# Bacon v. Texas

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United States Supreme Court
163 U.S. 207
Bacon v. Texas
The state of Texas commenced this action against the defendants, Bacon, Graves, and Gibbs, in the district court of the county of Mitchell, in the state of Texas, for the purpose of recovering the possession of a large amount of land-nearly 300,000 acres-which it was alleged the defendants had unlawfully entered upon and dispossessed plaintiff from, and the possession of which they continued to withhold from plaintiff, the plaintiff being the owner in fee simple of such land at the time when the defendants dispossessed the state therefrom. Plaintiff also sought to recover damages for the use and occupation of such lands, and judgment was demanded for the possession of the land, and for damages, and for costs of the suit, and for general relief.
The answer of the defendants set up several grounds for specially excepting to the plaintiff's petition, upon all of which the defendant prayed the judgment of the court. Joined with the special exceptions, the defendants answered, and stated that, if the defendants' demurrer and special exceptions should be overruled, then they denied each and every allegation in plaintiff's petition contained. They then alleged that they were citizens of the state of Texas, and had been at the time of the passage of the act of July 14, 1879, and the act amendatory thereof passed on the 11th day of March, 1881, in relation to the sale of public lands belonging to the state of Texas; and they alleged that they had performed all the requirements spoken of and provided for in those acts for the purpose of purchasing a portion of the public lands of the state, and that by the performance of such conditions they had purchased the lands in question, and had duly tendered payment therefor to the proper officer, which had been refused, and that subsequently they had again tendered payment, and that the money had been received, but the plaintiff had refused to convey the title to the defendants as it was under legal obligations to do. They further alleged that having, in all respects, fully complied with the provisions of the law in respect to the purchase of the lands in question, their rights thereto became and were vested, and the act of the legislature subsequent thereto, passed January 22, 1883, to repeal the law under which the sales were made, was, under article 2, § 10, subd. 1, of the constitution of the United States, null and void, as affecting defendants' vested rights. They prayed for judgment that the plaintiff take nothing by its suit, and that the defendants have and recover from and of the plaintiff the lands as herein claimed by them, and for further relief.
The state filed its reply to the defendants' answer, and, after specially excepting to certain of the allegations of the answer as insufficient, it alleged that the defendants were not entitled or authorized to purchase the lands, and had not complied with the law in reference thereto in any particular, and that, if the defendants had tendered the treasurer of the state the money for the lands as alleged, the treasurer properly refused and declined to receive the same for that the defendants had not purchased the same from the plaintiff by complying fully with any existing law authorizing the purchase or sale thereof, and that if the defendants, or any of them, ever paid to the treasurer, in January, 1891, the sum of money in said answered stated, the treasurer was not authorized by law to receive it, and this defendants well knew, and that the payment was made after full and explicit notice to defendants that plaintiff repudiated and would vigorously contest the claim of the defendants to said lands, and the defendants paid the same at their peril. The court overruled the defendants' exceptions to the plaintiff's petition, and the case came on for trial.
The questions sought to be raised herein by the plaintiffs in error are stated by them to arise under the acts of the state of Texas above mentioned, the one known as chapter 52 of the laws of 1879, and entitled 'An act to provide for the sale of a portion of the unappropriated public lands of the state of Texas and the investment of the proceeds of such sale,' which act was approved July 14, 1879, and the other known as chapter 3 of the laws of the same state, passed in 1883, and entitled 'An act to withdraw the public lands of the state of Texas from sale,' approved January 22, 1883. The act of 1881, amending that of 1879, is immaterial to the questions herein arising.
Section 1 of the act of 1879 provides for the sale of all the vacant and unappropriated land of the state of Texas, in certain named counties thereof. Section 2 provided that any person, firm, or corporation desiring to purchase any of the unappropriated lands therein set apart and reserved for sale might do so by causing the tract or tracts which such person, firm, or corporation desired to purchase to be surveyed by he authorized public surveyor of the county or district in which said land was situated. By section 3 it was made the duty of the surveyor, to whom application was made by responsible parties, to survey the lands designated in the application within three months from the date thereof, and within 60 days after said survey to certify to, record, and map the field notes of said survey, and within said 60 days to return to and file the same in the general land office, as required by law in other cases. Section 5 provided that within 60 days after the return to and filing in the general land office of the surveyor's certificate, map, and field notes of the land desired to be purchased, it should be the right of the person, firm, or corporation who had had the same surveyed to pay or cause to be paid into the treasury of the state the purchase money therefor, at the rate of 50 cents per acre, and, upon the presentation to the commissioner of the general land office of the receipt of the state treasurer for such purchase money, the commissioner was bound to issue to said person, firm, or corporation a patent for the tract or tracts of land so surveyed and paid for.
