This is a petition for a writ of mandamus to compel the defendant, as the Commissioner of the General Land Office, to issue patents to the petitioner to two surveys of land in Newton County.
It appears from the allegations in the petition, that the plaintiff, being the owner of a certain land certificate issued in pursuance of the Act of April 9, 1881, granting certificates for land to persons permanently disabled in the service of the State or of the Confederate States, in September, 1883, filed the same upon two tracts of the unappropriated public domain lying in Newton County, and caused the lands to be surveyed and the field notes, together with the certificate, to be returned to the General Land Office. One of these surveys was for 1254 acres of land and the other for 1280. They were not contiguous to each other, but each embraced all the vacant land in the respective tract. The tract first *Page 66 mentioned was located for the petitioner, and the second for the benefit of the school fund. The lands were not patented under these locations.
Such was the state of the case when the decision of this court in Von Rosenberg v. Cuellar, 80 Tex. 249, was announced. In that case it was held, that the act under which the certificate in question was issued did not authorize the holder of such certificate to select his own land and locate it in one part of the State, and to locate the like quantity for the school fund in a different locality. Subsequent to that ruling the petitioner caused each of the two tracts to be subdivided into two surveys, equal in quantity, and returned the new field notes to the General Land Office. The two new surveys on the tract of 1254 acres were numbered 1 and 2, and the two on the other 3 and 4, respectively. Surveys 1 and 3 purported to have been located for petitioner, and 2 and 4 for the State. The field notes of surveys numbers 3 and 4 are alleged to have been passed upon at the Land Office and found correct; and it is also alleged that the field notes of numbers 1 and 2 were also found correct, except as to a conflict with an older pre-emption survey which had been abandoned, as shown by an affidavit on file in the General Land Office.
It may be conceded, for the purposes of this opinion, that the petitioner was not entitled to locate the entire certificate upon two disconnected tracts, and to designate which should be for his own benefit. It does not follow that he would not have the right to cause each parcel to be resurveyed into two equal tracts in order to comply with the intent of the statute. Whether he had this right or not depends, as we think, upon the question whether the original locations were void or merely erroneous.
Since there was not vacant land enough in either locality to admit of the location of the entire certificate in two surveys adjacent to each other, he was entitled to locate the certificate in part upon the one tract and in part upon the other. In other words, he had the right, by virtue of the certificate, to appropriate for the purposes declared in the act under which it was granted all the land in the two surveys.
Should the fact that he has mistaken his right, and has claimed and designated one survey for himself and the other for the State invalidate the location? We think not. Let us illustrate: It has been decided, that the owner of an undivided half of a certificate for land may locate one-half thereof for his own benefit, and that he becomes the owner in severalty of the land so located. But let us suppose that two persons acquire title to a certificate under a contract that one shall locate it for the benefit of both, and that he whose right and duty it is to select the land and make the location should file upon two tracts equal in quantity, and in the file should designate that one is for himself and the other for his co-owner, could it be seriously contended that the locations were void? We think not. The result in such a case would be the same, although the agreement between the holders of the certificate had been that one should *Page 67 make the locations in two surveys, and the other should have the right to select one of them as his own. In the latter case, the attempt of the locator to exercise a privilege to which he was not entitled would be without effect as against his co-owner, but it would not render the location void.
The case supposed is not essentially different in this respect from that under consideration. The locations lawfully appropriated the two tracts of land by virtue of the certificate. The surveys it may be were incorrect, by reason of the fact that each tract should have been divided into two surveys, each of the same number of acres. It may have been the duty of the surveyor to have so surveyed the lands in the first instance, notwithstanding the directions of the locator to the contrary. The petitioner may have mistaken his right, and the surveyor may have mistaken his duty. It does not, however, follow that the locations were thereby made void. It has been, we think, the uniform practice to correct errors in surveys after the field notes have been returned to the General Land Office, and we see no good reason why the rule should not apply in the present case.
But the petitioner has designated one of the two new surveys on each tract for himself, and his prayer is that the Commissioner may be commanded to issue patents to him to the surveys so designated. This raises the question, Who has the right of selection?
The third section of the act by virtue of which the certificate under consideration was issued provides, that "The certificate granted under the provisions of this act shall be located as follows: The locator shall also locate a like amount of land for the benefit of the permanent school fund before either shall be patented; and such locations shall be made on any of the public domain of Texas not reserved by law from location." 2 Sayles' Ann. Stats., arts. 3880d, 322.
If the intention was that the locator should be entitled to select which of the two locations should be patented to himself, that intention is not directly expressed. What is expressed is, that before patents shall issue, two surveys shall be located by virtue of the certificate, one of which shall belong to the locator and the other to the State. That the duty of designating which shall belong to the holder of the certificate and which to the school fund is devolved either upon the locator or upon the Commissioner of the General Land Office is necessarily implied; but who is to exercise that right is a question which can be determined only by construction.
The purpose of requiring a location for the State was doubtless to give effect to that provision of the Constitution of 1875 which declared, that one-half of the unappropriated domain then existing should belong to the school fund; and we think this fact should be kept prominently in view in determining the question under consideration. *Page 68
The school fund being entitled to an undivided one-half interest in the public lands, it was proper for the Legislature, if not its duty, when granting the right to appropriate any part of them, to make provision for setting apart in severalty a like portion to the school fund. Since the adoption of the Constitution this has been the general, though not the uniform, course of the legislation which authorized the appropriation of the public lands.
It may be that the Legislature, in providing for the segregation of the interest of the school fund in lands to be located by virtue of a certificate of the character of that now in consideration had the power to set apart to it a tract equal in quantity but inferior in value to that to be appropriated by the locator.
But it seems to us it was not only proper, but also its duty, in providing for either a general or a partial partition, to adopt measures to secure as far as practicable a fair and equitable division of whatever should be partitioned.
To authorize the locator, in a case like this, to select his own survey, would be to enable him to locate two adjacent surveys, equal in quantity but unequal in value, and to appropriate a valuable survey for himself, and to designate for the school fund one comparatively worthless. Such a result would be inequitable and unjust to a fund having under the Constitution an equal right with the State in the lands so appropriated.
On the other hand, a provision which requires the Commissioner to designate which survey should be patented to the locator and which set apart to the school fund, is equitable in its results. The holder of the certificate has it in his power to locate upon two surveys of substantially the same value, so that he can not be prejudiced by the Commissioner's selection.
Since the act does not expressly require that the two surveys shall be of equal value, it would seem that the right of selection on part of the Commissioner is a check upon the power of the locator, necessary for the protection of the school fund.
Conceding, then, for the sake of the argument, that the Legislature had the power to give the right of selection to the locator, the intention of the act not being express, and one construction leading to an equitable and another to an inequitable result, the question is, which should prevail? We are of opinion that we should not impute to the Legislature an intention to do an injustice to a favored fund, and that the law properly construed requires the Commissioner to act in analogy to the practice under similar statutes for locating "alternate certificates," and to select one for the school fund and to patent the other to the plaintiff.
We have deemed it proper to express our opinion as to the rights of the petitioner under his locations so as to avoid further litigation. But since the prayer of the petition is to compel the Commissioner to patent *Page 69 the two surveys which have been designated by the petitioner for himself, it follows from what has been said that his prayer can not be granted. The peremptory writ of mandamus is therefore refused, at the plaintiff's costs.
Mandamus refused.
Delivered May 31, 1894.