
    ANDERSON v. POLK et al.
    (No. 4846.)
    
    Supreme Court of Texas.
    June 22, 1927.
    1. Evidence <&wkey;!l, 29 — Court will take judicial notice of facts surrounding Spanish grant to city disclosed by history of state and public statutes.
    Court will take judicial notice of facts disclosed by Texas history relating to establishment of city of San Antonio and'grant of land by Spain to such city and of public acts , recognizing validity of grant.
    2. Mandamus <&wkey;154(4) — Petition, alleging land in bed of abandoned river channel in San Antonio was school land, held insufficient to entitle plaintiff to mandamus, to have land surveyed, where it did not appear land was outside original grant to city (Rev. St. 1911, art. 5432, as amended by Acts 36th Leg. [1919] c. 163; I Gammel’s Laws, pp. 1379^ 1381, Sp. Acts 28th Leg. [1903] c. 44, §§ I, 2, 67, 125; 12 Gammel’s Laws, pp. 322, 335).
    In action to require county surveyor to survey certain tract claimed to be free unsur-veyed public school land under Rev. St. 1911, art. 5432, as amended by Acts 36th Leg. (1919)-c. 163, petition, alleging that land was situated, in city of San Antonio and originally part of bed and channel of San Antonio river, which had become dry by reason of changing of channel, and that Commissioner of Land Office had declined to recognize land as public land, held insufficient to entitle plaintiff to relief, where it was not shown land in question lay outside boundaries of grant by Spain to city of San Antonio, confirmed by Act of Cong, of Republic of Texas approved Dec. 14, 1837. (1 Gammel’s Laws, pp. 1379-1381); Sp. Acts 28th Leg. (1903) c. 44, §§ 1, 2, 67, 125 (12 Gammel’s Laws, pp. 322, 335), and also by 4 Gammel’s Laws, pp. 550, 551; 6 Gammel’s Laws, pp. 762, 769.
    
      3. Evidence <&wkey;83(3) — Holding of Commissioner of General Land Office that land is privately owned raises presumption of valid grant.
    Action of Commissioner of General Land Office in holding that particular land is titled land raises presumption that land was embraced within boundaries of valid grant, in view of presumption 'that public official rightly performs duty.
    4. Evidence <&wkey;83( I) — Public official is presumed to have rightly performed his duty.
    Law presumes that public official has rightly performed his duty.
    5. Mandamus &wkey;>!54(4) — Right of plaintiff in petition for mandamus must be fully and unreservedly set forth.
    Rules of pleading as applicable to remedy of mandamus require right of plaintiff to be stated unreservedly, fully, and clearly.
    6. Puhlic lands <&wkey;206 — Grant by Spain to city of San Antonio held to include bed of navigable river changing course (Rev. St. 1911, art. 5432, as amended by Acts 36th Leg. [1919] c. 163; Act Cong, of Republic of Texas, approved Dec. 14, 1837 [I Gammel’s Laws, pp. 1379-1381]; Sp. Acts 28th Leg. [1903] c. 44, §§ I, 2, 67, 125 [12 Gammel’s Laws, pp. 322, 335]).
    If tract of land claimed to be public school lands under Rev. St. 1911, art. 5432, as amended by Acts 36th Leg. (1919) c. 163, lay within original grant of Spain to city of San Antonio, validated by Act Cong, of Republic of Texas approved Dec. 14, 1837 (1 Gammel’s Laws, pp. 1379-1381), and Sp. Acts 28th Leg. (1903) c. 44, §§ 1, 2, 67, 125 (12 Gammel’s Laws, pp. 322, 335), no right to require county surveyor to survey such tract as public land was shown by fact that property may have been reclaimed from bed of navigable river on changing of river’s course, as original grant included soil beneath navigable rivers.
    7. Mandamus &wkey;»85 — Mandamus will not lie to require county surveyor to survey lands claimed as public school lands if any impediment exists to making survey (Rev. St. 1911, art. 5432, as amended by Acts 36th Leg. [1919] c. 163).
    To entitle plaintiff to mandamus to require survey of lands sought to be purchased as public school lands under Rev. St. 1911, art. 5432, as amended by Acts 36th Leg. (1919) e. 163, it must appear that there is no impediment to making of survey.
    8. Mandamus <&wkey;154(1)— Conclusions cannot be substituted for essential averments of fact in petition for mandamus.
    In petition for mandamus, conclusions of law cannot be substituted for essential aver-ments of fact.
    9. Mandamus <&wkey;!54(l) — Allegation that land sought to be surveyed is part of unsurveyed public school land held mere conclusion of law.
    In petition for mandamus to require county surveyor to survey tract of land, allegation that land is part of state’s unsurveyed public school land held mere conclusion of law.
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by J. E. Anderson against Louis Polk, as County Surveyor of Bexar County, in which the City of San Antonio was im-pleaded as defendant. Judgment dismissing plaintiff’s action was affirmed by the Court of Civil Appeals (291 S. W. 1112), and plaintiff brings error.
    Judgments of district court and Court of Civil Appeals affirmed.
    G. B. Smedley, of Wichita Falls, and Nelson Lytle, of San Antonio, for plaintiff in error.
    T. J. Newton, Joseph Ryan, Raymond Edwards, and Marcus W. Davis, all of San Antonio, for defendants in error.
    
      
      Rehearing denied October 19, 1927.
    
   GREENWOOD, J.

Plaintiff in error, Anderson, sued defendant in error, Polk, as county surveyor of-Bexar county, to require him, by mandamus or other appropriate writ, to survey a tract of land, which was a part of the former bed of the San Antonio river, and to return field notes to the General Land Office of Texas, in order that plaintiff in error might complete an application to purchase said tract as unsurveyed public school land. Plaintiff in error averred that it was the duty of the county surveyor to implead the city of San Antonio, a municipal corporation, because it was claiming the tract adversely to the state. After the county surveyor had im-pleaded the defendant in error, city of San Antonio, both the city and the county surveyor presented general demurrers to the petition of plaintiff in error, which were sustained by the district court. On the refusal of plaintiff in error to amend his petition, his suit was dismissed. On appeal, the honorable Court of Civil Appeals at San Antonio affirmed the judgment of the district court. 291 S. W. 1112.

•The petition of plaintiff in error, after naming Louis Polk defendant and alleging that defendant had been, since July, 1924, the county surveyor of Bexar county, contained the following averments;

First. The qualification of plaintiff in July, 1924, to purchase the land sued for.

Second. The delivery by plaintiff to the Commissioner of the General Land Office of Texas, about July 9, 1924, of an application of inquiry, there being no prior application, for the purpose of purchasing said land, under article 5432 of the Revised Civil Statutes as amended by chapter 163 of the Acts of the Regular Session of the 36th Legislature, said tract being described in said application as follows:

“Situated in Bexar county, Texas, in the city of San Antonio, Texas, being a portion of what was formerly the bed of the San Antonio river, * * * more particularly described as follows: Adjoining what is known as city blocks Nos. 118 and 186, and lying north of and adjoining’ the north line of Nueva street and west of and adjoining the west line of Garden street, beginning at a point near the north line of Nueva street where the diversion dam is intersected by the south bank of the abandoned river bed, thence following the said bank of the abandoned river bed up said river bed to a point where the said bank of the abandoned river bed intersects the more northern of the two diversion dams constructed for the straightening of the river at said point; thence following said diversion dam for a southeastern direction across the old river bed to the opposite bank of said old river bed; thence following the said bank of said old river bed down said old, river bed with said bank to the point where said bank of the old river bed intersects the more southern of the two diversion dams; thence following said diversion dam across the said abandoned river bed to the place of beginning.”

Third. The tract sued for “was at the time said application was written and filed, and is now, a portion of the unsurveyed land belonging to the public free school land which is subject to sale under article 5432, and that said land was originally a part of the bed and channel of the San Antonio river, which river was, and is, a navigable stream of more than 30 feet -in width, and the bed of which stream belonged, and belongs, to the state of Texas; and that the portion of said river bed described in the said application of inquiry is now abandoned and the water of the river does not and cannot flow through it, and could not and was not flowing through it when said application of inquiry was made and filed and at the time application of inquiry was made and filed said portion of said river bed had become and was permanently land. That said river bed became permanently dry land on or about January 1, 1914, by reason of the changing and shortening of the channel of the San Antonio river by the city of San Antonio; said city did by artificial means prepare a new channel and cause the water of the San Antonio river to be diverted from said former river bed to the new channel and did then fill in with earth the former river bed, making the same level with the land contiguous thereto; all. as more fully shown by the block maps and plats in the offices of the city assessor and city engineer of the city of San Antonio.”

