SOUTHERN PINE LUMBER CO. v. CONSOLIDATED LOUISIANA LUMBER CO., 217 F. 719

MAXEY, District Judge (after stating the facts as above). It is a well-recognized principle of law that, in actions of trespass to try title, the plaintiff must recover upon the strength of his own title. If, then, the Consolidated Company exhibited a valid title in itself to the timber and land in controversy, the judgment was right. But if, on the other hand, the title relied upon by it was invalid, the judgment was wrong.

We are thus brought to a consideration of the question of the validity or invalidity of the title exhibited by the Consolidated Company, and upon its solution will depend the result of the present suit. To solve the question it becomes necessary to ascertain whether the Commissioner of the General Land Office of Texas had authority to-place the land upon the market for sale and to issue patents to Stevenson ; it being conceded that, if the authority existed, the patents passed an indefeasible title to Stevenson and to his remote vendee, the Consolidated Company.

The question suggested was directly raised by the Southern Company in the following requested instruction, which was refused by the trial court: “The evidence in this ease shows that the land and timber in controversy was not on the market subject to sale by the Commissioner of the Land Office at the time the applications were made to purchase the same, nor at the time the land or Umber was awarded to Stevenson, nor at the time the timber deeds were executed, or the patent to the land issued, and the act. of the Commissioner in attempting to sell the land and timber was without authority ol' law and passed no title to the plaintiff, and the plaintiff cannot recover in this case, and you will find a verdict for the defendant.” It has been shown in the statement -of the case that Stevenson made the purchase of the land and timber under

section 8 of the Act of 1905, and it clearly appears that, in making his purchase, he complied with the provisions of the act. If the Land Commissioner had authority to place the land upon the market and sell the same, Stevenson’s title was unassailable. Did he have such authority? After carefully considering the question we have reached the conclusion that he did not have the authority claimed.

Generally speaking, it may be said that he was invested with authority to sell the lands belonging to the school' fund as provided by the act of 1905; but where lands were held, ocpupied, or claimed by any person, association, or corporation adversely to the state, or to such fund, they formed no part of the school fund until their recovery by the state in a suit instituted by the Attorney General.

Section 8, Act Feb. 23, 1900. See Session Acts 1900, First Called Session, pp. 33, '34. And we think this is especially true in respect of lands held or claimed by persons adversely to the state and to the school fund under Spanish or Mexican titles, since it is expressly provided in

section 8 of the act of 1905: “That land heretofore or hereafter recovered by the state from claimants holding or claiming same under Spanish or Mexican titles shall be considered as vacancies disclosed by the official maps, and the person who in good faith so held or claimed such land under the claim aforesaid shall have a prior right for ninety days after the taking effect of this act, or after the date of final recovery of such land hereafter, to file on and purchase four sections of six hundred and forty acres each for cash,” etc.

In 1904 a similar question was passed upon by the Supreme Court of Texas in Juencke v. Terrell, Commissioner, 98 Tex. 237, 239, 82 S. W. 1025, 1026, in which was construed

section 6 of tlíe act of 1900. The reasoning of Mr. Chief Justice Gaines applies with peculiar force to the present case, and the opinion is inserted in its entirety: “This is a motion for leave to file a petition for a writ of mandamus against the Commissioner of the General Land Office. The facts relied upon for the grant of the writ, briefly stated, are as follows: In the year 1904 the relator, desiring to purchase a tract of 640 acres of land in Liberty county under the act of April 15. 1901, amendatory of the sixth

section of the act of B'ebruary 23, 1900, which set apart the unappropriated public domain of the state to the public school fund and provided for its sale, filed his application to purchase, caused a survey to be made by the surveyor of the county, and the application and field notes to be returned to the Land Office. For the purposes of this opinion it may be assumed that all the requirefhents of the statute were complied with.

The Commissioner refused to approve the field notes, and to classify and value the land, and to place it upon the market, because the survey was ‘in conflict with what appears to be a prior and incomplete grant of a league of land made by the governments of the states of Coahuila and Texas to Phillip P. Dever.’ The petition further alleges, in substance, that E. M. Vaughan and F. P.

Works claim to be owners of, or to have some interest in, the tract sought to be purchased, and that they claimed under the incomplete grant before mentioned. ■ “We are of the opinion that, where there is a dispute as between the state and another party as to the title to a tract of land, the Commissioner cannot be compelled to make a sale. It is hardly within the scope of his functions or duties to pass upon titles in such cases; and we should be reluctant to hold that the Legislature- intended to impose such duty upon him, in the absence of language in the statute showing clearly that intent.

