Opinion
No. 462.
Presented May 7, 1896. Denied May 18, 1896.
Petitions for rehearing of a case decided March 30, 1896, 162 U.S. 170, are denied.
Mr. Clarence H. Miller and Mr. Joseph Wheeler for petitioner.
Two petitions for rehearing were received.
It is firmly established that the State of Texas cannot, in opposition to its wishes, be compelled to accept an office survey constructed by merely copying and adopting the field-notes of a previous survey made on the ground for other parties by other surveyors, and that such office surveys are not sufficient to enable a purchaser to enforce an executory contract for the sale of public lands under the act of July 14, 1879, as amended March 11, 1881. Bacon v. Texas, 2 Tex. Civ. App. 692, and cases cited.
We adhere to the ruling that error was committed by the Circuit Court in the manner in which this matter of the necessity of surveys on the ground was left to the jury. We also intimated that it seemed from the evidence, so far as before us, that the surveys in this instance were not in fact made on the ground, but that was not essential to the decision.
Some expressions in our former opinion implying that payment was a prerequisite to recovery are complained of. What we intended to say was that under the pleadings, and on plaintiff's contention as it seemed to be pressed, it was necessary that he should show that he had so far complied with the law as to have obtained a vested right to patents as against the State on making the required payments in the required time, and this we thought he had failed to do as to all the tracts, it being borne in mind that each tract must be treated as a separate purchase under the statute, as held in Bacon v. Texas, supra, though this contract, as between the parties, was an entire contract for the transfer of rights in the many tracts necessary to make up the agreed number of acres.
Petition denied.