Executor and Heirs of William Cameron, Deceased, v. State of Texas, 95 Tex. 545

GAINES, Chief Justice. This suit was brought by the State of Texas to recover of Greer County, in the Territory of Oklahoma, and of the executor, devisees, and heirs of William Cameron, deceased, the four leagues of land which were patented to Greer County while that county was treated as a part of Texas. The executors, devisees, and heirs of Cameron answered asserting title to 10,476 acres of the land sued for, giving a specific description thereof, and disclaiming as to the remainder.

Greer County, Oklahoma, on the other hand, disclaimed as to all the land claimed by its codefendants, and claimed title to that portion thereof to which they filed a disclaimer. A severance was granted and the suit, as between the State and Cameron’s executor, devisees, and heirs, resulting in a judgment in its "favor. This judgment was affirmed by the Court of Civil Appeals. The case comes before us upon a writ of error sued out for the purpose of reversing that judgment.

We will state briefly the facts which gave rise to the controversy: Greer County, Oklahoma, is a body of land lying between the North fork and the South fork of Red River and, the 100th meridian of longitude. There was a dispute between the State and the United States as to which fork of the river was the true boundary of the State—the United States claiming the South fork and the State the North fork as such boundary. The controversy grew out of the construction of the treaty of 1819 between the United States and Spain.

If the South fork was the Red River proper, then the territory in question belonged to the United States. If the North fork was the river called for, then it was a part of Texas. The State, ever since its annexation to the United States, has claimed the territory in dispute, and the Legislature as early as 1860 asserted its authority over it by creating it a county, in the name of Greer County. It was continuously so recognized by that body until, in the year 1895, in a suit to determine the question of boundary, instituted in the Supreme Court of the United States, in pursuance of

an act of Congress, the disputed territory was adjudged to be a part of the United States, and not to belong to Texas. During all this time the State exercised all the sovereign powers of a State of the Union over the land in dispute—accorded to its inhabitants the rights of citizenship in the State and subjected them to all the burdens of the State government.

While it was treated as a part of the State, it was organized as a county; sent its representatives to the State Legislature, was incorporated in a congressional district of the State, was placed in a judicial district, and such courts were established and held therein as were authorized by the Constitution to be held in the several counties of the State. In short, for all intents and purposes, it was recognized, considered, and treated as an organized county of the State.

The status of the territory, as recognized by the lawmaking powers of the State, was acquiesced in by the United States until the act of Congress made provision for the settlement of the controversy as a judicial question, and this status continued until the suit was decided against the State and the territory thereby made fully subject to the sovereignty of the General Government.

In 1883 a law was passed by the Legislature which granted four leagues of land, for school purposes, to such of the counties of the State as had not secured a similar grant under previous laws; and it was made the duty of the Commissioner of the General Land Office to issue certificates therefor to be located upon any part of the public domain not otherwise appropriated. A certificate was issued to Greer County under this act and was located upon the lands in controversy in this suit. In pursuance of such location a patent was issued to the county.

Under 'the authority conferred upon the commissioners court of the county by the general laws of the State, the county sold, and on January 12, 1888, the county judge conveyed so much of the lands so located as is claimed by the plaintiffs in this suit, to Strain & Swinburne, who in turn, on the 17th day of the same month, sold and conveyed the same to William. Cameron.

How it is claimed in behalf of the State that since it was adjudicated' in the Supreme Court of the United States that the territory in controversy was never a part of Texas, it was never a county of Texas, and;,: that therefore no authority existed for issuing the certificate for the fourf leagues of land under the Act of 1883. It is clear that when the suit was determined against the State, Greer County ceased to be a county of the State of Texas, either de facto or de jure.

But from the fact that it was adjudged that the territory was not included within the boundaries of the State of Texas, and that it was never rightfully subjected to the political authority of the State and made a county thereof, it does not follow that the legislation of the State, in reference to the de facto county, and the acts of its officers in pursuance of the authority conferred by such legislation, are of no effect. In the case of Harold v.

Arrington, 64 Texas, 233, it was sought to restrain the collection of taxes assessed in the year 1882, upon certain horses and cattle then in Greer County, aiid among the grounds urged in support of the injunction was, that the county was not a part of the State. In disposing of the question, this court said: “Whether or not Greer County is a part of the State of Texas depends upon where the northern boundary line of our State, dividing it from the Indian Territory, should be located. This is a question to be settled by the political and not the judicial department of our State government.

It is judicially known to us that the political authority has always claimed the territory composing Greer County as part of the domain of our State, and has exercised acts of control over it; such as organizing it into a county and attaching it to another of our counties for judicial purposes, etc. We can not undertake to limit the jurisdiction thus recognized and asserted by the political department, and until that department, ceases to exercise such authority, we must treat this county as subject to-the jurisdiction of the State of Texas.” Citing Bedel v. Loomis, 11 N. H., 15; State v. Dunwell, 3 R.

I., 127; Guadalupe Co. v. Wilson Co., 58 Texas, 228; Foster v. Neilson, 2 Pet., 254; United States v. Arredondo,. 6 Pet., 691. We are of opinion that if the action of the Legislature in treating the-territory in question as part of the State was conclusive upon its courts-then, it is equally conclusive now; and that the legislative determination of boundary settles the matter for the courts whenever the controversy arises.

If after Greer County was organized it had applied to the Commissioner of the General Land Office for the certificates authorized by the Act of 1883, and if he had refused to issue them, or if after the lands had been surveyed and the certificates and the field notes returned to the-General Land Office he had refused to issue the patent, a suit had been brought to compel the performance of his duty, and he had urged as his-•only defense that Greer County was not a part of the State of Texas, the •answer of the court would have been as it was in Harrold v.

Arrington, supra, that the question-was one solely for the political department of the State government; that is to say, for the State Legislature, and that its determination was conclusive upon the courts of the State. Clearly "then, when the lands were located and surveyed for Greer County, and when the patents issued, it had the capacity to take, and we think it equally clear that having the capacity to take, it had, so long as the Legislature recognized it as a county of the State, the power to convey.

The courts, at the time the territory was treated as a county of the State, being bound by the action of the Legislature, it seems to us that the courts are in like manner bound now as to all transactions which have resulted as a consequence of that action. Unless it can be held that the plaintiffs in error are affected by a judgment to which neither they were parties nor William Cameron, under whom they claim, was a party, their rights are the same after that judgment'as they were before it was rendered.

The only use that the State in this action can make of the judgment in favor of the United States against it, is to offer such judgment as evidence to show that the territory known as Greer County never was a part of the domain of Texas. The objection to the evidence is that the Legislature of the State .determined that it was a county of the State, and that such determination precludes any inquiry into the matter by the courts.

The title of plaintiffs in error is not different from what it would have been had Greer County been indisputably a part of the State from its annexation until 1895, and had it at the latter date been ceded to the United States. The four leagues of land having been conveyed to Greer County in trust, for the benefit of the public schools within the county, as a county of the State, and the county having ceased to be a county of the State, whether its successor, Greer County in the Territory of Oklahoma, can hold such of the lands as are not conveyed, is a different question. It is not before, us in this case.

For the reasons given, we are of the opinion that the plaintiffs in error have title to the lands in controversy, and therefore the judgment of the District Court and that of the Court of Civil Appeals is reversed and ' . judgment is here rendered in their favor. Reversed and rendered.