Texas Mexican R'y Co. v. Locke

Watts, J. Com. App. This is a proceeding to compel appellee Locke, as district surveyor of the Bexar land district, to survey the lands described in the petition, and to return the field notes thereof to the general land office. While that is the principal object, the other appellees, who assert some kind of claim to the land, are incidentally brought into the case, so as to more certainly enable ap [627] pellant to accomplish the primal object of the proceeding. In such cases all persons who assert any claim to the land are proper parties, and should be required to appear and assert their claim, so as to enable the court to determine whether or not it is such as ought to preclude the complainant from securing the survey. That is, if it should appear that others assert a claim to the land, this would be sufficient to defeat the application, unless such parties are brought before the court so that their rights might be determined, or rather to enable the court to determine whether they have any such right to the land as would defeat the application and preclude the survey. Tabor v. Commissioners, 29 Tex., 516; Smith v. Power, 2 Tex., 57; Watkins v. Kirchain, 10 Tex., 375. As the principal object and purpose of the proceeding is to compel the surveyor to perform an official duty, the venue of the suit is to be determined by the county of his residence. While Zavalla county is in the Bexar land district, it is attached to the county of Frio for judicial purposes, and Frio county is not in the Bexar land district. Gen’l Laws 1881, p. 68; R. S., art. 3883. Mow, unless the suit would come within some one of the exceptions to the general rule, that the defendant must be sued in the county of his residence, it is certainly true that Locke, as the surveyor of the Bexar land district, could not be sued in Frio county to compel him to perform an official act in his district. And so far as Locke is concerned, it is very clear that the suit does not come within any of the exceptions to the general rule, and as to him, unless influenced by other considerations mentioned hereafter, it must be admitted that the suit was properly brought against him in the district court of Bexar county. However, the proposition is asserted, that, as to the other appellees, the effect of the suit is the trial of the title to land, and hence as to them the suit must be brought in the county where the land is situated. In the construction of the Eevised Statutes the primary rule embraces all of its provisions. Mone of them are subject to a strict construction. Whether general provisions or exceptions, all alike must be liberally construed with a view to effect the object sought, and to promote justice. Then let it be conceded that the result of this proceeding might affect the rights of the other appellees to the land. That is, while it cannot be considered a suit for the recovery of land or damages thereto, or to remove incumbrances upon the title, or to quiet the title, within the contemplation of clause 13 of article 1198, Eevised [628] Statutes, still the judgment rendered in this case might have the effect to conclude these appellees from again asserting the same right or interest against appellant; but that would result from an application of the doctrine of estoppel, and not because it is a suit for the recovery of land or damages thereto in contemplation of the statute. Such a construction as that contended for by the appellees cannot be maintained either upon reason or by authority. If it is true, then there is no court in which appellant can secure an adjudication upon its rights. And that would render the declaration in the Bill of Bights, that “ all courts shall be open, and every person for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law,” the merest bombast. What profit is it to appellant that “all courts are open,” if in none of these it can secure a remedy “ by due course of law?” Notwithstanding all the allegations in the petition may be literally true, that is, the land at the time of the location may have been unappropriated publio domain, and subject to appropriation by the certificates filed by appellant, and notwithstanding everything had been done which would entitle appellant to a survey, still this would not constitute such title as would sustain an independent action against the other appellees. To sustain such an action for the recovery of the land, both a location and survey are essential. R. S.art. 4795. Following up that construction, no suit could be maintained against Locke alone to compel him to make a survey, because it appears that the other appellees are asserting some kind of a claim to the land. Upon the one hand they cannot be made parties; upon the other, without making them parties there can be no adjudication. Surely such a result is not a sequence to the application of the primary rule of construction, for this would work a defeat of the object sought, and would promote the greatest injustice. Mandamus was originally a prerogative writ which issued from the king’s bench only to prevent a failure of justice, and where there was no other adequate legal remedy to enforce the performance of some duty in which the complainant was interested. With us, as originally, it is issued only to prevent a failure of justice, and when there is no other clear and adequate remedy to enforce the performance of the duty. There is nothing in the proposition so zealously urged by appellees in support of the judgment below, that appellant had an adequate legal remedy by an action for damages on Locke’s bond. It is a [629] sufficient answer to that proposition to remark that an action for damages on the official bond of the surveyor, while it might result in a moneyed judgment against Locke and his sureties, would not result in the enforcement of a performance of his official duty to make these surveys for appellant. True, it might deter him from a refusal hereafter to perform his official duties, but that would not secure to appellant the land to which it might be entitled by virtue of these locations. It is claimed that by reason of articles 3849 to 3853 of the Revised Statutes, the district surveyor is measurably relieved from doing field work in unorganized counties, and that while he may make surveys therein, the duty is not absolutely imposed by law. It certainly was not the intention of the legislature, in providing for the appointment of deputy surveyors in unorganized counties, to make them independent of and place them above the district surveyor. They are but aids to the district surveyor in the discharge of his official duties as such. His powers are not impaired nor his duties curtailed by the appointment of the deputy. While it is not necessary for us to determine whether or not such a proceeding could be maintained against one of these deputies, we have not the slightest doubt but that in a proper case it may be maintained against the district surveyor. . . If the land was in fact vacant, unappropriated public domain and subject to location at the time the file was made, then the district surveyor will not be heard to refuse a survey on the ground that it is doubtful whether he or his deputy should do the work. The law in such case clearly imposes the duty upon the district surveyor, either to make the survey himself or else to have it made by his deputy. In this respect they are considered inseparable,— the work of the deputy is the work of the surveyor; for it must receive his official sanction before it has validity. R. S., art. 3842. Formerly greater certainty in the allegations contained in the petition for a mandamus was required than in ordinary cases. And it is not necessary in this case to determine whether or not that rule of strictness in pleading has been in any manner modified by the provisions of the Revised Statutes. With respect to certainty in pleading in this character of suit the rule has been stated as follows: that the petition should state distinctly and precisely the circumstances so as to show that the party is entitled to this remedy; that the plaintiff has a clear right to, and that it is plainly the duty of the officer to perform the thing [630] demanded. Cullem v. Latimer, 4 Tex., 329; Arberry v. Beavers, 6 Tex., 457. In this case the allegations are quite as certain and specific as is required by the most stringent rule of pleading. It is alleged that the certificates were valid and belonged to appellant; that" the file was duly and legally made; and that the- land at the time of the file was “vacant, unappropriated public domain” and subject to location by virtue of the certificates; and that Locke was the district surveyor of the Bexar land district, in which the land was situated; and notwithstanding his fees had been tendered, he refused to make the survey. Admitting the truth of these allegations, then certainly there can be no room for doubt as to the right of appellant to have the surveys made, and the correlative duty of Locke to make them. While perhaps, in accordance with the practice elsewhere, the proceedings had below upon the filing of the petition were not in accordance with the usual practice here, under our system the better practice would seem to be to file a petition as in other cases, praying for process, and upon final hearing an order directing the officer to perform the act. Service upon this petition should be made in the same manner as in ordinary suits. Here, however, upon .the filing of the petition a rule was entered by the court requiring the officer to appear at the next term of the court and show cause why the mandamus should not issue. This was not an alternative writ of mandamus. It did not command the officer to make the surveys or else appear and show cause for failing to do so. But it was a simple rule requiring him to appear at the next term of the court and show cause why an order should not be made directing him to perform the duty. It was an informal mode of service, but Locke appeared in response thereto, and that is sufficient for the purposes of this case. Our conclusion is that the court erred in the several rulings sustaining the motion'of appellee Locke, and the exceptions of the other appellees, and in dismissing the petition. And we therefore recommend that the judgment be reversed and the cause be remanded. Eevebsed and bemanded. [Opinion adopted February 17, 1885.]