Fourth. The acting Commissioner of the General Land Office advised plaintiff, by letter dated July 16, 1924, “that said tract of land hereinbefore described was not vacant,” and thereby the commissioner “declined to recognize the existence of the area hereinbe-fore described as public school land, and refused to authorize plaintiff to have a survey made, for the purpose of purchasing it as public school land.”

Fifth. But for the commissioner’s action, plaintiff would have taken all steps to perfect his purchase, as he became entitled to do under article 5432; and, at the time he filed his application, and since, he has always been ready, willing, and able to make all payments and do all things necessary to perfect his purchase.

Sixth. The city of San Antonio, a municipal corporation, in the county of Bexar, state of Texas, is the claimant of said land within the meaning of said article 5432, and that said city of San Antonio is claiming said land adversely to the state of Texas and adversely to the plaintiff, and that it is the duty of the surveyor to implead the city of San Antonio in this suit.

Seventh. Plaintiff prayed “that defendant be cited to appear and answer this suit and that said defendant implead the city of San Antonio as a defendant herein and also im-plead any other person or corporation who may be claiming said land or any part thereof adversely to the plaintiff or adversely to the state of Texas, and that on final hearing plaintiff have judgment against all of the defendants adjudging and decreeing that the said land is public school land and unsur-veyed public school land and is subject to sale under said article 5432, and that it be further adjudged and decreed that the plaintiff has fixed a right to purchase the said land under said article, by taking the several steps therein provided to be taken and that the plaintiff be permitted to file a formal application with the defendant, the said county surveyor, for a survey of said land and that said defendant, the county surveyor, be ordered and directed to make a survey of said land for the plaintiff, in accordance with said law and to prepare proper field notes thereof and to deliver the same to the plaintiff for filing in the general land office, and that it be adjudged that the plaintiff has fixed a right to purchase the said land against any and all defendants, in said suit and against all other persons, and that a writ of mandamus issue against said defendant, the county surveyor, and such other writs as may be appropriate to enforce the judgment of the court and that plaintiff have judgment for his costs and for general and special relief.”

In addition to the facts averred by plaintiff in error, the courts will take judicial knowledge of certain facts disclosed by Texas history and by public statutes. Dobbin v. Bryan, 5 Tex. 285; Flores v. Hovel (Tex. Civ. App.) 125 S. W. 610; Knight v. U. S. Land Ass’n, 142 U. S. 161, 12 S. Ct. 258, 35 L. Ed. 974.

Among facts thus disclosed are the following:

San Antonio, then called San Fernando de Bexar, was established in the early part of the eighteenth century during the days of Spanish sovereignty, and a grant of land was-then made by Spain to said city. Dittmar v. Dignowitty, 78 Tex. 26, 14 S. W. 268.

The Republic of Texas recognized the validity of the grant from Spain and confirmed it: by an act of Congress, approved December 14, 1837. The act 'provided tba.t tbe bounds of the city “shall include and comprehend all that tract of land, originally granted to and composing said city, with its precincts.” The act recognized the right of the city “to sell and alienate such public lots or parcels of land as may lie within their jurisdiction, and to which there is no legal claimant or title.” 1 Gammel’s Laws of Texas, pp. 1379, 1380, 1381.

This act was construed by this court as passing a title in fee to land within the boundaries of the grant. On this subject, the court, speaking through Chief Justice Stay-ton, declared:

“Legislation since this country passed from Spanish dominion evidences clearly an intention that the city of San Antonio should hold in fee all lands within its ancient limits which had not before that period become the property of individuals.” Dittmar v. Dignowitty, 78 Tex. 27, 14 S. W. 269.

In 1903, the Legislature of Texas passed chapter 44 of the Special Laws of the Twenty-Eighth Legislature. Section 125 declared the chapter to be a public act and required all courts to take judicial notice of its provisions. Section 1 declared that the inhabitants of the city of San Antonio “shall continue to be” a body politic and corporate, under the name “city of San Antonio.’’ Section 2 provided :

“The bounds and limits of said city, within which said corporation shall have jurisdiction shall include six miles square, of which the sides shall be equidistant from what is known as the cupola of the cathedral of San Fernando, and three miles therefrom, with lines running east, west, north and south, which bounds shall be ascertained and established under the direction of the city council.”