By section 1, c. 3, of the Laws of 1883, it was enacted 'that all the public lands heretofore authorized to be sold under an act entitled 'An act to provide for the sale of the unappropriated public lands of the state of Texas and the investment of the proceeds of such sale,' approved July 14, 1879, be, and the same are hereby, withdrawn from sale.' The proviso contained in the section is immaterial. Prior to the adoption of the Revised Statutes of Texas, the manner in which surveys of the public domain were to be made had been provided for by law. It was provided that 'the courses of the line shall be determined by the magnetic needle, and care shall be taken to determine its variations from the pole in the district where the surveys are made. Each survey shall be made with great caution, with metallic chains made for the purpose, and care shall be taken that the place of beginning of the survey of each parcel of land be established with certainty, taking the bearing and distance of two permanent objects at least.' This was long prior to the year 1879. The Revised Statutes of Texas were passed in 1879, and took effect in September of that year, and by article 3908 it was provided: 'The field-notes of each survey shall state (1) the county or land district in which the land is situated; (2) the certificate or other authority under or by virtue of which it is made, giving a true description of same by numbers, date where and when isssued, name of original grantee and quantity; (3) the land by proper field-notes, with the necessary calls and connection for identification (observing the Spanish measurement for varas); (1) a diagram of the survey; (5) the variation at which the running was made; (6) it shall show the names of the chain-carriers; (7) it shall be dated and signed by the surveyor; (8) the correctness of the survey and that it was made according to law shall be certified to officially by the surveyor who made the same, and also that such survey was actually made in the field, and that the field-notes have been duly recorded, giving book and page; (9) when the survey has been made by a deputy the county or district surveyor shall certify officially that he has examined the field-notes, has found them correct, and that they are duly recorded, giving the book and page of the record.'
The case came on for trial in the district court of Mitchell county in November, 1891. The following among other facts were found by the court: On December 1, 1882, Bacon and Graves made application to the surveyor of the Palo Pinto land district, as such surveyor, to purchase the land in controversy under the above-mentioned act of 1879, as a mended March 11, 1881, which application was received and recorded by the surveyor on the first above-named date. Bacon and Graves paid the fees for filing the field notes in the general land office entirely within the time required by law. By the records of the land office, the lands in question appeared to have been surveyed at different times, and the field notes recorded in the surveyor's office in some instances, but not in all. The surveyor of the Palo Pinto land district certified to the respective surveys on the dates the surveys purport to have been made. None of the land included in this suit has ever been patented by the state under the Bacon and Graves purchase, and on the 26th of May, 1890, Bacon and Graves transferred, by deed of special warranty, 579 sections of land to C. C. Gibbs, who holds the same in trust for E. M. Bacon, E. G. Graves, and others.
It was further found, as a matter of fact, 'that none of the land in suit was actually surveyed upon the ground by the deputy surveyor who purported to have done so, but they merely copied in the office of the surveyor of the Palo Pinto land district the field notes of the Elgin survey.' That survey was made in July, 1873, for the Houston & Texas Central Railway Company; and the field notes of such survey were returned to the surveyor's office some time in 1873, and were filed in the general land office November 20 and 26, 1873. These field notes were 'adopted by the surveyor of the Palo Pinto land district, and his deputies, in making out the field notes of the land applied to be purchased by Bacon and Graves.' The land had been actually surveyed on the ground by Elgin in the manner in which it had been customary for surveyors in Texas to survey large bodies of land,-by running the outside boundary lines of the blocks, or parts of them, putting up permanent landmarks, and leaving the interior lines without running. These blocks, in writing up the field notes, were divided into 640-acre surveys, and the interior surveys were made without actually running the lines; and Elgin did not run all the lines of any section, unless, as he says, it was done by accident. It had been found by deputy surveyors, prior to the adoption of the field notes for Bacon and Graves, that the lines run and ascertained by the Elgin survey were as correct as any work of that character in that part of the state, and the deputy surveyors were statisfied as to their substantial accuracy. The deputy surveyors were deputies under Joel McKee from December, 1882, to March, 1883, and McKee was the surveyor of the Palo Pinto district, in which the land in question lay.
