Ward v. Conner

Citations

• 33 Tex. 549

Syllabus

<p>1. The act of August30,1856, (Paschal’s Digest, Articles 4573, 4574, 4575,) did not repeal the seventeenth section of the act of December 14, 1837, (Id., Art. 4526,) nor invalidate surveys made in the field on genuine certificates and without prior or contemporaneous entries in the surveyor’s office. The proviso to the first section of the act of August 30, 1856, (Id., Art. 4573,) recognizes the seventeenth section of the act of December 14, 1837, as in full force.</p> <p>3. The concluding clause in Article 4573, to the effect that the survey shall not have preference over a prior location or entry, is nothing more nor less than a declaration that either a survey.actually made or a file in the surveyor’s office is a legal preliminary step towards acquiring title to • public land; and that whoever first takes either of those steps acquires the right to the land.</p> <p>3. The view above taken is further confirmed by the second section of the act of 1856, (Paschal's Digest, Art. 4574,) which contemplates that conflicts will arise between such files and surveys, to be determined by the surveyor on the facts of the case, and that the land is to be awarded to the claimant who has priority in point of time.</p> <p>4. Me!d, therefore, that it Was error to exclude competent evidence offered ■ • by a defendant to prove that before the plaintiff entered the land in the surveyor’s office, he, the defendant, had appropriated it by a survey in the field on a genuine certificate.</p>