It is known that at the date of' the original act which appropriated these lands to the school fund there were many large bodies of land lying in the state held by persons who asserted title thereto, and whose titles had never been adjudicated and were not conceded. It is unreasonable to suppose that the Legislature intended to put such lands upon the market for sale, and thus to turn loose upon the courts a flood of litigation ds between the purchasers and the adverse claimants. On the contrary, we think that the purpose of the Legislature with reference to them is shown by the eighth

section of the act. That

section in

part is as follows: ‘When any of the lands described in this act, or any of the other-public lands of the state held or owned by any fund, or any land in which this state or any such funds have an interest, are held., occupied'or claimed by any person or association or corporation, adversely to the state, or to such -fund, it shall be the duty of the Attorney General to Institute suit therefor,’ etc.

From this we think it is to be inferred that the policy of the- Legislature in reference to lands which were claimed by third parties was first to establish its title before putting them upon the market for sale, and that it was not intended that they should be sold until the controversy between the state and the claimants had been adjudicated. ‘•The present Constitution contains this provision: * * * ‘All genuine land certificates heretofore or hereafter issued shall be located, surveyed or patented only upon vacant and unappropriated public domain, and not upon any land titled or equitably owned under color of title from the sovereignty of the state, evidence of the appropriation of which is on the county records or in the General Land Office; or when the appropriation is evidenced by the occupation of the owner, or of some person holding for him.’ Const, art. i-i, § 2.

This provision does not prohibit the Legislature from providing for the sale of such lands; but it very clearly evinces the policy of the state not to encourage litigation by permitting the acquisition from the state of lands which appear upon the official records, or by actual occupancy, to bo claimed adversely to it. It should not lightly be assumed that the Legislature intended to depart from that policy. “Our conclusion is that

section C of the act, under construction applied only to such lands as appeared upon the maps and records of the General Land Office not to be claimed by other parties and to such as had been adjudged to the state, if ever so claimed.” In view of the fact that the south league of the Sepulveda grant, the land involved in the present controversy, has been claimed adversely to the state since 1824; that it has been for more than half a century delineated upon the maps of the Land Office, and regarded by that office, or by some of its incumbents, as a valid grant; that there are, and have -been for a number of years, numerous persons residing on the land, paying taxes and claiming under the Sepulveda title; and in view of other pertinent facts appearing in the statement of the case — it is, repeating the language of the Supreme Court, “unreasonable to suppose that the Legislature intended to put such lands upon the market for sale, and thus to turn loose upon the courts a flood of litigation as between the purchasers and the adverse claimants.” We are firmly impressed with the conviction that it was the intention of the Legislature, as manifested by the acts to which reference has been made, to reserve from sale lands claimed adversely to the state and to the school fund in good faith under Spanish or Mexican grants, “until the controversy between the state and the claimants has been adjudicated” in favor of the state.

In the absence of such adjudication the lands could not be legally placed upon the market for sale; and it follows that the act of the Commissioner in selling the land in question to Stevenson was against the law, and hence without validity. We are unable to give our assent to the suggestion, made by the Consolidated Company, that the Legislature intended, either by the act of 1905, or by any subsequent legislation, to change or in any manner to modify the rule announced in Juencke v. Terrell.

It is further stated by counsel in their brief that the question here involved was determined in favor of the Consolidated Company by the Attorney General and Land Commissioner, and that the practical construction of those two officials is of great weight, and should be so regarded by a United States court in construing a state statute. In this connection counsel refer to G., H. & S. A. Ry. Co. v. State, 77 Tex. 367, 12 S. W. 988, among other authorities. In 77 Tex. at page 388, 12 S.

W. 995, it was said by the1 court: “But when, as in this case, seven successive Legislatures have through a period of 13 years acted upon a given construction of the Constitution; when the department intrusted with the immediate administration of the land system of the state has uniformly concurred in that construction, and when successive Governors of the state, eminent for their patriotism and intelligence (more than one of them having first served with distinguished success in this court), have approved it, we feel that nothing less than an absolute conviction that they have all been wrong would justify us in so deciding.” The principle announced is a salutary one, and would be readily applied in the present case, if the facts here involved were in the slightest degree similar to those appearing in the case cited.

Without discussing the testimony, we deem it only necessary to say that the principle is wholly inapplicable to the case at bar. Having reached the conclusion that the title of the Consolidated Company is without validity, and hence that that company must fail in the suit, it becomes unnecessary, as it would be improper, in the absence of real parties in interest, to determine whether the south league of the Sepulveda is a subsisting valid grant. Upon that question, therefor, we intimate no opinion.

In view of the foregoing, we are of the opinion that the trial court erred in refusing to give the instruction requested by the Southern Company, and' for the error thus committed the judgment against that company and Fall should be reversed, and the cause remanded for a. new trial. And it is so ordered. Note by the Court. — Some days prior to his death, Judge SHEEBY communicated by letter his concurrence in the foregoing opinion.