Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-02-23
COURT OF APPEALS.
Fun Text OF Decisions Rendered IN che
Fort worth DISTRICT.

w. J.. HUFF clerk
No 9S. r. J.. Marsals and II. ]. Sans,
appellants, Va. j. A. Creager ct al,
appellees. Appeal from Wilborger
county.
CONCLUSIONS OF FACT.
Prior TO October. 1881, Wilbnrger coun-
ty was unorganized and constituted part
Of the Cluy land district. In October,
1851, said county organized and elected
an It's county officers. including a county
surveyor, who qualified as required hy
law. On the 2Sth Of April. 1SS2, j. X.
Nigh. county surveyor Of Wilbarger
county, received from the district sur
veyor of the Clay land district q map
Of the surveys heretofore made In Will
bargcr county, and q copy OF AL Mes,
applications and locations OF lands IN
said county, all Of which were NED IN
the surveyors Office in Wilbarger
county on the 20th VI April, lSS2. No
survey Of any of the boundary lines OF
Wilbarger county was made prior TO
1887. On March s, 1881, the commits
dunerg court of Wilbarger county or
dercd the county surveyor TO survey ana
establish the south and west boundary
lines Of that county. Bei2re maklhe lnls s
survey. notice was given the county court
of Baylor county. but no notice was CIV
on the county court Of Hardeman county
nor does il appear from the record
whether or not said last named county
was organized at this time 20 that such
notice could be given. In compliance
with this order of the commissioners
court Of Wilbarger county the surveyor
of said county surveyed the south dnd
west lines Of same, and recorded the
field notes thereof In the records OF the
surveyors office on the l4th day oil May
1883, and n copy Of this work was re-
turned to the general land oihce' but was
not accepted by the commissioner on ac-
count of defects therein, and nothing
further was done toward establishing
the boundary lines of said county as re
uuired by the act of April -, 1870.
On the 2Oth Of April, 1882, appellant, I.
j Sans. being the owner of Confederate
certificate No. 1857, issued TO w, Il.
Edison filed the same with the surveyor
of Wilhnrger county. accompanied by an
application signed by his father. q. A.
Sans. 10 survey the land IN controversy
Hereunder A survey upon this file was
made by said surveyor and returned 10
the general land Office July ~, lhSI,
where IL remained until August 4, lSS2,
when the commissioner without having
placed his file mnrk upon II, returned
the field notes 10 the surveyor OF Whbar-
ger county because of defects therein,
and because there was no evidence on
file in his office that Wilbarger county
had organized as a separate land district.
This survey was again returned TO the
land office by the surveyor OF Wlbarger
county ON Oct. 10, 1880, and on Oct. rs,
1882. the commissioner again returned
IL To the surveyor on account OF detects
therein. On Jan. Il, 1888, appellant
Sans again returned this survey 20 the
general land office, aud on Feb. ~, 1873
the commissioner returned IT 10 MN
because the survey was Incorrect. Inc
survey was again returned TO the general
land office July - 1888, when It was
marked "fled" by the commissioner; but
this filing WIS more than twelve months
after the date Of the survey which was
made May 5, 1889.
ON Nov. 25, 1882. appellee. Creager,
being the owner Of Confederate certtii-
cate 1ll9, issued TO A. j. Williams, filed
the same with the surveyor OF Wilbar-
ger county, accompanied with the proper
application 10 survey the land Ia con
tr0yersy. but before any survey was
innde he having been advised by the
commissioner of the general land Office
that Wilburger county was not Sepur-
ate land district and was still attached
10 the Clay land district for sur
yeying purposes, withdrew said certit-
cate from the office of the county SUR
veyOr of Wilbarger county for the pur-
pose OF filing the same in the Office of
the surveyor Of the Clay land district.
On the 18th of March, 1888, he filed said
NeFllIthlN Mllu NNlu AANA uAlAlf1 Fhl VI
accompanied with the proper application
10 survey the land In controversy aud
ON the 10Th of May, 1888, said surveyor
made the survey aud the held notes
were duly returned 10 the general land
office July IL, 1883. The surveyor of
Wilbarger county also assisted In maxi
ing this survey and recorded the field
notes In his office Upon this survey
patent was issued TO Creager ON Dec.
%, 1884.
On March 2S, 1888, one J. X. p. Rus
sell, being the owner Of Confederate Ger
tihcate No. l34l, issued TO 10. j. Logs
don. filed the same with the surveyor
of Wilbarger county, accompanied with
the proper application TO survey the
land in controversy, and survey was
made by said surveyor under this file,
June 30, 1883, and filed in the general
land Office Oct. Is, 1888. Appellant
Marsalis claims under this location. The
record does not show athrmatively that
this last named certificate was ever filed
with the county surveyor of Wilharger
| county, but from the fact that the sur
yey was made and returned TO the gen
eral land Office, we conclude that IL was
properly accompanied with the certii-
/ cate.
Because the boundary lines Of VIII
barger county had never been establish
ed as required by the net Of April %,
1879, the commissioner of the general
lNilu ONCE ltiNNtu 10 lttOkhllt the sur
veys made by the surveyor of said coun-
ty. and issued the patent upon the sur
yey made by the surveyor of the Clay
land district, and appellant, Mnrsalis,
brought this suit in the court below as
plaintiff against appellant, Sans and
appellee, CnNger, and others TO estab-
| lish the priority of this claim 10y reason
OF the facts above set forth. Judgment
was rendered Ia favor of uppellees. from
! which this appeal is prosecuted both by
the claimant under the Russell and the
| Sans locations.
OPINION.
IL Is contended by appellants that sec
ton I'D of the act April %, 1870 Is I'M
| constitutional because said act embraces
more than one subject and the subject
OF this section is not expressed in the
| title thereto. The tile Of shis ar is us
| follows;
AN act establishing and prescribing
the manner of ascertaining the hounda-
ries of counties" Then follows a fun
| and complete revision of our law upon
| the subject of establishing the boundary
lines OF counties and the hummer in which
| they shall be surveyed, aud section 10
! provides that Before any county In
| THIS state not already organized rs a
lond district under existing Law shall he
| recognized as such the county court Anil
/ thn hnnuHttr,s - a.