Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 479
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1875.] MILLER AND BURNETT V. HAYS. 479
Rogers v. Nichols, 20 Texas, 719, and Thompson v. Tinnin,
25 Texas, Supp. 56.
He has pursued the statutory mode of trial, with three verdicts
adversely to his claim, and the litigation ought to cease.
In the entry of the judgment it should have been stated that
the claimant had failed to establish his right to the property,
omitting the recital in the judgment that appellees should recover
one half of the property levied on, and leaving them to
their remedy on the bond, as provided by the statute in case of
forfeiture. The judgment should also have directed that the
ten per cent. damages as against Green's estate, should be paid
in due course of administration, and that execution issue
against the securities on the bond only.
It is ordered that the judgment be reversed and reformed,
and here rendered accordingly.
Reversed and reformed.
MILLER AND BURNETT v. L. D. HAYS.
PREEIMPTION. On the 29th June, 1867, B. applied to the county surveyor
for a file upon and survey of one hundred and sixty acres of
land, claiming it as a preemption under the Act November 12, 1866,
and stating, in his application, that he believed it to be vacant, and that
he had settled on it in February, 1866 ; C. filed on the same land in
July or August, 1866; had it surveyed November 1, 1866, and received
his patent August 9, 1869. In a suit by B. to compel the county surveyor
to make a survey under his file of August 29, 1867, Held,
1. That the Act of November 12, 1866, cannot be so construed as to
give to B. the right to a survey of the land after it had been
thus appropriated by C. Such a construction would change
the legal position of the parties, and violate the Constitution
in its provision against retroactive laws.
2. Even if the law were otherwise, B. could not maintain a proceeding
for mandamus against the surveyor, until after C.'s
patent had belen canceled by a decree of a court of competent
APPEAL from Houston. Tried below before the Hon. L. W.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/487/: accessed April 23, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .