
    Cullem, Adm'x, v. Latimer.
    The remedy by writ of mandamus is not allowed in casos where the law affords other adequate means of redress, nor in any case, except to perform a dutyolearly defined by law, involving no discretion nor leaving any alternative. The petition should therefore be very distinct and precise in the statement of the circumstances, so as to show that the party is entitled to this peculiar remedy. (Note G8.)
    In the answer or return of tlie defendant to a rule to show cause why a mandamus should not issue according to the strict rules of tlie common law, the same certainty is required as in indictments, returns to writs of habeas corpus, counts, replications,and under any system there should be a reasonable degrees of certainty; a fair and legal reason should he disclosed why the alternative mandamus should not bo obeyed.
    The, 17th section of the land law of 1837, (Hart. Dig., arc. 1853.) authorizing the summary determination of conflicting claims to a location by the nearest justice of the peace and six - jurors, contemplates the adjustment of the controversy before the transmission of the field-notes for record to the office of the county surveyors But there may be circumstances which might authorize a resort to this summary remedy within some reasonable time after the field-notes have been transferred to one of the parties and placed upon the record; such as, for instance, fraud on. the part of the officers, ignorance of the party that the survey had been made, &c.
    "Where the right to a location has been contested and determined by a justice of the peace • and six jurors under the 17th section of the land law of 1837-, the determination is final, and there is no appeal. (Note G9.)
    It is a ruleln application for a mandamus that all persons interested in the defense must be included in the rule to show cause. Therefore, where application is made for a mandamus to compel a survey or to survey, or the Commissioner of the General Land Office to issue a patent, all persons who, to the knowledge of the applicant, claim property in the land should be summoned to defend their rights.
    Error from Bed Biver.
    Morgan, for plaintiff in error.
    Morrill, for defendant in error.
   Hemphill, Ch. J.

This is an application for a mandamus to compel the defendant-, as county surveyor, to survey for the petitioner, as adminis-tratrix of the estate of Benjamin E. Brewster, deceased, and by virtue of his headlight certificate, nineteen hundred and twenty acres of land, specially described in the petition, and including an improvement occupied and settled by the decedent in 1S35, and on which'lie continued to live until the time of his death, and which from that time has'been and is now in the possession of tlie petitioner. The. petition alleges that the certificate was lodged with a deputy surveyor in July, 1S38, with directions to survey a league and labor so as to include the said improvement, and that there was sufficient vacant land for that purpose; that the surveyor was repelled by a fordo of armed men and prevented from completing the same; that the certificate was recommended asa legal and genuine claim, and placed in June, 1811, in tlie hands of auothcr deputy surveyor, with directions to survey so as to include the settlement; that the survey was but partially made; that at some time not stated in the petition tlie deceased instituted a suit before an acting justice of the peace, against one John II. Duke, for having located seven hundred and ten acres of the land (for tlie survey of which this application for a -mandamus is made,) and that on the 10th day of November, 1S42, the said court adjudged that the right to locate tlie said seven hundred and ten acres of land was then and lias been in the said deceased, Brewster; that tlie survey of Duke, was wholly void; and that the county surveyor should deliver the field-notes of the said survey to Brewster; and that this judgment stil! remains in full force, and effect., not reversed, satisfied, or iu anywise vacated; that the certificate of Brewster had in the meantime been lost, and, from a suspension of business in the land office, a duplicate could not he obtained previous to the deatli of Brewster in 18-13; that this was issued in 1843 and'placed, in 1847, in the hands of the de-fendáis, with directions to survey nineteen hundred and twenty acres of land so as to include the improvement to which reference has been made.

The defendant, in his answer or return, states that he is informed and believes that John H. Duke, John H. Glover, and others are interested in the matters set forth in plaintiff’s petition, and prays that they may be cited to defend, and himself released, as he lias no other interest than as county surveyor; and in an amended return he states as his reasous for not surveying tlie said land according- to tlie directions of tlie plaintiff that it appears from the records of his office that on the 20th July, 1841, seven hundred and fifty acres of the land were surveyed and. recorded by his predecessor in office.

Outlie pleading's it was adjudged that, as it appeared from the answer of the defendant a portion of the land had been surveyed for other persons and the field-notes recorded, the rule should be discharged and tlie mandamus refused; and from this judgment an appeal has been taken to this court.

The allegations of tlie parties on applications for a mandamus to compel the survey or patent of lands are frequently so indefinite and vague as to tlie grounds on which the right is claimed or denied as to create embarrassment in rendering- the judgment demanded by tlie justice of tlie ease. The circumstances under whicli tlie applicant claims the right should be positively and distinctly stated, and objections whicli might be anticipated should be met and answered, (i Chitty Gen. Prac., 808 ; 25 Maine R., 291.) In tlie answer or return of the defendant, according- to tlie strict rales of the common law, tlie same certainty is required as in indictments, returns to writs of habeas corpus, counts, replications. &c.; and under any system there should he a reasonable degree of certainty. A fair and legal reason should be disclosed wily the alternative mandamus should not he obeyed. (2 Tex. R., 461; 6 Tex. R., 495; 10 Pick. R., 59.)

This certainty of pleading on the part of the plaintiff or relator is essential as well from tiie general rule requiring- in petitions, in all eases, a full ami clear statement of tiie facts as upon the grounds that this remedy is not allowed in cases whore tlie law affords other adequate means of redress; and that it issues only to perform a duty clearly defined by law, involving- no discretion nor leaving any alternative. (12 Pet. R., 452; 14 Id., 514; 3 How. R., 97; 6 Id., 98; Glascock v. The Commissioner of the General Land Office, 1 Tex. R., 61; Bracken v. Wells, Id., 88.)

