McKinney v. Grassmeyer

Gould, Associate Justice. By the file or location of Grassmeyer, the land ivas severed from the public domain [382] for twelve months from that date, and during that period was appropriated by him so as not to be subject to another location. In Wyllie v. Wynne, 26 Tex., 45, it is said : “ It was the practice of the country to a considerable extent, and one which was recognized by the courts, to hold lands by files merely, without actual survey. And we believe that this practice was in conformity with law.” After the enactment of the statute requiring a survey within twelve months from the date of location, the file or location without actual survey was still valid to appropriate and hold the land during the twelve mouths. If followed by a proper survey, a file or location has been one of the modes of appropriating the public domain, both before and since the act of August 30, 1856. (Paschal’s Dig., art. 4573, et seq.; Lewis v. Durst, 10 Tex., 398; Wyllie v. Wynne, 26 Tex., 45; Hollingsworth v. Holshousen, 17 Tex., 43; Ward v. Conner, 33 Tex., 569; Houston and Texas Central Railroad Co. v. McGehee, 49 Tex., 490.) Our response to the first of the agreed points of law is, that the location of McKinney, made within twelve months of the file of Grassmeyer, whether void absolutely and for all purposes or not, was void as against Grassmeyer’s location and relocation. The attempt to anticipate a forfeiture by locating on a file or survey still valid, can confer uo right or equity as against the claimants under that file or survey. The case of Upshur v. Pace, 15 Tex., 531, was one which turned upon “priority of location” under a similar state of facts, and the decision made necessarily involved the principle just stated. (Johns v. Pace, 26 Tex., 270; Johnson v. Eldridge, 49 Tex., 521.) The case of Booth v. Upshur, 26 Tex., 64, cited by counsel, turned apparently on other questions, and it does not appear that this question, if involved in the case, was either made or considered. A valid location should operate to prevent others from locating thereon, and it is believed would practically cease to have that effect unless the principle laid down be enforced. [383] To the second point, we respond, that the correction of the field-notes under McKinney’s location was not a valid appropriation of the land as against Grassmeyer’s subsequent relocation. The correction of field-notes did not require that the surveyor be presented the certificate or land claim, as in case of a relocation or of an original survey without entry. (Paschal’s Dig., arts. 4564-4573.) The correction without the certificate or land claim could be equivalent to neither a relocation, an original survey, nor to a valid appropriation of a former survey. The points are decisive of the case. The judgment is affirmed. Affirmed.