Sam'l G. Tomlinson v. Hopkins County, 57 Tex. 572

Bonner, Associate Justice. The material questions raised by the assignment and cross-assignment of errors are: First. Did the court err in cancelling the deed from Hopkins county to 'appellant Tomlinson? Second. If not, then what was the time measure of compensation? I. The court did not err in cancelling the deed.

The whole policy of the several acts, both of the republic and of the state of Texas, in granting lands for the establishment of a general system of education, was to make the land thus granted an available net fund for this purpose; and it was not intended that any part of it should be diverted to any other purpose, not even to the expense of locating and surveying it. Pasch. Dig., arts. 3464-3469; id., arts. 3473-3476, 3550.

The donations of lands to the several counties were coupled with the express provision that the counties should pay in money this expense of locating and surveying them, and so specific was this legislation, that not only the surveyor’s fees were fixed by statute, but a limitation was placed upon the amount to be paid both for the locating and surveying. This was doubtless done to prevent that being made a means or inducement for private speculation which was intended as a public benefit.

Accordingly it was provided, that, if the lands were surveyed within the county for whose particular benefit they were intended, the surveyor of the county or his deputy, as one of the duties of the office, should locate and survey the same for such fees as were allowed by the land law, to be paid out of the county treasury. Pasch. Dig., art. 3464.

It was further provided that-if there was not a sufficient quantity of good vacant land within the county, then it was made the duty of the county court to have the survey made upon other vacant lands, the expenses to be paid out of the county treasury, with the express proviso, however, “ that in no case the expenses of said surveying and locating shall be greater than at the rate of one hundred dollars per league.” Pasch. Dig., arts. 3465, 3474-6. These acts, so far as we are advised, at least in regard to the above provisions, have never been repealed.

These public legislative acts, and of which both the contracting parties are charged with notice, contained not only the express delegation of power conferred upon the county courts, but also the limitation upon this power. The contract for one-third of the land, as the price for locating the same, and the deed made in compliance therewith, were therefore without authority and null and void. II. What was the measure of compensation to which appellant Tomlinson was entitled ?

Being charged, alike with the county court, with a knowledge of the want of power to make such a contract, he cannot claim that any fraud or deception ivas practiced upon him, and hence this element cannot enter into the question. See elaborate note to the rule in Flureau v. Thornhill, 2 W. Bl., 1078, contained in 1 Sedgw. on Dam. (7th ed.), 406. We are of opinion that his compensation cannot exceed that limited by the statute.

And that he cannot, therefore, recover more than at the rate of $100 per league for the lands caused to be located and surveyed by him, and under the circumstances of this case, interest thereon at the rate of eight per centum per annum from the date the same were patented. As the county in this case seeks affirmative relief — the cancellation of its .own voluntary deed,— we do not think that the rule contended for by appellee applies, which requires certain claims against the county to be first allowed and approved before payment be made.

We are therefore of opinion that the judgment below should be reversed and here rendered in accordance with this opinion, and it is accordingly so ordered Reversed and rendered. [Opinion delivered November 14, 1882.]