James T. Ward and others v. John H. Conner, 33 Tex. 549

Morrill, C. J.

We are called upon to give á judicial construction to the act of thirtieth of August, 1856, entitled “An act prescribing the manner of entering land certificates or scrip, and to prohibit the lifting and floating the same.” (Articles 4573, 4574 and 4575, of Paschal’s Digest.) More especially, the point arising in this case is whether the passage of this act, either expressly or by necessary implication, requires whosoever wishes to appropriate land by having the same 1 surveyed and patented, “ to file in the register of entries of the district surveyor a certificate or land warrant, together with a written entry or application, particularly describing the land,” etc., and necessarily repeals the portion of the seventeenth

section of the land law of 1837, (Art. 4526,) which provides that “ any certificate shall be sufficient evidence to authorize any lawful surveyor to survey for any person holding such certificate any lands which he may point out.” ■fhe act of the thirtieth of August, 1856, is as follows: “ Sec. 1. Hereafter each county and district surveyor in the State shall keep in his office a well bound book as a register of entries, in which he shall register entries or applications for land in his county or district.

He shall also, before registering an entry or application, require the applicant to file his land certificate or •scrip, or other legal evidence of title to land, together with a written entry or application, particularly describing the claim to be surveyed, the date of the entry or application, and the land -applied for, in his office, which he shall not allow to be taken frem thence until the same is returned, together with the field notes, to the General Land Office; but the survey shall be made by a copy -of the entry, and strictly in accordance with the same; provided. that nothing in this act shall be so construed as to prevent holders of certificates or scrip from having the same surveyed without ■entry.

But such survey shall not' have a preference, or give any right -over a location or entry of the same land previously made in the proper office. a Sec. 2. It shall not be lawful for such surveyor to allow the holder of any land certificate or scrip, -or other legal evidence of title to land, to lift or float the same after entry, location, file or survey, when the same is not made upon land previously" appropriated.

But when a conflict of entries, files, locations or surveys occur, upon a proper showing of the facts, which may be by the certificate of one of his deputies, or from his own knowledge, he shall allow the party having his entry, file, location or survey of subsequent date, to lift so much thereof as shall bo affected by such conflict. “ Sec. 3.

Whenever an entry is made by virtue of a genuine certificate, upon any land which appears to be appropriated, deeded or patented, by the book of the proper surveyor’s office, or records of the county court or General Land Office, the party making such entry shall abide by the same, and in the event that judgment final shall be rendered against the right of the party making such entry to hold such land, he shall not have the right to lift or reenter said certificate.

But the same shall be forfeited, and so declared to be by the judgment of the court; provided, that nothing in this act shall be so construed as to affect entries or locations heretofore made.” The constitutional provision, Art. 7, § 24, which requires the “object of a law to be expressed in its title,” is imperative upon us to construe the object and effect of this act to be to designate the “manner of entering land certificates, and to prohibit the lifting and floating the same.” The two objects contemplated are definitely set forth, and although there were local customs of filing certificates in the manner pointed out by this act, yet these customs never had the sanction of law as far as we know, and it would not therefore be inconsistent with the caption of the act to say that the object of the Legislature was to enable a person' to point out the land to be surveyed in the surveyors office, as well as by actually going to and upon, and pointing out the land.

When the land law first went into effect, as the whole country was generally vacant and unappropriated land, the only practical 'way of designating the particular portion to be surveyed was by personally pointing out to the surveyor the land desired, since there were neither notorious or recorded objects by which the land could be designated. It is quite probable also at the present time, in the unsettled portions of the State, that the only practical and definite method of designating a tract of land by metes and bounds is by a visible pointing it out.

But what seems to place the question beyond doubt, that the act of 1856 is not intended to repeal the act of 1837, is the proviso in the first section, which declares “that nothing in this act shall be so construed as to prevent holders of certificates or scrip from having the same surveyed without entry.” This proviso not only does not repeal the

section 17, of the act of 1887 before referred to, but expressly recognizes it to be in full force. The further proviso, that the “survey shall not have a preference or give any right over a location or entry of the same land previously made in the proper office,” is nothing more or less than saying that either a survey, actually made, or a file in the distinct surveyor’s office, is a legal preliminary step towards acquiring title to the land, and that whoever shall be the first in taking either of these methods, has a superior right to the land surveyed or filed upon as the case may be.

The provisions of the second and third sections of the act confirm the opinion we have expressed relative to the first section. The second

section contemplates that there will necessarily arise cases like the one before the court; that different parties will make a file in the surveyor’s office, and have a survey without entry, and also makes provision relative to the duty of the county surveyor in such cases, viz.: that he shall ascertain, from the facts in the case, the party which is prior in time, and award to him the land. We therefore consider that the judge erred in not permitting the testimony to be given, showing which party was prior in point of time in the inception of his title to the land in controversy. Wherefore the judgment is reversed and cause remanded. Reversed and remanded.