Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 20
20 EL. & T. C. R'Y Co. v. T.RA.IS COUNTY. [Austin Term,
Opinion of the court.
The construction thus given by the courts during the long period
of time during which the decisions referred to have been followed,
has given rise to no legislation indicating an intention to
establish a rule different from that which those decisions have afforded.
Such continued acquiescence would seem to indicate that
the legislative mind acquiesced in the policy of restricting the operation
of the maxim, nullum tempus occurrit qregi, so far as the state
even is concerned, within the limits which judicial construction has
assigned to it.
Under this suggestion, it is deemed pertinent to refer to an act
of the legislature, the purpose of which was to protect certain
school lands granted to counties from the operation of the statute
of limitations, as showing that the legislature conceived that the
statute of limitations would run against counties unless its operation
in that respect was restricted by legislative enactment. The
statute referred to is art. 3470, Pasch. Dig., which provides that,
"No statute of limitation shall run in favor of any one who has
heretofore, or may hereafter, settle upon or occupy any of the lands
that have heretofore been granted, or may hereafter be granted, by
the state, for purposes of education."
We are of opinion that it is clearly settled upon authority, and
by the analogies to be drawn from our own decisions, aided by the
inferences deducible from our legislation, that the statute of limitations
of two years has proper application to the plaintiff's cause of
action, and that the court erred in striking out the defendant's plea
of the statute.
The plea was not obnoxious to the objection, either, that it was
not pleaded in the due order of pleading, and it was not subject to
be stricken out on that ground.
We conclude that the judgment ought to be reversed and the
REVERSED AND REMANDED.
[Opinion adopted June 6, 1884.]
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth28512/m1/42/: accessed August 24, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .