Dallas herald. [volume] (Dallas, Tex.) 1849-1873, 1859-02-09
klMMELL, Admr.r NO. l4oo
Us rom Ellis.
WHEELER, et al.

w
The only question which il is mo'er'a to
consider is, whether the plaintiff S inieStaie was
entitled to appropriate the land in controversy
by his cetiicate, in May, 1886 wheh be made
his application TO the surveyor And we are
Of opinion, that he clearly was not.
The land had been reserved from location
hu the Act of the 2lsl of Dece'nb-r' ie'oS "ia
provide for the construction OF the Mississippi
ind Pacific Railroad" The l4th section o! ne
Act proyides-"thut oil the vacant and unap-
proprated public lands belonging 10 the STATE
of Texas" within certain defined limits, ncud-
inn the land in controversy, che and the SANE
is hereby held in reserve by the STATE, @;'
(SpeclI Laws 9th Leg,)
The only qualification annexed to this re-
serve. is 10 be found in the 18Th section OF the
Act which provides that it ''shall not be so
construed as to effect any right oil location, or
entry, pre-empion right or survey, heretofore
acquired in the district of country reserved
and Sc, apart for The use Of said road (Spe-
cial Laws 5th leg. ch, 5, p 7, Sec l1-l9)
Tie reservation created by This act, remain
ed in force until the lst day of January, 1881,
and consequently it was in foil force and effect
when the plaintiffs attempted appropriation OF
the land was made i'll May, 1896. claws 9th
Leg. ch. 1913, p. 56) The plainifl 'scaso does
not come within the provision of the 18Th sec
ton; and it results hat his location was contra
ry to law, and consequently void
The ground on which he mainly rests his
right to appropriate this land is, that the Act
creating this reservation is unconstltutlOna
and void, in so far as it effects his right The
land is within the limits of Peters Colony
various Acts were passed from time to time BY
I,be Legislature, to enable the coonists to Gc
ionire tile to land (llart. Dig. p. 6S2, laws
4th Leg. p. ~. Id. Extra Session p. 80, 5
lid, 57) That of the 10Th of February 1852
reserved the lands within the limits OF the
Colony for the benefit OF contractors and colo
nists, from general location, for the period
two wears aud six months from its date; thai
is, until the 10Th of August, 1854 Ii is con
tended IN effect, that by force of these Acts, al
the land in the Colony was reserved Tor th'
benefit of the plaintiff, shat he had the right tt
locate his certificate upon any part oil 1t; ant
the broad ground is assumed that until he fat
made his selection the Legislature had not tho
power to reserve and set apart any portion
il for a different purpose; that the reservation
was violation of the contract between hn
, and the State. If pretension so exiravagan
be thought TO require an answer, 1t will be ioun'
in the opinion Of the Court, in the case
the State VS. Delesdenier, q. Tex, 76) Th
nlaintiff had not vested right in any part
the nublic domain. He had no equitable TIL
n onv mart of 1t. His was kind OF tioaiin
eoui,y. which entitled him to appropriate ihre
hundred and twenty acres Of vacant and ur
5 approprated land, if he could lind so muc
within the Colony limits, unapproprIaied'
was what is called by Chief Justice Marshal
8 in Hoanage VS. Anderson, II Wheat 2lo') :
GENERAL m indefinite equity not applicable to on
tract Of land more than another" q sen
% ill, chris" which it would be idle to seek
a rnainfoin AGAINST an individual grant iron I'll
A Sto,e. much more against It's reservation
+. the land for its own purposes OF State polio
If cannot be doubted, that 1t was IN Inc pow
Of The LEGISLATURE TO repeal the laws on wh''
W H. rIo;n,iG"s right was dependent; and lea'
Us him without remedy. There Is as little 90"
If their mower TO make the reservation IN que
tion. But they did not take away h's rfneG
or ;mpair the obligation OF any contract
y tween him and the State, or deny HIN lhf
: erc;se Of any right which be had acquired,
n der the laws enacted for his benefit. lhe
~ lv riobt he had, was that Of approprlnting tor
e hundred and twenty acres out OF any land
MIGHT find vacant and unappropnated, wh
ne he same 10 make his seie, tioa. That night
e. ~as left free TO exercise, and the record she
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