Yoakum County v. Slaughter

• Decision Date: 01 November 1913
• Citation: 160 S.W. 1175
• Court: Texas Court of Appeals
• Parties: YOAKUM COUNTY v. SLAUGHTER.<SMALL><SUP>†</SUP></SMALL>

160 S.W. 1175

YOAKUM COUNTY v. SLAUGHTER.^†

Court of Civil Appeals of Texas. Amarillo.

November 1, 1913.

On Motion for Rehearing, December 6, 1913.

Appeal from District Court, Tarrant County; R. H. Buck, Judge.

Action by Yoakum County against C. C. Slaughter. Judgment for defendant, and plaintiff appeals. Reversed and rendered.

Sayles, Sayles & Sayles, of Abilene, for appellant. Henry C. Coke, of Dallas, for appellee.

HALL, J.

Yoakum county instituted this suit in the district court of Tarrant county against C. C. Slaughter, for the sole benefit of appellant's public schools, to recover title to, the possession of, and rents from, leagues Nos. 82, 83, and 84, and portions of leagues Nos. 81 and 85 (aggregating 17,712 acres of land) situated in Hockley and Cochran counties, alleging such leagues to be a part of the 300 leagues of land surveyed for the unorganized counties of Texas, under the provisions of an act of the Seventeenth Legislature of Texas, approved March 26, 1881 (General Laws of Texas of 1881, c. 61, p. 65), praying for the removal of cloud from its title and for the cancellation of patents to said four leagues of land; such patents purporting to have been issued by virtue of the act of the Eighteenth Legislature of Texas, approved April 7, 1883 (General Laws of Texas of 1883, c. 55, p. 45), to Shackelford county, for public school purposes, under which county the appellee, Slaughter, holds. It is alleged that Yoakum county had been created but was unorganized at the time the act of the Seventeenth Legislature, approved March 26, 1881, took effect, and at which time Shackelford county was duly organized. Appellee Slaughter answered by general demurrer, general denial, and plea of not guilty. The trial was before the court without the mediation of a jury, and judgment was rendered that plaintiff, Yoakum county, take nothing and that defendant, Slaughter, go hence without day and recover his costs.

The appellee, Slaughter, claims title under the act of 1883. The sections of the act of 1881 necessary to a decision of the questions presented here are as follows:

Caption: "An act to provide for designating and setting apart three hundred leagues of land out of the unappropriated public domain for the benefit of the unorganized counties of the state, and to provide for the survey and location of the same:

"Section 1. Be it enacted by the Legislature of the state of Texas, that the Governor, Comptroller, Treasurer of the State, Attorney General, and Commissioner of the General Land Office, are hereby constituted a board to contract with some suitable person or persons to survey and return to the General Land Office the field notes and plats of 300 leagues of land from any of the unappropriated public domain within the state, or any of the reserves made by the act of the Legislature of July 14, 1879, which shall constitute a reservation out of which each of the unorganized counties of this state, as it may be organized, shall be entitled to four leagues of land for free school purposes."

"Sec. 5. The field notes and maps of the surveys shall be recorded in a well bound book or books by the contracting surveyor, the original of which shall be returned under oath to the General Land Office, and shall constitute an archive therein; and the said contractor or contractors shall furnish each district surveyor in whose district lands are surveyed, a copy of the field notes and maps of surveys made in his district, also recorded in a well bound book, which shall constitute a record of his office."

"Sec. 7. Each league of land shall be numbered in the order it is surveyed by the contractor or contractors, beginning at No. 1 and extending to No. 100, and as each of the unorganized counties in the state shall be organized, such county shall be entitled to the first four leagues out of the reservation authorized by this act, which shall not have been patented to other counties for free school purposes, upon the payment to the Treasurer of the State the actual costs of the surveying fees and legal interest thereon from time of payment by the state; and upon the payment of the cost of surveying and patent fees, the Commissioner of the General Land Office is hereby required to issue patents to said county for four leagues of land as above provided; provided, any county that fails to pay surveying and patent fees under this act, within three years after its organization, shall forfeit all claims to the land herein donated."

