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: 484
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!3·i IMILLER AND BURNETT V. HAYS. [Term of
Opinion of the Court.
We ask affirmance of the judgment.
REEVES, J. It does not appear that the court acted on the
exceptions of the intervenor, Burnett. The only judgment
rendered by the court was to award the peremptory mandamus
directing the surveyor to survey for the appellee, Hays, the
land described in his petition. The questions in the case arise
upon this judgment.
On the 29th day of June, 1867, the plaintiff, Hays, made
application to the county surveyor for a tile upon, and survey
of, the land in controversy, claiming it as a preemptor under
the Act of November 12, 1866, donating one hundred and sixty
acres of land to actual settlers upon the public domain. He
stated in his application that he believed the land was vacant,
as contemplated. by the Act of November 12, 1866, and that
he had settled on it in February, 1866, and asked for a survey
of one hundred and sixty acres, to include his improvements.
The application was rejected by tile surveyor, because, as he
stated, the land had been located previous to the passage of the
Act of November 12.
It was shown on the trial that appellant, Burnett, had filed
on the same land in July or August, 1866, and that his survey
was made on the 1st day of November thereafter, and patented
on the 9th day of August, 1869.
The first section. of the Act of November 12, 1866, provides
that "All white persons, being heads of families, or twenty-one
" years of age, who have settled upon and improved, or who
"may hereafter settle upon and improve a portion of the vacant
" public domain, which has never been filed upon, located, or
"surveyed by virtue of some genuine, legal, and valid certifi"
cate, or other evidence of title to land, previous to such settle"
ment and improvement, shall have the privilege of locating
"and appropriating a tract of such vacant land, not to exceed
" one hundred and sixty acres, so as to include said settlement
" or improvement, in preference to all other claims or claimants,
" and all files, entries, locations, or surveys made so as to inter
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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/m1/492/: accessed June 26, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .