Andrew Wyllie v. R. H. Wynne and Others, 26 Tex. 42

Bell, J. We are of opinion that the court below erred in excluding the testimony offered by the plaintiff, and also in the instructions given to the jury. The testimony in the case does not disclose the particular circumstances under which the file was made by W. D. Wallock with the County Surveyor of Gonzales county. The land scrip in question was issued to John Withers, and there does not appear to have been any assignment or transfer of the scrip previous to June, 1840, when the file was made. The file is signed by “W. D.

Wallock, agent,” and it maybe presumed that he acted, in making the file, as the agent of the person to whom the scrip belonged. At all events, as between the parties to this suit, the file must be held' to have enured to the benefit of the owner of the scrip, by virtue of which the file was made.

It was undoubtedly the right, and, under the circumstances of this -case, it was perhaps the duty of the plaintiff to show that his certificates or scrip remained in the Surveyor’s office in support of his file, otherwise it might properly have been presumed in 1845, when the location of the defendant was made, that the file of the plaintiff had been abandoned.

The plaintiff offered to show, by the testimony of Chenault and Bellinger “ That the location and certificates under which the plaintiff claims were on file in the office of the Surveyor of Gonzales county, at the time and before the location was made under which the defendants claim.” This evidence was rejected by the court below, and we think erroneously. The instruction given to the jury by the court below, made the case to turn upon the single fact that the defendants- claimed under a patent.

The court said, “ If the jury believe, from the evidence, that the defendants claim under a patent, you should find for defendants, unless you believe that defendants’ patent was obtained by fraud.” ’ There was no evidence t of fraud on the part of the defendants. The patent under which they claimed was in evidence: it follows, therefore, that the instruction of the Judge Was decisive of the whole case. We do not understand it to be the law that a patent can be impeached only for fraud.

On the contrary, ive suppose that a patent issued either advisedly or inadvertently by the Government, can confer no right to land which has previously been legally appropriated by another person than the patentee. The file made by W. D. Wallock in June, A. D. 1840, designated with sufficient particularity the land which he intended to appropriate; and the file and certificates by virtue of which it uras made, were constructive notice to all others that the land designated in the file was appropriated.

It was the practice of the country to a considerable extent, and one which was recognized by the court, to hold lands by files merely, without actual surveys. And we believe this practice was in conformity with law. The 23d

section of the act of limitations of 1841, provides “ That all certificates for head-rights, land-scrip, bounty warrant, or any other evidence of right to land, recognized by the laws of the government, which have been located or surveyed, shall be deemed and held as sufficient title, to authorize the maintenance of actions of'ejectment, trespass, or any other legal remedy given by law.” It has sometimes been contended that the words “ located or ■surveyed,” used in the

section just quoted, were intended to mean the same thing, and that a survey was a necessary part of a location. But aside from the practice which existed to the contrary, it may be shown from the statutes themselves that the word “ location ” is not used, or is not accurately used as synonymous with the word “ survey.” For instance, in the 8th

section of the act of February 10th, 1852, it is said, “ All lands heretofore located by virtue of any genuine claim to land, shall be surveyed within twelve months from the passage of this act, and all lands which may be hereafter located shall be surveyed within twelve months from the date of the location, &o.” We are not aware of any law which required a survey to be made of land previously located, until the passage of the act just quoted, of the 10th of February, 1852. That law was doubtless enacted to remedy what had become an evil in the land-system of the State.

Men had appropriated the public domain by filing their certificates, and neglected to have their lands surveyed for so long a time that it became necessary for the State to take measures to compel parties to survey the lands upon which they had filed, and to return the field notes. The plaintiff in the present case obeyed the requirements of the act of.February, 1852, by causing the land designated by his file to be surveyed, and by returning the field notes to the Land Office before the 31st day of August, 1853.

If itf be true then that he did not abandon his location, but permitted his certificates or scrip to remain in the Surveyor’s office where his file was made, and surveyed his land and returned the field notes to the Land Office as soon as the law required him to do so, then we cannot perceive any clear ground on which his right to the land which he has sought to appropriate can be denied; especially when he claimed as the purchaser of scrip which stipulated that “he should receive his title without any other expense than the purchase money.” We are aware that in the case of Lewis v.

Darst, 10th Tex., 398, it was said that “ The locator will not be permitted to hold a preference, and keep out other locators, after reasonable time for his survey to be made and returned to the same officeand further, that the party “ was chargeable with great negligence in permitting the land he had designated to .remain two or three years without being surveyed.” But in the ca'se of Lewis v.

Darst, there had been no file, and the opinion of the court put the case upon the ground that Lewis had made no file, as was required by the instructions issued by the Commissioner of the Land Office on the 2nd of February, 1838. The case of Williams v. Craig, 10 Tex., 437, appears to be in opposition to the view which a majority of the court have taken of the case now before us. The facts of that case do not appear to have been very fully developed.

The court, however, express the opinion that where a party filed his certificate in 1838 and designated the land which he wished to appropriate, but failed to have the land surveyed and the survey returned to the Surveyor’s office until 1841, the presumption would arise, from lapse of time, that the certificate had been withdrawn; and another location and survey made in 1841, even with knowledge of the previous file made in 1838, would secure the land to the last locator. In the correctness of this proposition, a majority of the court are now not able to concur.

We think it requires from the party who made a location upon public land, a degree of diligence never required by the law, until the passage of the act of February 10th, 1852. The judgment of the court below, in the present case, is reversed, and the cause remanded for another trial. Reversed and remanded. Chief Justice Wheeler dissenting.