"Sec. 9. Said board shall direct the time and manner in which all plats and field notes of surveys made by the contractors under this act shall be made, one copy of which shall be deposited in the General Land Office."

So much of the act of 1883 as is necessary to be stated here is as follows:

Caption: "An act to reserve and set apart 325 leagues of land heretofore surveyed for the benefit of the unorganized counties of the state and such organized counties as may have located their four leagues of school land, or any part thereof in conflict with valid prior locations or surveys, or which may from any cause fail to get title to the four leagues of land they are entitled to under the law. Whereas, the commissioner and contractor, under an act entitled `An act to provide for designating and setting apart three hundred leagues of land out of the unappropriated public domain, for the benefit of the unorganized counties, and to provide for the survey and location of the same,' approved March 26, 1881, have surveyed 325 leagues; and whereas, some of the four leagues of land surveyed for some of the organized counties of this state, have been located in conflict with other older surveys; and whereas, other instances of this kind may arise; therefore:

"Sec. 1. Be it enacted by the Legislature of the state of Texas: That the three hundred and twenty-five leagues of land heretofore surveyed under the provisions of an act entitled `An act to provide for designating and setting apart three hundred leagues of land out of the unappropriated public domain, for the benefit of the unorganized counties of the state, and to provide for the survey and location of the same," approved March 16, A. D. 1882, be and the same is hereby set apart and shall constitute a reservation out of which each of the unorganized counties of this state, as it may be organized, shall be entitled to receive four leagues of land for free school purposes, and out of which such organized counties of this state, as may have located their certificate for four leagues of school land in conflict with or upon land already appropriated by valid prior location and survey, or which from any cause have failed to get title to their four leagues of school land, shall be entitled to receive so much of said land as may be necessary to secure to any such county the number of acres it may be entitled to from any cause, or that may be declared to be in conflict by the Commissioner of the General Land Office."

Section 2 of this act is identical with section 7 of the act of 1881, supra, except this provision, "But said counties shall not be required to pay patent fees for said patents," thus relieving the unorganized counties of the burden of paying the patent fees provided in section 7 of the act of 1881.

Then follows section 3: "Any organized county in this state, shall in like manner as provided in the preceding section of this act, be entitled to receive so much of said land, not exceeding four leagues, as shall be necessary to secure to any such county, the number of acres of land heretofore located by such county, and which shall be declared to be in conflict with prior locations, and surveys by the Commissioner of the General Land Office or by the decree or judgment of any court having jurisdiction of the subject-matter. And it shall be the duty of the Commissioner of the General Land Office, upon the written application of the county judge and any two of the county commissioners, accompanied by the decision of the Commissioner of the Land Office, or a certified copy of such decree or judgment, to issue patents to such county upon the same conditions and in like manner, as is provided for unorganized counties, provided, if any such county should be entitled to receive a quantity less than one league, such land shall be surveyed at the expense of such county, in a square figure with at least two lines thereof (where more than one line is run) commencing on lines of original survey as may be selected by the county judge of the county that is entitled to the survey."

"Sec. 5. That all laws or parts of laws in conflict with this act, be and the same are hereby repealed."

As bearing upon the issues hereinafter considered, a portion of article 7, § 6, of the Constitution of 1876, as amended August 14, 1883, and which has so existed from that date, is here quoted: "All lands heretofore or hereafter granted to the several counties of this state for educational purposes are of right the property of said counties respectively to which they were granted, and title thereto is vested in said counties, and no adverse possession or limitation shall ever be available against the title of any county." The amendment of August 14, 1883, made no material change in this clause of the article, as it existed in the Constitution of 1876. It is shown by the record that the locating surveyor or contractor under the act of 1881, who was directed to return field notes for 300 leagues of land, for some reason unexplained, returned the field notes for 25 additional leagues. Twenty-five of the 325 leagues so returned had been patented to counties which were organized before the act of 1881 took effect, prior to the issuance of patents to the organized county of Shackelford, for the four leagues in controversy. Appellant's theory of this case is that the counties created but unorganized prior to the act of 1881, or afterwards created, and necessarily then...