B. F. Duren et al. v. The Houston & Texas Central Railway Company, 86 Tex. 287

GAINES, Associate Justice. This case comes to us for the determination of certain questions certified by the Court of Civil Appeals of the Second Supreme Judicial District. 1. The first matter certified is resolved into three different questions. We answer, first, that the court should take judicial knowledge of the fact that in 1854 all the unappropriated public domain in Van Zandt County was reserved from location by virtue of the Act of December 21, 1853, entitled “An act to provide for the construction of the Mississippi & Pacific Railroad.” Spec. Laws 1853-54, p. 7; Woods v. Durrett, 28 Texas, 430; Wright v.

Hawkins, 28 Texas, 452. We are also of opinion that a location upon land in the reserve would not affect the validity of the certificate. It could be withdrawn and located upon any other land subject to be appropriated by such certificate.

Section 3 of the Act of August 30, 1856, is not applicable to the location in question. It was made in 1854, and that act expressly provided that nothing therein contained should be so construed as to affect locations theretofore made. Pasch. Dig., art. 4575. Previous to the passage of this act, it had been the custom to “ lift” certificates and to relocate them at will. One of its purposes was to prevent the 1 ‘ lifting or floating ’ ’ of certificates which should thereafter £>e located upon land subject to entry by such certificates.

Another was to discourage the litigation incident to filing upon lands previously appropriated by other persons. The act shows that in the opinion of the Legislature it was lawful at the time of its passage to withdraw a certificate from a location previously made, and to locate it upon other land; and upon principle we see no reason why a certificate located upon land reserved from appropriation by legislative act could not be taken from the file and applied to other land subject to location.

The location upon land not subject to be located by it being contrary to law and void, should not affect any right, in the absence of a statute declaring such effect. 2. Upon the case submitted in the second paragraph of the certificate, we are of opinion that the location of the Smith certificate should prevail. The location of the certificates under which appellees claim having been made by a surveyor who had no power to accept a file or make a survey, was wholly without authority of law and therefore of no effect whatever. As between the locators and the State, the locations were subject to be validated by

an act of the Legislature, but not as against any right of a third party lawfully acquired by appropriation before the passage of the act. Howard v. Perry, 7 Texas, 259. Therefore the question of title depends upon the question of the validity of the location and survey of the land in controversy made by virtue of the Smith certificate in 1874. It seems that the survey and field notes were made by an agent of the locators, and were approved and adopted by the lawful surveyor. This is certainly a practice not to be commended, and one which it would seem the Legislature did not contemplate.

Therefore, if the question were an open one, we might have difficulty in reaching the conclusion that a survey made by a locator for his own benefit could be adopted by the surveyor so as to give it any validity. But it was held in Howard v. Perry, supra, that this could be done. It is true that in that case the locator was himself the deputy surveyor; but the court seem to attach no importance to that fact. In the opinion they say: “ But it is objected to the defendant’s survey that it was made by and for himself.

It is, however, approved by the district surveyor, and thereby became, in contemplation of law, his act.” And we apprehend that the deputy had no authority to make a survey for himself, and that validity of the .survey depended wholly upon the approval of the district surveyor. Such is our construction of the opinion, and it is decisive of the point before us. Whatever our own views may be upon the question as an original one, it has been too long recognized as a rule of property in every department of the State Government to be now overturned.

We further hold, in response to the second question in the second paragraph of the certificate, that the plea of stale demand can not avail the defendants in the suit. Our statutes gives a party claiming land under a valid certificate, location, and survey, the right to maintain an action at law for its recovery by proof of .such title. Rev. Stats., art. 4745. This is a clear legal right, to which the plea of stale demand can not be interposed. Although the legal title remains in the State, it does not require the aid of the equitable powers of the court to enforce it. 3.

Where one party appeals, the other may file cross-assignments of error and procure a reversal of the judgment in his favor, provided he shows error to his prejudice. Caperton v. Wanslow. 18 Texas, 125; Carroll v. Carroll, 20 Texas, 731; Railway v. Prather, 75 Texas, 53. The report of the case last cited does not fully disclose its history, but we have examined the record and find that the defendants below excepted to the judgment and gave notice of appeal, and filed an appeal bond and assignments of error.

The plaintiffs excepted to the judgment, and failed either to give notice of appeal or to file bond, but they assigned errors. The appellants having failed to file a brief, their assignments were disregarded. The case was considered on the cross-assignments, and the judgment was reversed in favor of the appellees. Delivered December 21, 1893. This opinion will be certified for the guidance of the Court of Civil Appeals.