Section 67 authorizes the city “to provide measures to keep the waters of the river and streams pure, to remove all obstructions or dams in said river or streams within the limits of the city; to widen and deepen the channel of said river and streams, to prevent the erection of factories or establishments on the banks of any stream or ditches which will befoul or make impure the waters of such river or ditches; to alter and establish the channels of any streams, ditches or water courses within the limits of the city when the health, safety or convenience of the, city requires such to be done.” 12 Gammel’s Laws of Texas, pp. 322, 335.

Other Acts of the Legislature, referred to in the Act of 1903, as far back as 1856, recognized the city of San Antonio as having substantially the same boundaries as are fixed in the 1903 act, and conferred similar powers on the city over the river and its channel to those conferred by the 1903 act. 4 Gammel’s Laws of Texas, pp. 550, 551; 6 Gammel’s Laws of Texas, pp. 762, 769.

Viewing the allegations of the plaintiff in error’s petition in the light of the above-recited facts disclosed by the state’s history and legislation, it is evident that plaintiff states no facts whatever to rebut the finding and conclusion of the Land Commissioner that the land in controversy was not vacant and was not subject to sale to plaintiff in error, unless they be the following:

First. That the land was situated within the city of San Antonio and was delineated on maps in the Offices of the city assesspr and the city engineer.

Second. That the city of San Antonio claimed the land under such a grant as would pass title to the city superior to any title remaining in the state, and superior to any title which could be acquired from the state by plaintiff in error.

Third. That the city had so filled and changed the channel of the river in 1914 as to make the area in controversy dry land, which it was authorized to do only within the city’s limits.

Fourth. That the land applied for was a part of the former bed of the San Antonio river, which was a navigable stream more than 30 feet in width, and that no one had preceded plaintiff in seeking to purchase such land.

Bearing in mind that the one obstacle to the survey sought by plaintiff in error, according to his own petition, was the ruling of the Land Commissioner that the land in controversy was not subject to sale by the state, if the commissioner’s ruling would be upheld by the location of the land within the grant from Spain to San Antonio, it must be presumed that the land so lies. To indulge that presumption is but to apply the familiar principle that the law presumes that a public official has rightly performed his duty. Byers Bros. v. Wallace, 87 Tex. 507, 28 S. W. 1056, 29 S. W. 760 ; Shepard v. Avery, 89 Tex. 306, 34 S. W. 440; Clements v. Robison, 111 Tex. 456, 239 S. W. 902. Especially significant is the failure of plaintiff in error to plead so easily ascertainable a fact as the situation of the land with respect to the limits of the city, if that would establish his right to the mandamus. For, the governing rule was stated years ago by Mr. Justice Roberts in the following words:

“The rules of pleading, as applicable to the remedy of mandamus, must require the right of the plaintiff to be stated unreservedly, fully and clearly. In England, the right is shown in the affidavit, offered on the motion in support of the rule, and there it is laid down, that ‘the affidavit should also anticipate * * * every possible objection or argument in fact, which it may be expected will be urged against the claim.’ (1 Chit. Gen. Pr. 808.) The rule as laid down by the late Chief Justice is, that ‘the circumstances under which the applicant claims the right, should be positively and distinctly stated, and objections which might be anticipated should be met and answered.’ Cullem v. Latimer, 4 Tex. 331; [Comm’r of General Land Office v. Smith] 5 [Tex.] 480; [Arberry v. Beavers] 6 [Tex.] 473 [55 Am. Dec. 791]. The object of such strictness is, that the court shall be fully satisfied of the propriety of the exercise of this extraordinary remedy, in requiring an officer to do what, notwithstanding his official obligation, he has refused to do.” Houston Tap & Brazoria R. Co. v. Randolph, 24 Tex. 333.

We are all the stronger impelled to consider the land within the grant to the city because that seems almost the necessary. consequence of the allegations of the petition after discarding pure conclusions of law.

Treating the tract in controversy as lying within the grant to the city, the authorities are agreed that plaintiff in error shows no right to recover by merely pleading that such tract has been reclaimed from the bed of a navigable river.

