, and thereafter obtain and receive patents therefor.

The Land Commissioner, main respondent, answering through the Attorney General, has admitted of record, with certain reservations hereinafter mentioned, the salient facts, set forth in the petition of the relator, and has agreed that the questions for decision by this court are those purely of law. In other words, the Land Commissioner, among other things, admits that the Eastern boundary line between the State of Texas and what is now the State of Oklahoma, is one that extends north from the intersection of the 100th meridian with the south bank of the south fork of the Red River, to the intersection of this Meridian, with Parallel 36 degrees 30 minutes. It is further agreed, however, that this meridian, in its extension, from the south bank of the south fork of the Red River, to the intersection of the parallel above mentioned, was not authoritatively established or its location upon the ground fixed or marked, until the matter had been determined by suit in the United States Supreme Court in the case of State of Oklahoma v. State of Texas, 272 U.S. 21, 47 S.Ct. 9, 71 L.Ed. 145. Further, that prior to this decision, the boundary line had been regarded by the local authorities of the United States and by the State of Texas and the State of Oklahoma, as having been fixed upon the ground by what was commonly known as the Jones-Brown-Clark line, and that prior to the decision of the United States Supreme Court in the above mentioned case, the State of Texas had not exercised any jurisdictional police or taxing power in the disputed area, except as to that part formerly embraced within the boundaries of Greer County, and had not granted, sold or otherwise disposed of any lands within such area. Further that during such time, the State of Texas had exercised such powers, and all the usual and ordinary attributes of sovereignty only so far eastward as the line commonly known and designated as the Jones-Brown-Clark Line, except as to the area east of such line which had been embraced within the boundaries of Greer County when Texas was exercising control over that region. Further, that after the running and location upon the ground of the Jones-Brown-Clark Line, sovereignty over such area, under claim of right to do so, was sought to be exercised by the Government of the United States, and of the State of Oklahoma, except as to that part within the 100th meridian embraced within the boundaries of Greer County, but that after the decision of the United States Supreme Court, in what is known as the Greer County case [U. S. v. Texas, 162 U.S. 1, 16 S.Ct. 725, 40 L.Ed. 867], had been rendered, complete sovereignty was exercised over such County by the United States Government and by the territory of Oklahoma, and subsequently by the State of Oklahoma, when in 1907 it was admitted into the Union as a State. It was further stipulated in this agreement, that the State of Texas, at no period of time, from the running of the Jones-Brown-Clark Line, in 1859 and 1860, had either before or after the decision in the Greer County case, recognized or acquiesced in such line as the established boundary on the ground between Texas and Oklahoma, and that this was equally true of the attitude of the United States Government, and of the Government of the State of Oklahoma. Further, that since the passage by the Texas Legislature of the Act of 1903 (1st Called Sess., c. 7), in which the survey of Kidder was officially recognized, the State of Texas, through its constituted authorities, continued to maintain and contend that the line run by Kidder in 1903, which marked the intersection of the 100th meridian with parallel 36 degrees 30 minutes, correctly located the true intersection of the 100th meridian with the Red River, and properly marked the true boundary line on the east between the State of Texas and the State of Oklahoma.

The respondent, Walker, while admitting in substance, the facts round which the claim of the relator revolves, nevertheless, contends that the claim of relator in the lands, measured by the terms of his petition, should not, in any event, extend to the true meridian, but should stop at the Kidder Line, since the Kidder Line fell short approximately 371.5 feet, of reaching the meridian astronomically located on the ground; and further, that since Survey No. 18, in the petition of relator, includes the bed of the north fork of Red River, which is a statutory navigable stream, and may not be lawfully crossed by or included within a survey, no right or claim on the part of relator to such survey could be lawfully entertained or recognized.

The claim of each of the co-respondents Anderson, Williams, and Gray, is based upon patents issued by the Government of the United States of America, confirmed by the State of Oklahoma, prior to the adjudication of the boundary line by the Supreme Court of the United States in the decision hereinabove set out.

These patents were issued by the Government of the United States before it had been authoritatively determined that the location of the Jones-Brown-Clark Line lay considerably west of the true meridian and at a time when confusion existed in the minds of the authorities concerning the line of the 100th meridian astronomically marked and established on the ground.

It appears from the undisputed facts in the records, that on April 10th, 1910, John L. Wortham, applied to the District Surveyor of the Wheeler Land District for the survey of all the area lying west of the true 100th meridian of longitude. Because of the controversy, then undetermined, respecting the exact boundary line between Texas and Oklahoma—that is the true line of demarcation on the ground of the 100th meridian—the land was described in the application as that body lying east of the Counties of Collingsworth, Childress, and that part of Wheeler County, lying south of the north fork of the Red River.

Proceeding further, on May 10th, 1910, the same applicant, John L. Wortham, having doubts whether certain lands described as in the Wheeler District were therein situated (this subdivision having been created out of the old Clay District) filed his application for survey of all the territory lying west of the eastern boundary of the State, and east of the boundaries of Childress, Collingsworth, Wheeler, Hemphill and Lipscomb Counties, according to the line of the 100th meridian, located by Brown-Jones and Clark, whose delineation on the ground is discussed in a subseqent paragraph of this opinion.

In the case of both applications, the surveys were made as required by law, and the field notes, with the applications, were returned to the General Land Office within the prescribed period of ninety days, accompanied by the classification and appraisement of the surveyors.

The applications were made pursuant to Chapter 103, page 159, Act of the 29th Legislature, April 15th, 1905, at its regular session, as amended by the Act of 1907, providing for the sale and lease of Public School and Asylum lands, brought forward as Article 5432 in the Revised Civil Statutes of 1911. The applications, if valid, fell particularly within the pale of Section 8 of the Amended Act relating to the unsurveyed lands of the public domain.

It is conceded that Wortham, the applicant, duly paid the requisite filing and surveyors fees in connection with his applications of purchase, and also other expense in making the...