Telfener v. Russ (162 U.S. 170)

This case comes up on a writ of certiorari, issued to the United States circuit court of appeals for the Fifth circuit. The action was brought for damages for an alleged breach of a contract for the sale, by the defendant to the plaintiff, of certain unappropriated public lands of the state of Texas, the right to the title of which he claimed to have acquired from the state, and it arose upon the following facts: In July, 1879, the legislature of that state passed an act for the sale of a portion of its unappropriated public lands and the investment of its proceeds. It provided that any person, firm, or corporation desiring to purchase any of such lands set ap rt and reserved for sale might do so by causing the tract of land which the parties desired to purchase to be surveyed by the authorized public surveyor of the county or district in which the land was situated. And it was made the duty of the surveyor to whom application was made by responsible parties to survey the lands designated in such application within 3 months from the date thereof, and within 60 days after the survey to certify to, record, and map the field notes of the survey, and to return to and file the same in the general land office, as required by law in other cases. The statute also provided in its fifth section that within 60 days after the return to and filing in the general land office of the surveyor's certificate, map, and field notes of the land desired it should be the right of the parties who had the same surveyed to pay or cause to be paid into the treasury of the state the purchase money therefor at the rate of 50 cents per acre, and that upon the presentation to the commissioner of the general land office of the receipt of the state treasurer for the purchase money the commissioner should issue to the applicant a patent for the tract or tracts of land thus surveyed and paid for.

The statute declared that no tract of land should be sold under the provisions of the act which contained more that 640 acres, and that no tract should have a greater frontage on any running stream or permanent water than 1 vara per acre for each survey of 320 acres or less, and three-fourths of 1 vara per acre for all other surveys.

The statute also enacted that, after the survey of any of the public domain authorized, it should not be lawful for any person to file or locate upon the lands surveyed, and that such file or location should be void. It also declared that, should any applicant for the purchase of public lands fail, refuse, or neglect to pay for the same at the rate of 50 cents per acre within the time prescribed in section 5 of the act,-that is, within 60 days after the return to and filing in the general land office of the surveyor's certificate, map, and field notes,-he should forfeit all rights thereto, and should not thereafter be allowed to purchase the same; and that the land thus surveyed might be sold by the commissioner of the general land office to any other person, firm, or corporation who would pay into the treasury the purchase money therefor.

The plaintiff below, the defendant in error in this case, George W. Russ, a citizen of Texas, alleged that some time in October, 1882, he, being a responsible party, and intending to purchase a body of land which was subject to purchase and sale, applied, under the act of Texas, as amended, to the surveyor of the county of E1 Paso for the purchase from the state and for the survey of 1,813 sections of land of 640 acres each, being, in the aggregate, 1,160,320 acres, situated in that county, and forming part of the Pacific reservation; that the application was made in two instruments, describing different portions of the land, and that his applications were filed and recorded in the office of the surveyor; that on the 1st of November, 1882, he was about to proceed to have the lands surveyed into tracts of 640 acres each, when the defendant below, Telfener, offered to assume the payment thereof, and to contract for the sale and assignment of his (Russ') right to purchase the lands applied for from the state; and that thereupon a contract was executed between them, Russ and Telfener, bearing date on that day, in two separate instruments, constituting, however, only one distinct contract in its entirety, and as such contract, with dependent conditions, it was declared upon, by the terms of which Russ, claiming to have made application in due form for the purchase of about one million of acres of land in E1 Paso county, and reciting that Telfener was desirous of purchasing of him all his right, title, and interest in the lands under the applications made for their purchase, provided they were regularly ade under the act of July 14, 1879, agreed and promised to transfer and assign to Telfener all his (Russ') right, title, and interest in the lands applied for, the consideration being 25 cents per acre, which consideration Telfener promised to pay, and Russ also agreed to have the surveys made and filed with the maps and field notes in the general land office, for which Telfener was to pay him 5 cents per acre. It was for an alleged breach of this contract that the action of Russ, the plaintiff below, v. Telfener was instituted.

Andrew Wesley Kent, for plaintiff in error.

Clarence H. Miller and Joseph Wheeler, for defendant in error.

Mr. Justice FIELD, after stating the provisions of the act of Texas as above, delivered the opinion of the court, as follows: