US SUPREME COURT DECISIONS

The statutes of the State of Texas of July 14, 1879, and March 11, 1881, providing for the sale of a portion of the vacant and unappropriated public lands of the state, did not operate to confer upon a person making application under them for a survey of part of said lands and paying the fees for filing and recording the same, a vested interest in such lands which could not be impaired by the subsequent withdrawal of them from sale under the provisions of the statute of January 22, 1883. chanrobles.com-red

Page 132 U. S. 35

The case was thus stated by the Court in its opinion:

This case comes from the Supreme Court of Texas, and arises upon the following frets:

By an act of that state passed on the 14th of July, 1879, the sale of a portion of its vacant and unappropriated public lands within certain counties and what was known as the Pacific Railway reservation was authorized. (Laws of 1879, Special Session, c. 52.) It provided that any person, firm, or corporation desirous of purchasing any of those lands might do so by having the same surveyed by the authorized public surveyor of the county or district in which the land was situated. And it was made the duty of the surveyor, upon the application of a responsible party designating the lands desired, to make the survey within three months from its date, and within sixty days thereafter to certify to, record, and map the field notes of the survey, and file them in the General Land Office. The act provided that within sixty days after the filing of these papers in the General Land Office, it should be the right of the person, firm or corporation at whose instance the lands had been surveyed to pay into the treasury of the state the purchase money therefor at the rate of fifty cents per acre, and that upon presentation to the General Land Office of the receipt of the state treasurer for this money, the Commissioner should issue to such person, firm or corporation a patent for the lands. And the act declared that after the survey of any of the public domain as thus authorized, it should not be lawful for any person to file or locate upon the land thus surveyed.

It was under these provisions, amended by an act passed March 11, 1881 (Laws of 1881, c. 33), which, however, did not materially affect them in the particulars under consideration, that the petitioner below, the appellant here, who was a responsible person, sought to purchase lands situated in El Paso County of the State, to the extent of one hundred and fifteen thousand acres, in tracts of six hundred and forty acres each. For that purpose, on the 16th of December, 1882, he applied to the surveyor of the county for the lands, which were fully described, and were of the character authorized to be sold chanrobles.com-red

Page 132 U. S. 36

under the acts in question within the Pacific Railway reservation. The surveyor received, filed, and recorded the application. The petitioner paid the fees for such filing and recording, and demanded that the land should be surveyed for him as required by law. No such survey was, however, made by the surveyor, and on the 22d of January, 1883, before the time expired within which he was allowed to make it, the legislature of the state withdrew from sale all the public lands mentioned in the acts in question. (Laws of 1883, c. 3.) After this withdrawal, the petitioner again applied to the surveyor for a survey of the lands, and tendered him the legal fees for making the survey, but the surveyor refused to make it on the ground that the Act of July 14, 1879, authorizing the sale, and the Amendatory Act of March 11, 1881, had been suspended by the Act passed January 22, 1883, and consequently that he had no authority to make the survey. The petitioner thereupon presented to the District Court of the County of El Paso a petition for a mandamus to compel the surveyor or his successor in office to make the survey and return the field notes of it to the General Land Office of Texas. The surveyor appeared in the suit and filed both an answer and a demurrer to the petition, a procedure permitted, as we understand, under the laws of that State. The demurrer was on the ground that the petition disclosed no cause of action. The answer was a general denial of the allegations of the petition. Upon the trial which followed, the court, sitting without the intervention of a jury, judgment was given in favor of the defendant. An appeal being taken, the case was heard by the Commissioners of Appeals. Upon their report, the judgment was affirmed by the Supreme Court. To review that judgment, the case is brought here on writ of error.

When the petition was filed in the district court of the state and its judgment rendered, Ward B. Marchand was the surveyor of El Paso County. Pending the appeal from the judgment, he died, and his successor in office, Samuel K. Wade, was by consent of parties substituted in his place as defendant. chanrobles.com-red

Page 132 U. S. 37