We have already shown that this court decided in Dittmar v. Dignowitty, supra, that the city of San Antonio acquired a fee title to the land within the bounds of the Spanish grant, except portions previously titled, under the law governing that grant and subsequent laws of the republic and of the state.

The Supreme Court had long before determined, in an elaborate opinion of Judge Roberts, in Galveston v. Menard, 23 Tex. 349, 393, that title would pass under a grant from the government to land covered by the tidewater of a navigable bay. In his opinion for the court, Judge Roberts said:

“Whether, then, this legislative grant he considered with reference to the civil law, which was in force in Texas in 1836, or to the common law, to which her people were most accustomed, it must be held, that the government had the power to make it.”

This opinion recognizes that greater certainty is required in the terms of a grant to pass title to the soil of navigable rivers than to pass upland, saying:

“The true reason for requiring a more certain and specific intention to a grant, in the ease of lands covered by tidewater, connected with bays and other navigable streams, than in case of land not so covered, is believed to be, not any difference in the degree of right, possessed by the sovereign power of the state; but the difference in the character of the property, in its relation to, and connection with, other rights, such as of navigation, of fishing,'etc., which may be and usually are, enjoyed in common by all the people of a state; and which are usually kept continually under the protection of the government, directly or indirectly.” Galveston v. Menard, 23 Tex. 397.

The Galveston Court of Civil Appeals, in an excellent opinion by Chief Justice Garrett, held that a tract within the old Spanish grant to Nacogdoches, which was quite similar to the grant to San Antonio, was not “unappropriated, public land,” and that an action seeking to compel the county surveyor to receive and file an application to purchase such tract was rightly dismissed on general demurrer. Taylor v. Hoya, 9 Tex. Civ. App. 312, 29 S. W. 540.

Baylor v. Tillebach, 20 Tex. Civ. App. 490, 49 S. W. 722, declares it to be well established that the sovereign can grant the soil beneath navigable public waters.

Almost the same question raised by plaintiff in error was presented in the case of Knight v. U. S. Land Association, 142 U. S. 161, 12 S. Ct. 258, 35 L. Ed. 974. In that case, the defendant claimed that the premises in controversy were a part of the pueblo of San Francisco and that the gran]; to the pueblo from Spain or Mexico had been later confirmed by the United States. The plaintiff asserted that the premises “were below the line of ordinary high-water mark at the date of the conquest of California from Mexico and therefore, upon the admission of the state into the Union in 1850, enured to it in virtue of its sovereignty over tide lands,” and had since passed to plaintiff by regular mesne conveyances under patent from the state of California. In upholding the title of defendant under the grant to the pueblo of San Francisco, the Supreme Court of the United States, speaking through Mr. Justice Lamar, said that even if the lands in controversy were tidelands, this “could in no way affect the rights of the pueblo. Its rights were dependent upon Mexican laws, and when Mexico established those laws she was the owner of tidelánds as well as uplands, and could have placed the boundaries of her pueblos wherever she thought proper.” Further the court said the doctrine that the United States acquired title to tidelands on acquisition of Mexican territory “does not apply 'to lands that had been previously granted to other parties by the former government, or had been subjected to trusts that would require their disposition in some other way.” In a concurring opinion, Mr. Justice Field said:

“Mexico owned the tidelands as well as the uplands, and it was, of course, in her power to make such disposition of them in the establishment and organization of her pueblos as she may have judged expedient.” 142 U. S. 201, 12 S. Ct. 271.

We think it cannot be doubted, in view of the principles announced in the foregoing authorities, that plaintiff in error wholly failed to plead facts sufficient to negative that title had passed out of the Spanish government to the land granted to San Antonio and confirmed by the Texas republic and state. Texas Mexican Ry. Co. v. Jarvis, 80 Tex. 460, 466, 467, 15 S. W. 1089. If title did so pass out of the Mexican government, none is held by the state subject to purchase by plaintiff in error.

