Cassin v. O'Sullivan

Stayton, Associate Justice. — To entitle the appellant to the relief sought, it was incumbent on him to show that the land which [595] he sought to locate was unappropriated public domain on the 9th of December, 1882. The locations made on the same land December 11, 1881, by Brown, deprived the land of that character and withdrew it from location by another for the period of twelve months. McKinney v. Grassmeyer, 51 Tex., 381; R. S., 3902. The files of Brown were made in the proper manner, with a proper officer, and were supported by valid land certificates, which, with the applications for the land, were delivered to the proper officer to be kept in his official custody as the law required. These were filed by him; and if that officer failed to make the proper entries in his books to show the locations, this could not prejudice the right of Brown in a contest between him and a person who-had actual knowledge of his locations. The appellant is shown to have had such knowledge prior to the time at which he attempted to locate the land. Morris v. Byers, 14 Tex., 278; H. & T. C. R. R. Co. v. McGehee, 49 Tex., 486; Horton v. Pace, 9 Tex., 82. That the applications of Brown, and the land certificates on which they -were based, with other like papers properly in the custody of the surveyor, were kept in the safe of a merchant, because the county had not furnished a safe place to keep them, in no way affected the right of Brown as against the appellant, who had full knowledge of Brown’s locations. The locations which the appellant sought to make being before the expiration of the twelve months which Brown had within which to have the land surveyed, the surveyor correctly refused to receive them. The locations, if received under such circumstances, would have been void as to Brown’s location or relocation. McKinney v. Grassmeyer, 51 Tex., 382; Kimmell v. Wheeler, 22 Tex., 77. After twelve months from Brown’s original locations, no surveys of the land having been made, nor steps taken to compel surveys, the land again became subject to location by Brown or any other person. R. S., 3902. Brown relocated the same land under other certificates, but it does not appear that the appellant took any steps, after the land so became subject to appropriation, to locate it. His former action being» unlawful and void, he has no right whatever to the relief which he seeks. The charge of the court properly submitted the cause to the jury, and the judgment is affirmed. Affirmed. [Opinion delivered May 23, 1884.]