The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1893-12-23

10 1852. and Of October 80, 1855 (const.
1859, article 10. sections and 81.
| THE intention is also manifeated by the
section which declares thai "ali unsatis-
Ined genuine land certificates now IN ex-
.sle ,b snali o. snr Ns, and returned
Of January. 1875. or be forever barred"
/ A genuine land certificate Us not Eatis-
| fed until the obligation Imposed by II IS
| discharged. IL location and survey by yir-
tue OF o given certificate be made on suf-
| ilcient nnd thus subject TO appropriation
and the survey with the certificate be
| returned to the general land office as the
| statute requires, then the ceftifcate is
| satisfied. The owner Of the certificate can
not abandon the right thus acquired and
| W., 1ty. Co, 70 Tex, 27.) Under the facts
stated the certificate could lawfully be
used n lsH 70. appropriate land other
! Of II ~ 1869.
The second question certified is moi
based on facts which would IN any respect
prevent the application OF the rule an
| nounced IN Beatty ya, Mastprson n Tex,
al, whichis now approved and referred to
~ ! ne snss,sr % that question Opinion
u. r. Duren VS.. Houston and Texas
Central Railway company from Second
districts. certified questions. We answer
ilrat that the court should take judicial
knowledge or the fact that In 1854 all the
unappropriated public domain In Van
Ianqt county was reserved ffcm location
by virtue OF the act OF December 81 1853.
kSpe. Lava bS-4, p. q Woods VS.. purrett,
Y Tex, 400 Location upon such land
would not AFFECT the validity of the certi-
tcate. Section OF the act of August SO,
1856 ~ not applicable 10 the location Ia
question. whch was made in 1854 The
purpose OF this act WAS to prevent the
lfting OF certificates and shows thnf II
was the opinion OF the legislature that
sueh. lltying 81 Withdrawal Of D certificate
was lAwful az the time. We are OF opinion
that the Smith certificate should prevail
Ihe location under which appelleeR claim
iYha made by surveyor who had no
power The survey and Held notes OF the
land located by virtue Of the Smith cerii-
ilHate We're maze by an agent OF the loca-
tors and adopted by the lawful surveyor
However much We nigh, denrecate this
practice II rs settled law that It can be
dorc (Hownra vs.. Perry Tex, 25g) The
plea or state demand can NOT avail IN this
case. the rights given one claiming un-
Ger 9 Naild certihcate location and SUR
Feg " such legal right as can not be
9SeeiIeatea ny The plea of state demand
Nhere q party appeals the other may file
cross assignments OF error and procure
9 reversal ot me Judgment IN his favor,
proytled ne shows error 70 his prejudice. |
opinion by Gaines a. j.
The st Louis, Arkansas ana Texas
Railway company VS. w. c, Henderson,
from Second district Appellee sued the |
railroad company to recover damages [
caused by the taking Of his land and for /
damages oceasIoned by the manner Of |
70 purchase made and arhtrators fixed the |
value OF the land at S2300. The money was /
pald but before the deed WAS delivered
the grade OF the road was changed. This I
appellee thought 60 his aetriment and he |
brought suit for the fun amount of dam
ages resulting from the building allowing
The jury were Instructed to find for
nlaintlu the value of the land taken and
me damage to the part left II they found
that the deed did not operate to divest
tiue out of plaintiff and vest 1t In the
railway company, They were also In
structed that II they found that the title
n the railway company they should find
.or the PLAINTIFF The amount of DAMAGES
iaused to his land by the negligent con-
'truction Of crossings and sluioes by the
company: BY these instructions more than
| single issue is presented to Jury When |
lsl,3 are presented Involving several diff
you'd attach by law and none exists bv
lndlsnpted contract, II the jury return n
5eneral verdict the court can not declare a |
len upon such verdict for 1t * not cer.
am that the amount found to be due Ia
lIpon claim entitled by law to a lien
Ihe constitution and laws of this State |
I'VE no lien for damages arising from neg
lgence or unsllillfulness In construction Of
ne road. Ihe verdict Of the jury IN this
nse may include damages for which no
len 8 given by law and Il was error for
he district court to foraclose a lien upon
ne general verdict OF the jury. For this
rror the judgments Of the court OF civil
ppeals ana the district court are reversed
nd the cause remanded. Opinion by
3rown, A, ].
Annie p, Harris VS.. II. shafer from
'hird district THIS Is n motion for re-
earring based on the contention that
he alleged insufficieucy OF description was
OF properly raised
Counsel for plaintiff in error understood
nat the fourth assignment presented the
lhuuicieney of the description and dis q
Used the point In his argument which /
lgument was replied to by counsel for /
elenaant IN error II Is not necessary for d
$ 70 determine whether or not the defpct
description might have been aided nv j
NWnueous evidence. 1t rs sufficient 10
ny that no such evidence was offered In
PC qstriot court and the anidavlts 6led i
: thls court can not be considered bv this
puFI II IS unnecessary to discuss the h
leAning Of the term upper half" AZ used
~ lanu ~ controversy in Swisher rs Y
Iuulpies' II TEX, lgi, was situated on a t
Yer and the words upper and lower
NJ uhcu with reference TO the low of the {
Yer we are not called upon 10 reverse i
r. Sase 20 give an opportunity for tho
'Lpuueton Of additional evidence The II
=, Tor rehearing is oVerruled Opin- Il
Criminal Appeals.