Frederick v. Hamilton

Ogden, J. These two cases are actions commenced in the District Court by the appellee against different parties for alleged trespasses on different portions of a certain league of land; to both of which suits A. C. Horton, as the vendor or landlord of each, made himself a party defendant, and set up a claim in himself to the entire league, and thereafter Horton is recognized as the defendant in both causes. The prosecution and defense are the same in both, and the pleadings and evidence are so nearly identical that the decision of one must settle the other. We have therefore deemed it proper to consider both cases .together. There is, however, an assigned error in cause 215, which may be disposed of before considering the merits of either. It appears, from the exceptions taken, that on the trial of that case the jury found a verdict for the plaintiff, and at the suggestion of counsel, they were instructed by the court to amend their verdict by adding “the land described in plaintiff’s petition.” This was an action for a specifically described tract of land, and the jury by their verdict evidently intended to give the plaintiff that land, — 337 — and their omission to say so may be considered as a clerical omission, and as such it was very properly corrected under the direction of the court. (McKeen v. Paschal, 15 Texas, 37.) We can see no valid objection to a similar amendment in the presiding judge’s charge to the jury, provided the same is done in the presence of the jury and without any imputation of an improper motive. The law has prescribed no precise form for making locations of the public lands of the State, and he who held a genuine certificate or other valid claim for a portion of the public domain might locate or file the same, at his pleasure, on any lands unappropriated, and which are not reserved from location. But in order to separate any specific tract of land from the balance of the public domain, there must be a location “ sufficiently specific to identify the land which it is intended to appropriate” (Hollingsworth v. Holshousen, 17 Texas, 44), and must be made in such a manner as to notify the public of the appropriation. .In 1856 an act was passed prescribing, to some extent, the manner of making and the necessary requisites in order to constitute a valid and legal location. Previous to that time the whole matter was in a great measure controlled by instructions issued by the Commissioner of the General Land Office. In 1838 instructions to the different surveyors of the State were issued, directing how and by whom surveys should be made, and the manner of making locations, and how the evidence of locations should be preserved and made public. These instructions were similar to the act subsequently passed by the Legislature, and were equally binding upon the surveyors and persons for whom surveys were made. The location of the league now in controversy was made by A. C. Horton in 1838; and though the surveyor failed — 338 — to make a record entry in a book kept for that purpose, as required Jby the instructions from' the General Land Office, yet he endorsed on the certificate the location and a reference to the land located. We are of the opinion that the endorsement then made, if sufficiently specific to point out the land located, was an appropriation of the land to the owner of the certificate, provided the same was previously a part of the public domain. But as that endorsement upon the Horton certificate was the only record evidence of the appropriation, and as the locator was required to file his certificate in the surveyor’s office as a further' evidence of the location, it would necessarily follow that when that certificate was withdrawn from the office there remained no evidence of the appropriation, or that the holder of the certificate still claimed the land; and a stranger would have the right to suppose that there had never been a location, or if one had been made, then that the same had been withdrawn or abandoned. Horton located his certificate in 1838, but within a few weeks of the location withdrew his certificate, and all evidence of the location, from the surveyor’s office, and kept the same out for over ten years, and until the land had been re-located by another party, and for this reason it might properly have been presumed that the file by Horton " had been abandoned. (Willie v. Wynne, 26 Texas, 44; Booth v. Upshur, 26 Texas, 73.) It is, however, claimed for appellants that Horton, in 1846, and before any other location was made, took possession of the land by his tenants, and was holding the same at the time of the Rowe location, and continued so to hold the same until the institution of this suit, and that this fact was sufficient to give notice to all persons that Horton claimed the land, and also that this notice would supply any defects there might be in the records of the surveyor’s office. ' . — 339 — But it must be borne in mind that the possession of one person in itself is no evidence of the right or claim of another ; and there is no evidence to bring home to Bowe or Ms surveyor the knowledge that the settlers upon the land, at the time of Bowe’s location, were the tenants or vendee’s of Horton; nor that Horton claimed the possession through these settlers, as there was no record evidence in the proper office that Horton claimed the land. Besides, it was a notorious fact that the land had once been surveyed and patented to one Henry Brown; and it would have been quite natural to suppose that the settlers on the land at the time of the Bowe location were tenants or vendees of Brown., But the Brown title, at the time of the Bowe location, had just been declared by the Supreme Court to be null and void. It is true that the suit against Brown had been instituted and prosecuted by Horton; and had he left in the surveyor’s office any evidence that he intended to claim the land included within the Brown survey, he might then have protected his location. But the fact that he was prosecuting a suit in the District and Supreme Courts to have Brown’s patent canceled, could hardly be considered as evidence of his location; nor that he had not abandoned his location, since he had withdrawn his certificate and all evidence of a location from the surveyor’s office, and kept them out for many years. If it were admitted, that after a complete and specific location, the pendency of a suit in the District and Supreme Courts, wherein the locator claimed the right to appropriate the land so located, would be a sufficient notice to the public of that claim, yet it might be gravely questioned whether Horton had so perfected his location as to entitle him to the benefits of that notice. His location consisted entirely in an endorsement upon Ms certificate by the surveyor, “Located one league of land on — 340 — the San Antonio road, Guadalupe river, east side, on league one, this February 19, 1838;” and the suit in the Bastrop District Court was instituted for this identical league of land; yet in neither of the suits now at bar does he or his representatives claim league number one as deeded or patented to Henry Brown, as the plot and field notes of the Brown league, and the one now claimed by appellants, most clearly show. This fact might be considered as additional proof that Horton, at the time he withdrew his certificate from the surveyor’s office, abandoned the location he had made on the nineteenth of February, 1838, and that the present claim was wholly the