W. G. Raoul, Trustee, v. J. J. Terrell, Commissioner, 99 Tex. 157

GAMES, Chief Justice. This is a petition by the relator Raoul for a writ of mandamus to compel the Commissioner of the General Land Office to issue to him patents for eight sections of land in Pecos County, surveyed upon alternate certificates issued to the Texas-Mexican Railway Company. The lands in question having been leased by the State as lands belonging to the school fund the lessees were made parties defendant, but have not answered. The facts as disclosed by the petition and answer are as follows: On the 16th day of July, 1881, one J. S.

Daugherty being the holder as agent or owner of fifteen alternate certificates issued to the Texas Trunk Railway Company and calling in the aggregate for 19,200 acres of land filed the same with the surveyor of Pecos County with an application to locate them upon a solid body of tfye public domain containing about 35,000 acres. The entry was in gross and neither gave any specific description of any part of the land to be appropriated by either certificate or of what part was to be appropriated by the whole in the event it contained more land than was called for by the certificates.

On the 18th day of April, 1882, the eight certificates of the Texas-Mexican Railway Company were located in the same manner upon the same lands—excepting, however, “surveys made and to be made by virtue of Texas Trunk Ry. Co. certificates Mo. 311 and 325 filed within said boundary July 15, 1881.” Mo surveys were ever made under the location of the Texas Trunk Railway Company’s certificates, and, after the lapse of twelve months, the location was forfeited.

Subsequent to this forfeiture and before any surveys had been made by virtue of the Texas-Mexican Railway Company’s location, certain valid Confederate Veteran certificates were located upon the lands now in controversy and surveys were made and patents were issued therefor. These lands were, however, subsequently surveyed by virtue of the Texas-Mexican Railway Company’s certificates and the field notes and certificates in proper time returned to the General Land Office.

The relator, as trustee and successor to the rights of the Texas-Mexican Railway Company, afterwards tendered the fees for the issue of the final title' and demanded the patents; but the Commissioner refused a compliance with the demand. In view of the statute (Rev.

Stat., art. 4131) which prescribes that the application for a location of a land certificate, “shall particularly describe the claim to be surveyed and the land applied for” it would seem that the location of the Texas-Trunk certificates by describing a tract of land so largely in excess of the quantity subject to appropriation by them, was, to say the least of it, irregular. But, on the other hand, a strict compliance with the letter of the statute was in many cases impracticable.

Where a certificate was to be located upon a body of land largely in excess of the amount entitled to be appropriated by it, the applicant could not “particularly describe the land to be applied for” without a preliminary survey, which we think was not contemplated. Besides we are of the impression that locations of the character of that now under consideration were not unusual when the public domain was subject to be appropriated in that manner. Such was the original location in the case of the Jumbo Cattle Company v.

Bacon (79 Texas, 5), and the opinion in that case seems to recognize that location as legal, though the determination of that question was not necessary to a decision of that case. We are of the opinion, therefore, that the location for the Texas Trunk Railway Company’s certificates should not be held void.

It follows, we think, that the Texas-Mexican Railway Company had the right to file its certificates upon the same land subject to the prior location of the Texas-Trunk certificates as was done in this ease; and that when the first location became forfeited, it had the right to have surveys made by virtue of its certificates upon any part of the lands designated in its application. It could not have had its surveys made until the Texas Trunk Railway Company had designated the lands it intended to appropriate by surveys, which was never done.

We are of the opinion that the mandamus should be awarded and it is accordingly so ordered.