On May 16, 1883, the defendants tendered to the treasurer of the state $80,640, and on May 19, 1883, they tendered him the further sum of $104,640, in payment for these lands. These tenders were refused. In January, 1891, Bacon and Graves paid the treasurer $149,320 for said lands, which was received by him 'under protest.'
The court, as conclusions of law, found (1) that Bacon and Graves were not responsible parties, within the meaning of the statute, at the time they applied to purchase this land, and could not purchase under the law; (2) that they did not comply with the law, by having the lands surveyed as was required be law, and therefore could not purchase it; (3) the survey, as adopted, was not made in accordance with law,-is incorrect (totally so), in having a greater frontage on permanent water than is permitted under the acts of 1879 and 1881; (4) Bacon and Graves have never paid, or offered to pay, for said land, until long after the expiration of the time allowed and required by law. The purported surveys of many of the sections of land for which they tendered payment on May 19, 1883, were made after the 50-cent act was repealed, and Bacon and Graves did not separate, or offer to separate, in their tender, the surveys made before the repeal from those made after, and there was consequently no legal tender; (5) at the time Graves entered into an agreement with Bacon to purchase these lands, he was an employ e of the general land office, and his action was against the civil and criminal laws of the state; (6) that the state was not bound to return the money paid in January, 1891, to entitle it to judgment for the land.
Judgment for the recovery of the lands was duly entered, and the defendants appealed from that judgment to the supreme court of Texas, which court duly ordered the same to be transferred to the court of civil appeals for the Second judicial district, before which the case was heard on appeal. 21 S. W. 149. That court adopted the findings of fact filed by the court below, excepting it set aside the finding that the defendants were not responsible parties, and so could not purchase any land.
The court also gave an explanation as to the finding of the trial court that the money was received by the state treasurer 'under protest'; such explanation being that 'by the word 'protest,' as used in the finding, is meant that the treasurer of the state had several times refused to accept this money, and at the time he received it, in January, 1891, the parties paying fully understood that the state would contest their claim to the land, and the treasurer did not receive the money as a legal payment therefor.'
After argument the court of civil appeals, in all things, affirmed the judgment of the court below. The appellants duly asked for a rehearing for reasons assigned by them in their amended motion therefor. The motion was denied, and judgment duly entered affirming in all things the judgment against the defendants for the recovery of the lands in question. The defendants then presented a petition to the supreme court of the state of Texas for the allowance of a writ of error, to enable that court to review the judgment of the court of civil appeals. The appliction for this writ of error was refused by the supreme court, and an order refusing it was sent to the clerk of the court of civil appeals, pursuant to a rule of the supreme court.
The assignments of errors by the defendants on their appeal to the court of civil appeals contain an assignment of error in that they had acquired a vested right to the lands, by the survey thereof as made for them, under the act of 1879, prior to the repeal of that act by the repealing act of 1883, and which right could not be affected by such repeal. The court of civil appeals held that there was no contract between the parties, because of the failure of the defendants to have such surveys made as were called for under the act of 1879.
The assignment of errors filed on the allowance of the present writ of error contains, among other grounds of error, the failure of the court to hold that the act of the legislature of Texas approved January 22, 1883, was repugnant to the constitution of the United States, in that said act impaired the obligation or validity of the contr ct for the purchase of said lands between the state of Texas and said appellants, arising under, and created by, said acts of the legislature of Texas approved July 14, 1879, and March 11, 1881.
J. Hubley Ashton and Wm. M. Walton, for plaintiffs in error.
M. M. Crane, for defendant in error.
Mr. Justice PECKHAM, after stating the facts, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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