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: 480
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480 MILLER AND BURNETT V. HAYS. [Term of
Argument for the appellant.
The intervenor, J. H. Burnett, about the last of July, 1866,
made a location upon the premises in controversy, which appear
to have been then vacant, and a portion of the public
domain, subject to location by any valid certificate; the land
was regularly surveyed by the county surveyor, on the 1st of
November, 1866, and on the 9th of August, 1869, a patent was
duly issued to him.
At the time of this location by the intervenor, the appellee
was on the land, but in what right, is not alleged by the
On the 29th of June, 1867, the appellee made a file, as preemptor
on the premises in suit, under the Act of 12th of November,
1866. (2 Paschal's Digest, Articles 7058, 7063.)
This application was rejected by the county surveyor, on the
ground that the land had been located previous to the passage
of the above recited acts, and was no longer vacant.
On the 19th day of December, 1870, the appellee filed his
petition for a mandamus against the county surveyor of Houston
county, to compel him to survey said land for the appellee.
The surveyor answered, setting up substantially the above
facts; and on the 18th of April, 1871, J. H. Burnett intervened,
claiming the land by virtue of his certificate, location,
survey, and patent.
A jury was waived, and the questions of law as well as of
fact submitted to the court, when a mandamus was awarded
in favor of the appellee, whereupon the intervenor appealed.
The only question brought before this court by the record
and assignment of errors is the correctness of the action of the
District Court in awarding the mandamus.
Hancock, West c& North, for appellant, Burnett, contended:
First. That the Act of November 1, 1866, was in conflict
with the Constitution of the State (Article 1, Section 2); in
conflict with the XIVth Amendment to the Constitution of the
United States; in conflict with the Acts of Congress known as
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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/m1/488/: accessed November 24, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .