Kimmell v. Wheeler

Wheeler, Ch. J. The only question which it is material to consider, is, whether the plaintiff’s intestate was entitled to ap [84] propriate the land in controversy, by his certificate, in May, 1856, when he made his application to the surveyor. And we are clearly of opinion that he was not. The land had been reserved from location by the Act of the 21st of December, 1853, “to provide for the construction of the Mississippi and Pacific Railroad.” The 14th section of the act provides “ that all the vacant and unappropriated public lands belonging to the State of Texas,” within certain defined limits, including the land in controversy, “ be and the same is hereby held in reserve by the State,” &c. (Special Laws, 5th Leg.) The only qualification annexed to this reserve, is to be found in the 19th section of the act, which provides that it, “shall not be so construed, as to affect any right of location or “entry, pre-emption right or survey, heretofore acquired in the “ district of country reserved and set apart for the use of said “road.” (Special Laws, 5th Leg. ch. 5, p. 7, sec. 14,19.) The reservation created by this act remained in force until the 1st day of January, 1857; and, consequently, it was in full force and effect when the plaintiff’s attempted appropriation of the land was made, in May, 1856. (Laws 6th Leg. ch. 128, p. 56.) The plaintiff’s case does not come within the provision of the 19th section; and it results, that his location was contrary to law, and consequently void. The ground on which he mainly rests his right to appropriate this land, is, that the act creating the reservation is unconstitutional and void, in so far as it affects his right. The land is within the limits of Peters’ colony; various acts were passed, from time to time, by the legislature, to enable the colonists to acquire a title to land. (Hart. Dig. p. 682; Laws 4th Leg. p. 72 ; Id. Extra Session, p. 30 ; 5 Id. p. 57.) The Act of 10th February, 1852, reserved the land within the limits of the colony, from general location, for the benefit of the contractors and colonists, for the period of two years and six months from its date; that is, until the 10th of August, 1854. It is contended, in effect, that by force of these acts, all the vacant land in the colony was reserved for the benefit of the plaintiff; that he had the right to locate his certificate upon [85] any part of it; and the broad ground is assumed, that until he had made his selection, the legislature had not the power to reserve and set apart any portion of it for a different purpose ; that the reservation w'as a violation of the contract between him and the State. If a pretension so extravagant be thought to require an answer, it will be found in the opinion of the court, in the case of The State v. Delesdenier ; 7 Tex. Rep. 76. The plaintiff had not a vested right in any part of the public domain. He had no equitable title to any part of it. His was a kind of floating equity, which entitled him to appropriate three hundred and twenty acres of vacant and unappropriated land, if he could find so much, unappropriated, within the colony limits. It was what is called by Chief Justice Marshall, in Hoofnagle v. Anderson, 7 Wheat. 212, “a general indefinite equity, not applicable to one tract of land more than another;” a scintilla juris, which it would be idle to seek to maintain against an individual grant from the State; much more, against its reservation of the land for its own purposes of State policy. It cannot bo doubted, that it was within the power of the legislature, to repeal the laws on which the plaintiff’s right was dependent, and leave him without remedy. There is as little doubt of their power to make the reservation in question. But they did not take away his remedy; or impair the obligation of any contract between him and the State ; or deny him the exercise of any right, which he had acquired under the laws enacted for his benefit. The only right he had, was that of appropriating three hundred and twenty acres, out of any land he might find vacant and unappropriated, when he came to make his selection. That right he was left free to exercise; and the record shows, that the quantity was ample, outside of the reserve. If his right of election was narrowed by the reservation, so is that of every holder of an unlocated certificate, by every appropriation of land by the certificate of another. Especially, was the right of election of the holders of head-right certificates, and other equally meritorious claims, which the holders were entitled to [86] have satisfied out of the vacant public domain of the State, narrowed by the reservation from general location, of the vast territory comprised within the limits of this colony, by the acts and contracts which created it, and again by the Act of the 10th of February, 1852. It would seem, that they had quite as much reason, as the appellant, to complain of a breach of contract on the part of the State. But the reservation of the territory by the Act of the 10th of February, for the benefit of the plaintiff, and others having like claims, expired on the 10th of August, 1854. The plaintiff, having failed to make his selection, had no priority of right over any other person entitled to appropriate vacant public land, and no more cause to complain of its withdrawal by the State from the general mass of land subject to location. He did not propose to make this selection, until after the expiration of the time assigned him. And it does not become necessary in this case to decide, whether the reservation of the land for colony purposes, by the Act of the 10th of February, gave the holders of colony certificates a right, until that reservation expired, to select their land in that part of the colony within the railroad reserve. If they had the right of location until the 10th of August, 1854, the plaintiff failed to exercise his privilege, until the period had elapsed. The land had then been withdrawn from the mass of vacant land out of which he was entitled to make his selection, and set apart by the State for another purpose; he could not, then, (in 1856) lawfully appropriate it by his certificate, and his location is consequently void. Our opinion of the invalidity of the plaintiff’s title, renders a revision of the rulings of the court upon the defendant’s points, unnecessary. The plaintiff having no right to be affected by these rulings, cannot complain of them. There is no error affecting any right of his; and as he is the only party who complains, the judgment must be affirmed. Judgment affirmed.