majority">Lipscomb, J.

This was a suit for land founded on a location and survey of a part of a headright certificate for a league and labor, granted to the appellee, Brinlee. The record shows Brinlee’s claim to the land in controversy was founded on a settlement made upon it in 1833 ; headright certificate issued to him 2d February, 1838, and a survey in January, 1839 ; before his field notes had been recorded, a difficulty arose between Byers and Brinlee, and others, about their surveys, and Brinlee was thereby prevented from perfecting his title ; in that suit, appellant was made a party defendant with Brinlee; it was not decided until 5th April, 1848. (See case of this same appellant v. Byers’ heirs, supra.) During that year Brinlee made application to Charles Graham, as District Surveyor, to have his field notes recorded, but it was not done ; and in 1850, he made another application to Pirkey, Surveyor for Bowie County, and in 1851, he made a file of the unlocated balance of the certificate, and asked to have the land re-sur*288veyed upon said unlocated part of his certificate ; all of which was refused, and on the 3d day of February, 1852, he commenced this suit. The appellant’s claim by virtue of a location on the same land, made with Charles Graham, as District Surveyor of Bowie County, in July, 1849, and survey made in April, 1850 by Holcomb, as deputy of Graham. A portion of the land so surveyed, had been patented to appellants. It does not appear that there was any evidence in the office of the Surveyor, of Brinlee’s survey, at the time appellants made their files and had. their surveys. The evidence shows an extraordinary degree of irregularity in the Surveyor’s office ; no ijde book; files made on loose sheets ; the books mutilated.

The principal question requiring any consideration, in our opinion, is, whether the appellee has been so negligent in not having his field notes recorded, as to create a presumption that he had abandoned his location and survey. If he has so acted as to mislead an innocent person, looking out for public land to locate upon, to believe that it was vacant and unappropriated, and it has been so located by an innocent person, it is but just punishment for his negligence, that he should lose his location. It however may be answered, in this case, that the appellants are not those innocent persons, who were honest in their search for unappropriated public land. It would be a most unreasonable conclusion, to suppose that these appellants were ignorant of the fact that appellee claimed the land as a part of his headright claim, on which he had lived so long. They not only knew of his claim, and possession, but of his location and survey, and well knew the reason why he had not been able to progress in perfecting his title; because one of them, the husband, who was the agent in making the file for his wife, and filed his own claim, was a co-defendant in the suit that presented the obstacles to his obtaining a perfect title.

The case of Lewis v. Durst (10 Tex. R. 398) was a different case from this, in that there had been no survey, and there was no notice, either actual or constructive, to the subsequent locator, nor to his vendee. In the case under consideration, there *289can be no doubt of actual notice, to the appellants; and the long delay is sufficiently accounted for, to answer the ground of objection, that negligence and delay amounted to a presumption of abandonment.

There is nothing in the objection that the making of the file by Brinlee in 1851, of the balance of his headright, not before located, and asking a survey of the same land, was an abandonment of his first location. It was only an effort to obtain what he had been so long contending for, the perfection of his title, and was not designed as a surrender of any previous right. The cutting up of Red River County Land District into so many others, on the formation of new counties, the confusion necessarily resulting from the transfer of business from an old land district to a new one, and the irregularity in the offices, arising from negligence in Surveyors, must call for great liberality in sustaining the rights of those who had at an early day attempted to have their titles perfected,, or many of them would have their rights filched from them by the never tiring, prowling land hunter, ever ready, with certificate in his pocket, to seize upon any supposed defect of title in the first location. Such efforts to appropriate the labor of others, without paying for it, are entitled to no favor, whether regarded as a question of law or morals. The judgment is affirmed.

Judgment affirmed.

Citation profile

How this case has been treated — in progress