New York and Texas Land Company, Limited, v. R. M. Thomson, 83 Tex. 169

GARRETT, Presiding Judge,

Section B.—There are but two controlling questions in this case: 1. Whether the calls for Devil’s River made in the original surveys of Kuechler should be extended so as to cross the river, or should yield to course and distance. 2. . Whether the constitutional bar against land certificates, when copies and unlocated balances have been issued, should run from the date of the Constitution, when they are in existence then, or from the date of the copies or unlocated balances.

If it should be ascertained that the calls for Devil’s River in the field notes of Kuechler’s original surveys should control, then the most of the land in controversy, which lies on the east side of the river, would apparently be covered by the original locations; and it is contended that although such locations might be illegal in having been surveyed across the river, yet the statute in such case is only directory, and appellant would be such equitable owner of the land as to render invalid the locations of Thomson; and that this would be so notwithstanding the fact that it had floated the original certificates and located them elsewhere, and covered the land with other certificates.

There is but one cause in the Revised Statutes (art. 3888) for which a certificate when once filed on land may be floated and located elsewhere, and that is when the location is in conflict with an older title, and .then only to the extent of such conflict. And it seems that when a valid' location is once made upon unappropriated public domain, any subsequent floating of the certificate would be illegal; and if the owner of a land certificate should survey vacant land by virtue of his certificate, such survey deprives him of the right afterward to float his certificate and locate it on other land. Adams v.

Railway, 70 Texas, 252. Kuechler intended to place the surveys on Devil’s River; but in his attempt to do so he evidently mistook the true course of the river, and was misled by a dry canyon and the general course of the river as he found it when he established the southwestern corner of survey Ho. 26 in block C of the surveys, and the northeast corner of Ho. 84 in block I. It is true that the remaining surveys were not run out upon the ground, but were platted in on his map. They were platted in, however, from initial points fixed and clearly defined upon the ground.

Kuechler may have intended to appropriate the land up to and across the river, but as he did not know where the river actually was, no random call therefor will control course and distance when there is a clearly defined starting point. It would be utterly at variance with all the rules upon the subject so to hold. These surveys must be run out as platted in accordance with the field notes, the calls for Devil’s River yielding to the calls for course and distance (Sanborn v. Gunter, 17 S. W.

Rep., 120, 121), and the attempt or intent to locate them upon the river would not be an equitable appropriation of the land. They are west of the portion of the land in controversy, across the river from it, and if run out in accordance with calls for course and distance would include no part thereof.

Of the remaining surveys affecting the land in controversy, some were floated from other locations and surveyed upon it; and some that embraced a portion of it were floated therefrom and located elsewhere; but only a small portion of the land in controversy across the river was originally covered by prior locations of the appellant. All of these surveys which had been floated were floated from locations actually astride of the river and made in violation of the law, which forbade it, and were consequently illegal.

It was impracticable to correct the field notes so as to comply with the law, and yielding to the directions of the Commissioner of the General Land Office, appellant’s agent (George W. Angle) floated them and relocated the certified copies.

It is probable that in strict compliance with the law these surveys would be held to be forfeited and the certificates by virtue of which they were made of no further validity; but the attempted' location was at any rate in violation of the law, and was not of sufficient validity to create any equitable title to the land in the appellant. ¡Nor was there any such appropriation of the land by the appellant that its possession thereof would protect the land from subsequent location by virtue of a valid certificate. Const. 1876, art. 14, sec. 2.

Thomson’s locations were made to cover these abandoned surveys and the land east of the river which had not been originally surveyed for the appellant. At the time of Thomson’s locations, however, the appellant had already surveyed all of the land by virtue of certified copies and unlocated balances of certificates which had been formerly floated or in

part located.

As we are of the opinion, in the first place, that the land on the opposite side of the river from the original surveys between survey ¡No. 84, block I, and ¡No. 26, block C, was not included by them, and in the second place, that the original locations upon portions of the land in controversy were illegal because they were placed astride of the river, and the certificates having been floated the surveys were abandoned, it then becomes necessary to consider the question of limitations, which will affect the entire land in controversy, except four surveys by virtue of unlocated balances, the field notes of which were returned before April 18,1881, and as to these the appellee did not recover.

That part of

section 2,

article 14, of the Constitution of 1876 which it becomes necessary for us to consider is as follows: “All unsatisfied genuine land certificates barred by

section 4,

article 10, of the Constitution of 1869, by reason of the holders or owners thereof failing to have them surveyed and returned to the Land Office by the 1st day of January, 1875, are hereby revived.

All unsatisfied genuine land certificates now in existence shall be surveyed and returned to the General Land Office within five years after the adoption of this Constitution, or be forever barred; and all genuine land certificates hereafter issued by the State shall be surveyed and returned to the General Land Office within five years after issuance, or be forever barred.” It was evidently the purpose of the Constitutional Convention to require all land certificates to be located within five years or forfeited.

The policy was adopted by the Convention of 1869, and the construction placed by the Convention of 1875 on the clause of the Constitution of 1869 shows that all certificates then unlocated were deemed to be of no further validity, and they were in terms given new life. A land certificate is merely the obligation of the government entitling the owner of it to secure the designated quantity of land by following the requirements of the law. Cox v. Bray, 28 Texas, 261. One requirement of the law is, that the field notes shall be returned with the certificate to the Land Office within twelve months after the survey.

If this is not done the location is void, and a subsequent locator may appropriate the land. These requirements are not for the benefit of the State, but any person may avail himself of the failure on the part of the owner of the land certificate and location to comply therewith.

If the owner of a certificate should file upon land and cause the same to be surveyed, but should fail to have his field notes and the certificate returned to the Land Office before the expiration of the five years, it will require no action on the part of the State to forfeit the location, but it would be the duty of the Commissioner of the General Land Office to refuse to take any step looking to a patent. The survey would become void, with nothing to support it, and any one might show its nullity in any proceeding.

A certified copy of a certificate is mere evidence of the existence and contents of the original, and an unlocated balance certificate is only the certificate of the Commissioner of the General Land Office that there remains unlocated of the original certificate a certain number of acres which the owner may still locate. The Commissioner of the General Land Office is an executive officer of the State, and has no authority to bind the State by renewing its obligations; and there is no law which authorizes him so to do.

The law in proper cases authorizes the issuance of certified copies of certificates and certificates of unlocated balances, but only as evidence of the original certificate, or what remains thereof unlocated. It will not be contended that it was the purpose of the law in authorizing the issuance of such copies and unlocated balances to give new evidence of the right of the owner of the certificate, for such was not the case.

Whenever an original land certificate has been surveyed and returned to the Land Office it is kept there in order to prevent frauds, and such was the purpose of the law requiring it to be done. It can not be withdrawn under any circumstances, and if it should become necessary to relocate it by reason of conflict in good faith with older surveys, the relocation is made by virtue of a certified copy, the use of the original being waived, because it is better to keep it in the Land Office.

Formerly it was the custom, it is said, whenever a part of a certificate was located, for the Land Commissioner to indorse a memorandum on the certificate showing how much had been located, and to deliver it back to the owner for location of the balance. In 1854 a law was passed correcting this also, and requiring the Land Commissioner to retain the certificate and give his certificate showing how much of the original was unlocated. Opinion Hon. J. H. McLeary, Attorney-General, May 31, 1881.

Thus we see it has been the steady purpose of the State to set a limitation to the time within which land certificates should be surveyed and returned to the Land Office, and to hedge them about with safeguards and restrictions to prevent the perpetration of frauds; and the certified papers given out by the Commissioner of the Land Office with respect thereto were never intended to be and could not be a novation of the obligation of the State to grant land.

We think that the certified copies and unlocated balance certificates were only evidence of what they purported to be, and did not give new life to the original certificates. That the certificates under which the locations were made by the appellant were issued by the State for a valuable consideration, having been granted to the International & Great Northern Railway Company by

an act of the Legislature in settlement of the claim of said company against the State for bonds, can not make any difference, for the State had the right to fix a time of limitation to all certificates. Adopted December 15, 1891. This suit having been brought before the expiration of five years from the date of Thomson’s certificates by virtue of which he has filed on the land in controversy, the constitutional bar does not apply to them. Booth v. Strippleman, 61 Texas, 381, 382.

It was the duty of the appellant to see that the lands which it sought to locate were properly surveyed by Kuechler; and although the latter was a public officer—a deputy district surveyor—still the appellant was bound to see that the surveys were made upon the land which it desired to appropriate, and the failure of Kuechler to do his duty in this respect would be no excuse for the appellant. The remaining assignments of error present no material question not already disposed of, and it is not necessary to notice them.

We find no error in the judgment of the court below, and think that it should be affirmed, and so report. Affirmed. A motion for rehearing was transferred to Galveston, and there overruled.