Edgar v. Galveston City Co.

Hemphill, C. J. This cause comes up by appeal from a judgment sustaining the demurrer of defendant, and dismissing the plaintiff’s petition. The grounds substantially of the plaintiff’s claim to the land, vizthe league and labor on the -east end of Galveston Island, are his removal to Texas in the — 328 — month of April, 1835, his selection, settlement and improvement of the land in the month of April, 1836, and his filing, on July 8th, 1839, his certificate of headright in the office of the County Surveyor of Galveston county, with his written application and direction to survey, by virtue of the certificate, this league and labor of land, including his improvements. The plaintiff alleges in substance that the defendant sets up. title to a league of the land under a grant to Juan N. Seguin, final title being extended in 1834, and conveyances from and under him, and to the whole of the land under an Act of the Congress of the Republic of Texas, approved 9th December, 1836, entitled an Act relinquishing one league and one labor of land to Michael B. Menard and others, on the east end of Galveston Island, and a patent issued under said Act to Menard, on the 25th January, 1838, and conveyances from and under him; which grant, Act of Congress and patent are charged by the plaintiff in substance to have been null and void from the beginning, and he also charges that the conditions contained in said Act of Congress were pre-requisites to the issue of the title, and have never been performed by the said Menard before or since the issue of the patent. And he also charges that he notified the persons who, about the 1st of February, 1837, surveyed the land for or on behalf of said Menard, of his rights and claims, he being then in possession, and has ever since continued to reside on the land, claiming it as his own. The main, if not the only question is, did the settlement of the plaintiff in April, 1836, and his improvements, vest such right in the land as was not impaired or diverted by the Act. of Congress in December, 1836, and the patent to Menard, in January, 1838. In the consideration of this question the-plaintiff cannot claim more than that the land should be regarded as vacant, and as open to settlement as other portions — 329 — of the public domain in April, 1836. Let it be admitted, for the sake of argument, that the land was vacant at that date, did the settlement and improvement by the plaintiff deprive the Government of the power to reserve the land from location, or to grant or sell it to another ? Settlement under the Laws of Colonization did not give an absolute right. The foreigner on his domiciliation was at liberty to specify or denounce any vacant land, and the same was granted to him as to a native of the country. (Art, 4, Decree 16, L. of. C. & T., p. 16.) In the distribution of lands, preference was first to be given to the military ; second, to Mexican citizens, between whom there was to be no other distinction than that founded on special merit or services to the country, or in equal circumstances a residence in the place where land was situated, (Art 10th, same Decree; National Colonization Law of August 18th,|1824.) From these provisions it appears that settlement gave no right, but only a preference where all other things were equal, thus vesting a wide discretion in the authorities either to grant to one occupant or another. The Laws of Colonization, with the right to obtain grants of land by survey or patent, by the Act of Consultation, closing the Land Offices on the 13th November, 1835, all officers and persons concerned in the location of lands, were ordered forthwith to desist from their operations, and further locations during the disturbed state of the country, and until the Land Offices could be re-systematized by the competent authorities, were inhibited. This act was sanctioned by the Constitution of the Republic, and all surveys and locations of land and titles made since the act, were declared null and void. The ground for this declaration was that most of the people were absent from home, serving in the campaign against Bexar during the time that these titles and surveys were made. Would not the reason extendió and qualify the provision in the Con — 330 — -stitution with reference to settlements, viz : that in all cases the actual settler and occupant of the soil shall be entitled in locating his land, to include his improvement in preference to all claims not acquired previous to his settlement, according to the Law of the land and of this Constitution ? The setting aside of surveys and titles would not avail much to the persons who were absent fighting the battles of the country, if in the mean time those who remained at home could secure the best lands, by camping upon them, or settlement. And it is urged with much plausibility and force, that the improvements referred to in the Constitution could embrace only such settlements as were made in conformity with law, and prior to the Act of the Consultation. But however that may be, it is clear that by subsequent provision of the Constitution, this right of preference to the actual settler, and all other rights to lands, their surveys and titles were retained within the control of Congress, or the political department of the Government. It was declared that the unsettled state of the country and the general welfare of the people demanded that the operations of the Land Office, and the whole land system should be suspended until persons serving in the army, could have a fair and equal chance with those remaining at home, to select and locate their lands, and that no survey or title thereafter made, should be valid, unless such survey or title should be authorized by the Convention or some future Congress of the Republic. This provision vests Congress with the power of prescribing the mode in which the right to lands shall be perfected into title ; .and in fact that no title shall be valid unless with the sanction of the Legislature. The framers of the Constitution did not give the military the preference secured to them under the former laws, but were determined that they should have a fair and equal chance with those remaining at home. Could this , be effected if, during those troublous times, a camper on public lands could claim them as his own ? Would persons serv — 331 — ing in the army have a fair and equal chance if, during the month of April, the time of darkest peril, when every citizen capable of bearing arms was required to repair to the standard of his country, a person could select by settlement a portion of the public lands for his own use ? The right reserved exclusively by Congress to authorize surveys and titles, and declaring that all titles not sanctioned by Congress should be invalid, vested Congress with the power to prescribe rules regulating the preference right, given to actual settlers under the Constitution, and accordingly in the 17th Section of the Act of December 14th. 1837, (Art. 1853,) it is declared that where more