result of an after-consideration; and therefore the suit pending against Brown could hardly be considered as notice of the present"claim. Again, if we consider the endorsement made on the certificate the only location made by Horton, then we must also come to the conclusion that he failed to perfect his location by having his field notes properly certified to the General Land Office, as applied to his location, and by having them returned to the president of the Board of Land Commissioners, as required by the act of December, 1837. Indeed, we think the pleadings and evidence in both causes show most conclusively that Horton, after the ■endorsement on the certificate, when the same was filed with the surveyor, changed his mind as to the form of his location and the field notes to control the same; as the plat and field notes which were, soon after the filing of the certificate, sent up to the General Land Office are quite different from the plat and field notes of the Brown survey. It was the Brown survey and the Brown field notes alone which Horton had a right to claim by virtue of the endorsement on and filing of his certificate, and when he ■changed his field notes, and the form of the land he wished to appropriate, then he could no longer legally — 341 — claim any benefit or right under that prior survey, nor the endorsement on the certificate, as that endorsement appropriated league number one, and nothing more. He would be required to make a new file or location, to have the land surveyed and certified under oath by the surveyor, in the same manner and form as required for the location of any other portion of the public domain. If this be a correct view of the legal rights of the parties, then appellants can have no claim to the land in controversy which the courts can recognize, as no location was made by Horton, excepting on the Brown league, and now appellants claim a different tract of land, or rather a tract bounded by different field notes which were never made by actual survey. That Horton could have adopted the location, survey and field notes of the Brown league, repeated decisions of this court have settled beyond controversy. But we think it also well settled that when a locator adopts an old location and field notes, they must be applied to the new" location by the surveyor, and certified to the General Land Office in the same manner as a new survey. Sims, who was the surveyor for the Bastrop land district, and who made the'location for Horton, testifies that he made no actual survey for Horton, and yet his plat and field notes sent up to the Land Office show an entirely different survey from that made for Brown. It would appear that Horton fully appreciated the necessity of having an actual survey made, as he brought suit against Pace, the district surveyor, to compel him to survey the land as designated by the plat made by Sims. In that case the court refused the compulsory process against the surveyor, because of the illegal form of the survey required; and there appears to have been no further efforts on the part of Horton to perfect his title or to appropriate the land until the bringing of this suit. — 342 — We think it clear that Horton, in order to appropriate the land as claimed, or to perfect his location into a title, should have had his land surveyed and the field notes returned to the General Land Office, as required for other locations, and his neglect or failure to do so has caused him to lose any right he may have acquired under his location. Hor can the suit against Pace, or its termination, be pleaded as an excuse for not having the land surveyed and the field notes returned to the General Land Office, for he should have known that the form of his location was objectionable under the statute, and that the courts would not lend their assistance in the violation of the law. (Horton v. Pace, 9 Texas, 81.) The act of the tenth of February, 1852, provided that “All lands heretofore located by virtue of any genuine claim to land shall be surveyed within twelve months from the passage of this act, or the location shall become null and void, and the lands subject to re-location and survey, as other vacant and unappropriated land.” The same act provides that the field notes of all surveys shall be returned to the General Land Office within the same time. We are of the opinion that the location of apellant comes strictly within the object and purview of the act cited, and that Horton was bound by that act to have his survey and field notes returned to the General Land Office within the time prescribed, or lose the benefit of his location. He has failed to make any return as required, and the appellee, or his vendor, having made the location on the same land, and having complied with the statute, has received a patent for the land, and we are unable to discover any legal grounds for depriving him of the fruits of his industry and diligence. (Upshur v. Pace, 15 Texas, 531; Patrick v. Nance, 26 Texas, 297; Crow v. Reed, 25 Texas Sup., 392.) — 343 — We are also of the opinion that the claim of title, by three years’ possession, cannot avail the appellant, since, if he has no title, his possession for three or five years could hardly avail him. And besides he has proven possession of but a small and distinct portion of the league, and that portion may, or may not, be on that portion appropriated by the patent of appellee. For the reasons herein given, and for the further reason that the judgment in the case of Horton v. Brown et al., from Bastrop county, had never been recorded in the county where the land is situated, we think the court did not err in sustaining the objection to the introduction in evidence of the record in that case. That case was taken to the Supreme Court with irregularity at least, and the fact that no efforts were made to enforce the same against the Commissioner of the General Land Office shows pretty conclusively that no confidence was placed in the validity of that judgment against the Commissioner. From the view of the law of these cases, as here taken, it is clear that Horton, at the time of the location by Rowe, had no valid location upon the land in controversy, which would authorize him to contest the location and patent of Rowe and his assignee. It is further clear that if, at the time of the location by Rowe, Horton’s location was good and subsisting, yet his failure to have his land surveyed, and the field notes returned to the General Land Office, as provided by the act of February, 1852, has caused him to lose any right he may have acquired under his original location. We think it also clear that the claim of appellants, as set up in these cases, is in direct conflict with the positive declarations of Article 10, Section 2, of our present Constitution, which declares, “that all surveys of land heretofore made and not returned to the General Land Office; in accordance with the act of 1852, shall be null and void.” — 344 — The location, as now claimed by the appellants, was never surveyed, nor were the field notes ever returned to the Land Office as required by law,, and the same must now be considered null and void; and therefore the rulings of the District Court, on the introduction in evidence of the record, in the case of Horton v. Pace and Hamilton, or the documents referred to in Campbell’s depositions, become wholly immaterial, as they in no way could affect the invalidity of that location. And the judgments in both cases are therefore affirmed. Affirmed.