The principle adverted to in the opinion of the Court of Civil Appeals as to where title to a river bed was vested under Spanish, Mexican, or Texan grants of land bordering on a navigable river bas no application to tbis case. Nobody alleges that a grant was made at any time bordering on tbe San Antonio river adjacent to tbe tract sued for. Tbe action of tbe Commissioner of tbe General Land Office, in bolding that tbe land in controversy was titled land, raises tbe presumption that it was embraced witbin tbe boundaries of a valid grant, wbicb presumption is greatly strengthened, as we have said, by plaintiff in error’s allegations and tbe facts witbin our judicial knowledge. Rut, as stated, no question is raised or presented by tbis record as to tbe rights of mere riparian proprietors in beds of navigable streams under tbe laws of Spain, Mexico, or Texas.

Nor are we concerned here with tbe character of right or title held by San Antonio under tbe ancient grant to part of tbe river bed. It suffices to uphold tbe action of tbe courts below in declaring tbe petition bad on general demurrer to say that tbe specific facts pleaded by plaintiff were wholly inadequate to overturn the action of tbe Commissioner of tbe General Land Office. So long as tbe commissioner’s act appears to have been lawful, no mandamus will issue against tbe county .surveyor. As said by Chief Justice Wheeler in Winder v. Williams, 23 Tex. 603:

“To entitle tbe plaintiff to a mandamus .against tbe surveyor, it devolved on him to show * * * that there was no impediment to tbe making of tbe survey. Tbis bis petition failed to show.”

Nothing is better settled in Texas than that plaintiff in error cannot substitute bald conclusions of law for essential averments of fact. Hence, be cannot be awarded tbe mandamus on tbe mere repeated statement of tbe conclusion of law that the land be wants surveyed was part of tbe state’s unsurveyed public school land.

Corpus Juris, vol. 38, under tbe title “Mandamus,” § 578 (3), p. 863, says:

“It is very generally held bad pleading * * * to allege a mere conclusion of law as •distinguished.from tbe facts giving rise to such •conclusion.”

In tbe leading mandamus case of Arberry v. Beavers, 6 Tex. 473, 474, 55 Am. Dec. 791, the court said:

“Tbe petition alleges, in general terms, that tbe -election was duly bolden, and tbe returns thereof made in accordance with tbe laws of the State, regulating elections. But when it .proceeds to specify tbe particular returns which were not received and counted, it states only that they were made within the time prescribed by law; but not that they were made in conformity to tbe requirements of law. And if it did, in terms, so state, it would not be sufficient; especially in a case of tbis character, where greater certainty of pleading is required, than in ordinary actions.. Cullem v. Latimer. Tbe pleader ought to state, not legal deductions and conclusions merely, but tbe facts of his case.”

Tbe Supreme Court refused to grant a writ of error to review tbe decision of tbe Court of Civil Appeals in the casé of Wilson v. Bristley, 13 Tex. Civ. App. 200, 35 S. W. 838. In that case, a demurrer was held to have been properly sustained to a petition seeking a mandamus to compel tbe officers of thfe town of Liberty to declare tbe result of a certain election. The petition showed on its face that tbe city bad a superficial area of 27.8 square miles. It contained no averments of fact as to whether tbe town contained more or less than 10,000 inhabitants, nor of any other facts wbicb would make valid a municipal corporation embracing tbe area stated. However, tbe petition did allege that the town was duly incorporated. In bolding tbe petition subject to general demurrer, tbe court said:

“Ordinarily tbe allegation that tbe “town bad been duly incorporated would be sufficient, on general demurrer, to show that it was so incorporated; but tbe petition shows further that tbe territory included witbin tbe limits of the town is of a superficial area extending 18,886 varas east and west, and 5,340 varas north and south, making an area of 27.8 square miles. In the absence of the allegation of facts to show that this large scope of territory was legally incorporated, it must be held that tbe allegation that the town of Liberty was duly incorporated is not sufficient, even on general demurrer, when taken in connection with tbe allegation as to the limits of the town. If tbe town was not lawfully incorporated, there was no authority to bold the election, or to have tbe returns counted and the result declared, nor, indeed, any occasion therefor.”

So here, regardless of what we might bold if tbe petition were silent after averring that the area in controversy was unsurveyed public school land, we cannot let that allegation override others wbicb, together with tbe presumptions arising from tbe facts alleged and tbe facts witbin our judicial knowledge, put tbe -land witbin what appears to be a valid grant from Spain to San Antonio.

The general demurrer having been correctly sustained to tbe petition for mandamus, it is ordered that tbe judgments of tbe district court and of tbe Court of Civil Appeals be in all things affirmed. 
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