than one application is made for the same tract of land, the settler or occupant shall have the preference, if their claims be otherwise' equal; provided that no location or improvement made since the Declaration of Independence by persons who have since that time arrived in the country, should be regarded when they come in conflict with the claims of those who were here at the Declaration of Independence. But those individuals entitled to the six months preference, shall have the right of locating their land upon any vacant land of the Republic, without regard to any improvements made by individuals who have arrived in Texas since the Declaration of Independence. By the 39th Section, (Art. 1875) it was declared that for the first class of claimants, the Land OEce should be opened and remain six months in operation, granting and completing titles alone to that class of claimants. From these provisions it is manifest that as between individual claimants to land, the right of the oldest occupant or settler, their claims being otherwise equal, would be respected, but that no settlement made since the Declaration of Independence by persons arriving, should be respected if the land were claimed for location by a first class claimant, or one who was here at the Declaration of Independence. It is also manifest that peculiar and exclusive privilege of — 332 — selecting their lands were granted to the first class for six months, and if not exercised within the six months, ;if they neglected or failed within the prescribed time to secure their improvements, the preference was lost, and the land was open for general location. This was fully decided after mature consideration in the case of Patton v. Skidmore, (19 Texas, 533.) The first class had high privileges. They could disregard, and in fact have the benefit of improvements made by others since the Declaration of Independence, and they cannot complain, if from the letter and spirit of the law, their privileges be held to have ceased at the term of their limitation, and that if they did not locate upon their improvements within their time of preference, they could not claim the land against any other locator, or person who had acquired title from the Government either prior to or subsequent to the expiration of the six months. If there were no other objection to the claim of the plaintiff —if his settlement had been made before the Declaration of Independence, and was such an occupancy as was in the purview of the Constitution, yet he has forfeited all his preference right to the land, by neglecting to file his certificate and location within the first six months after the opening of the Land Offices. Had there been no previous title, he should have located within the six months, and title having been issued to Menard, he- should, within that time, have filed his certificate and application for survey, otherwise he could not have the shadow of a pretence to contest Menard’s title, by virtue of his claim to the preference right under his improvements. He did not file his certificate for location until seventeen months after the opening of the Land Office, and had then forfeited his claim to the land if any he ever had. The right of occupants to have the benefit of their improvements as against other individual claimants, could not deprive the Government of all power over the public domain, or the right to sell or grant the land to another, or reserve it from — 333 — location altogether ; especially was this the case with regard to improvements made since the Declaration of Independence, which were not properly within the scope and intent of the Constitution. The improvement did not give a right to land. Citizenship gave the right, and the beneficiary might claim the land on which he had settled or camped, or he might claim it elsewhere. The occupancy which gave a preference under the Constitution is not that fixed and absolute right to land which arises from a pre-emption settlement, which in itself is the moving cause of the grant to the identical land, and that alone whichis resided upon and cultivated by the settler. In the latter case settlement, and that alone, gives land ; in the former, the grantee has a floating right, which he may locate on his improvements or elsewhere at his pleasure. The Act of Congress relinquishing title to Menard, was passed during the suspension of the entire land system, it being within the power of Congress alone to again put the system into operation and no title or survey was to be valid unless authorized by Congress. Can it be imagined that Congress had not the power under such provisions of the Constitution to sell this land, or to reserve, as the Congress did the next day, 10th December, 1836, the whole of the Island from location ? that with the almost boundless profusion of land, the Government, though impoverished, could not reserve any portion for sale to supply the treasury ? And this because there may have been a straggling settler on some portion of the reservation. But it is not necessary to prolong this discussion. The right of the plaintiff to the land, if any he ever had, was lost by his neglect to file his application for survey within the proper time, and there was no error on this ground in sustaining the demurrer to his petition. But it is urged that though he be not entitled to the land, yet that he is entitled'to relief on his allegation that the defendant had, by fraudulent means, obtained possession of his certificate, and had the same surveyed and patented, which survey and patent he avers ought to be cancelled. — 334 — If the plaintiff had prayed damages for the conversion of his certificate, which he does not, or that the land embraced in the patent should be held in trust for him, or perhaps generally for its restoration to him, there would be ground for the suggestion that in this particular he might be entitled to relief, though it were denied him with reference to the land on the east end of Galveston Island. But it will be seen from his prayer that he does not seek any separate relief with regard to the certificate. The sole object, aim and end of the plaintiff is to perfect his supposed claim to the land in question into title. The possession of his certificate is deemed necessary to secure this object, and the matters alleged by him cannot be regarded as more than inducements to show why he was out of possession, and that he might recover the same again for the single purpose of securing his title to the land in controversy. He does not pray for any alternative relief. The petition has but one ultimate scope and object, and all its parts, allegations and prayers are made to conduce to that end and that alone. The certificate is sought only as an instrument to secure that object, and not for itself, or for its value, or uses, otherwise than as conducive to the main design ; and regarding this a controversy for the land claimed by the plaintiff, we are of opinion that there was no error in the judgment, and that the same be affirmed. Judgment affirmed.