C. R. Johns v. Wayne Pace and others, 26 Tex. 270

Bell, J. When this shit was instituted, the questions arising upon the pleadings were precisely the same as those adjudicated by this court in the case of Upshur v. Pace, 15 Tex. R., 531. By the opinion 'and judgment of this court in the case of Upshur v. Pace, it was determined that the land located by virtue of the certificate of Mary Ann Clark reverted to the public domain, because of the failure to return the field notes of that survey to the Land Office by the 31st day of August, 1853, according to the requirements of the act of the 10th of February, 1852.

It was also determined (in the case referred to,) that the tax title of the present appellant was never of any validity. It only remains to determine, in the aspect of the case which is now presented, whether the acts of George W. Glasscock, who was a part owner of the Mary Ann Clark certificate, amounted to an abandonment of the land in controversy in April, 1850, so as to give validity to the location made by the appellant in December, 1852. The cases of McGimpsey and others v. Ramsdale, (3 Tex., 344,) and Hollingsworth v.

Holshousen, (17 Tex., 41,) have settled that the owner. of a land certificate which has been located, may abandon the location at any time before the certificate is merged in a patent, “ provided he does not thereby interfere with the rights of any other person.” In the case of Hollingsworth, vs. Holshousen it was said that the question of abandonment was one of fact, to be decided by the jury under all the circumstances of the case.

In the present case, the question of abandonment was coupled with another question, and that was, the right of Glasscock to abandon the location, which latter question depended for its solution upon the question of fact, whether or not Glasscock had any proper authority from Britton, the other part owner of the Clark certificate and of the land lo-bated by virtue of it, to abandon the Plum Creek survey. The questions of fact were all fairly submitted to the jury, under appropriate instructions as to the law.

The defendant below failed to show that Glasscock Was authorized by Britton to abandon the location on Plum Creek; nor Was it shown that Britton in any manner consented to, or had any knowledge of, the uses to which Glassoock put the Clark certificate.

Without authority from Brit-ton, or such consent and acquiescence on the part of Britton as Would be equivalent to a previous authorization, Glasscock could not abandon the location and survey made by Britton himself, though his use of the certificate as far as the unlocated portion of it was concerned, Would perhaps have been binding upon Britton, the other part owner. In the case of .Hollingsworth v.

Holshousen, the court attached importance to the fact that there was no evidence to show that the plaintiff in that case (Holshousen,) was misled in making his survey by the fact of the prior survey upon the conditional certificate of Gray, or that he was induced to make his survey under the belief that the defendant’s certificate was located upon other land. So in this case it is Worthy of remark that the appellant, Johns, was not led to make his location in December, 1852, by any belief that the Clark survey had been abandoned in 1850 by Glasscock.

It is conclusively shown that he had no knowledge of the location made in April, 1850, by Glasscock, until long after the month of December, 1852. We do not deem it necessary to discuss other questions which are made in the case, because they are not necessaiy to its decision. The judgment of the court below is affirmed. Judgment affirmed.