Many of the facts essential to the establishment of tlie plaintiff’s claim are pleaded with a commendable degree of fullness and precision, but there are some important circumstances relative to the suit before the magistrate and the recording of the field-notes of the survey of Duke whicli are omitted. The provisions authorizing tlie summary determination oE conflicting- claims to a location by tlie nearest justice of the peace and six jurors contemplates evidently tlie adjustment of tlie controversy before the transmission of tlie field-notes for record to the office of tlie comity surveyor.

The 17th section of the land law of 1837, p. 08, under which the proceeding was had, gives authority to survey on certificates of headright claims, and instructs the surveyor, in case of conflicting claims, to which party, under certain, circumstances, preference shall be given ; and in all other cases the conflict is to lie adjudged by tlie nearest justice of the peace and six disinterested jurors, and upon their decision tlie surveyor shall grant to the successful party tlie field-notes of the tract of land. Tlie object of the summary proceeding was that the disputes of this character should he promptly decided, as well for the benefit of tlie parlies themselves as that tlie surveyor might ascertain the party to whom the field-notes properly belonged, and that the point at which the adjoining- lands were open for location should be known. To avoid delay and suspense, no appeal was given, and the judgment was final and conclusive.

To permit tlie right to (lie field-notes to be contested before this special tribunal, at any distance of time after they have been recorded for one of the parties and perhaps patented to him, would in a great measure defeat tlie salutary operation of the law, and involve the records of the land office in tlie confusion intended to be obviated by the speedy decision of tlie controverted rights. But there may be circumstances, which might authorize a resort to this summary remedy within some reasonable time after the field-notes have been transferred to one of tlie parties and placed upon tlie record; such as, for instance, fraud on the part of the officers, ignorance of the party that the survey had been made, &c. At what time the proceeding here was commenced before tlie magistrate does not appear. It was concluded in November, 1842, sixteen mouths after tlie survey and perhaps the recording of tlie field-notes, though tin* time of the record is left uncertain. The suit was most probably instituted a considerable period after both these acts had been performed.

Kote GS.—Commissioner v. Smith, 5 T., 471; Arborry v. Beavers, 6 T., 457; Horton v. Pace, 9 T., 81; Watkins v. Kirchain, 10 T., 375; Puckett v. White, 22 T., 559; Houston Tap & Brazoria R. R. Co. v. Randolph, 24 T., 317; Durritt v. Crosby, 28 T., 687; Tabor v. Commissioner, 29 T., 608; Railroad Company v. Commissioner, 36 T., 382; Bledsoe v. Int. R. R. Co., 10 T., 537; Kenchler v. Wright, 40 T., 537.)

Tlie applicant should, under the circumstances, have averred tlie time of the institution of the suit, and, if long after tlie survey, the reasons for tlie delay. If redress could be obtained in this summary mode at the commencement of the proceeding, it must be under circumstances not shown, and which should have been- alleged, that tlie question of tlie validity of the judgment might be fairly considered and determined. It was evidently treated in the court below as a nullity, and totally disregarded. The facts in relation to the time at which tlie proceeding' was commenced not being stated, and tlie question touching the validity of tlie judgment being but" slightly adverted to in the argument, it is not, under the circumstances, deemed advisable to give a decisive opinion as to its legal force or effect.

The fact of tlie record 'of the field-notes must have been lenown to the applicant, and should have been stated, together with the grounds upon which the writ was claimed, notwithstanding such record.'

Tlie judgment ivas rendered nearly five years before tlie application to the defendant To make the survey; and the fact of his having had notice of the judgment should have been stated, on tlie ground that all the circumstances which would show that his duty was clear and involved the exercise of no discretion should have been averred.

The defendant, in his original answer, states that John H. Duke, John H. Glover, and others are interested in tlie matters contained in the plaintiff’s petition, and prays that they may be eiied to defend, as he lias no other interest than as county surveyor. It is a rule in applications for a mandamus that all persons principally interested in tlie defense must be included in the rule to show cause. (3 Burr. R., 1133; Smith v. Power, 2 Tex. R., 68.) Tlie writ issues to compel the performance of a duty, but tlie surveyor patent being predicated on tlie supposition that tlie land is vacant, or if not vacant, that tlie claimant has (lie best right, all persons who, to tlie knowledge of the applicant, claim property in tlie land should be. summoned to defend tlieir rights.

Had tlie judgment against Duke been rendered by a court of competent jurisdiction, a summons to him would be unnecessary, as his want of right would in that event have been conclusively established.

Tlie returns of the defendant are very defective. Tlie certainty required in an answer in eases of this character lias been already indicated, and need not on this occasiou be further developed. (Wil. M. C., pp. 402-406.) Had the parties really in interest been before tlie court, such issues would probably have been presented as to have raised the proper questions for the determination of the court.

The claimant’s right to the land originally, as the oldest occupant and settler, is clear, as well by Tlie Constitution as tlie land law of 1837. The statute evidently intended that this should be contested and decided summarily before the rights of others could be prejudiced by tlie laches of the claimant. Whether this lias been done in compliance with tlie intent and spirit of tlie statute cannot bo determined on the present state of tlie pleadings.

A portion of the land claimed by tlie relator appears, at least by implication, from the amended answer to be vacant. The only matter of contest arises in relation to tlie seven hundred and fifty acres surveyed for Duke.

The judgment is ordered to be reversed and the cause remanded for a new trial.

Judgment reversed.

Note GO.—As to decisions in election eases, see Arberry v. Beavers, 6 T., 457; O’Docherty v. Archer, 9 T., 296; Walker v. Tarrant County, 20 T., 16; Timmins v. Lacy, 30 T., 115; Wright v. Fawcett, 42 T., 203; Rogers v. Johns, 42 T., 339.  