
    I. R. Lewis v. J. H. Durst and others.
    The instructions of the Commissioner of the General Land Office to the surveyors became a pare of the law regulating the subject-matter to which they referred.
    It was not and is not sufficient, in general, in order io secare a particular piece of land, to go to the proper surveyor and point out the land, and deposit a certificate, taking a receipt descriptive of the land and of the certificate; but the locator should seo that a proper entry is made by the surveyor, according to the instructions of the Commissioner of tho General Land Office, in a book of files or entries kept for the purpose, and should then see that the survey is made and returned by the deputy surveyor to the principal surveyor within a reasonable time. (Note 77.)
    Where it. was proved that the deputy surveyor wa« dead, and that he never returned to the principal surveyor any book of entries or files, and it was not proved whether he kept any such book, it was held that a location could not be proved by a receipt of the deputy surveyor for the emitiente, which was descriptive of the land to be surveyed.
    Where there is no office evidence of a location, nor any act of notoriety from which notice could be presumed, it cannot, after the lapse of a reasonable time for the survey without any survey being made and returned, claim a preference over a subsequent location, the subsequent location being unaffected with notice of the prior claim.
    Appeal from Mfaeogdoehes. The plaintiff alleged in his petition that lie, on the 20 o£ October, 1S38, being the owner of a league of the head-right certificate granted in Matagorda county to Joseph Yeaman, jilaeed the same in the hands of Janies Bradshaw, a deputy surveyor in the Nacogdoches district, and designated and required said Bradshaw to survey for him'a league of lamí in said district, which he alleged lie point ed out, and which was described by a receipt given him by said Bradshaw, in the following words, viz : “Iteceived “of I. it. Lewis a certificate for a league and labor of land, granted by the “Board of Commissioners of Matagorda comity, on the 20th day of March, “1838, to one Joseph Yeaman, one labor of which has been located, and (lie “league .yet unlocated ; and the said Lewis, as the assignee of the said Yea-“man, points out for location one league of land, on the Angelina river, adjoining and below the tract of land purchased by the said Lewis from Mr. “John Durst, and between the lower line of said land and down to the old “Mansola road, and running back from the river for quantity. Comity of “Nacogdoches, October 2d, 183S. James Bradshaw, Deputy of Nacogdoches “county.”
    The plaintiff also alleged that the defendant, Durst, filed upon and had the same land surveyed in 1840, with a full knowledge of plaintiff’s claim, &c. The defendants demurred to plaintiff’s petition; denied the allegations of the petition, generally, and set -up claim to the land under Burst’s location and survey made in 1S40. The demurrer of defendant was overruled by the court, and the parties went to trial. The plaintiff, to prove liis file upon the land sued for, offered to read in evidence the receipt given to him by Bradshaw for said certificate, which was objected to by defendant’s counsel, which objection was sustained by the court. A. A. Nelson was then called, who proved that James Bradshaw was a deputy surveyor in Nacogdoches county from 1838 until September, 1S40; that be was dead; that lie never returned any lile book to the county surveyor’s office; that his time expired on the, first Monday in September, 1840, and that the land in dispute was wltliiu his district; that he, witness, was county surveyor of said county, and had been ever since September, 1S40. It was not proven that there was any evidence of plaintiff’s file upon or claim to the land in controversy in the county surveyor’s office ill 1840, when Durst filed upon and had the land surveyed.
    Solomon Harkins, a witness for plaintiff, swore that he had known the parties aud the land in suit ever since 1S3S ; that the laud was known and called in the neighborhood ever since 1S38 Lewis’ laud; that Durst admitted to him that lie knew Lewis claimed the land when he filed on it and had it surveyed, and also that Vansicklc had Lewis’ certificate, with orders to survey the land in dispute under it at the time Durst induced said Yansiekle to survey it for him; that lie learned this from a conversation lie had witli Durst in the spring of 1840, &c. John Durst swore that he was acquainted with the general character of the witness, Ilarkius, and that lie would not believe him upon liis oath. John S. Thorn and Rinaldo Hotchkiss proved the same. Benjamin A. Vansickle proved that lie made the survey of the land in question for James II. Durst, (defendant,) under Joseph Dnrst’s head-right, at the request of the said James Bradshaw and said James II. Durst; did not recollect whether or not lie had Lewis’ certificate in his hands when he went down to survey for Durst; that lie afterwards had it, and Bradshaw told him to survey it after lie had made said survey for Durst, aud that Lewis wished it surveyed somewhere down in the same country, but lie did not know where, but that John Durst or Joseph F. Lewis could tell him where Lewis wished it surveyed ; that lie called oil said Joseph F. Lewis, who refused to pay him for surveying plaintiff’s certificate, and lie had nothing more t.o do with it.
    The defendant set up claim to the huid under said survey made for James H. Durst, 1st August, 1849, by virtue of said head-right of said Joseph Durst, father of James H., which was recommended as genuine, &c.
    To prove his upon the land plaintiff produced the receipt ofJames Bradshaw, Deputy Surveyor, &c., a copy of which is given in the record, and offered to read it to the jury.. Defendant admitted its execution,
    
      but objected to its being read to tlie jury as evidence of title, wliicli objection was sustained by the court, to which plaintiff excepted, &c. Tlie plaintiff read tlie certificate under which lie claimed the land to the jury, and also proved that it had been recommended as genuine and legal, &c.; also proved the location of the Mansola and lower line of a tract of land sold by John Durst to plaintiff.
    U¿oii the trial the judge charged the jury that, in order to give the plaintiff a right to the land sued for and to entitle him to recover, he must have proven' that he or some oue for him made some memorandum or entry in writing of tlie entry or location claimed by him, which writing or memorandum must have been kept by the deputy surveyor in his office, in which memorandum he must have designated with reasonable certainty the laud which he intended to appropriate and set apart from vacant domain. To which charge of the court the plaintiff excepted. Verdict and judgment for defendants.
    The first assignment of error was to tlie decision of the court below in ruling out the receipt of Bradshaw, the deputy surveyor, for the certificate of plaintiff pointing to the land plaintiff' wished surveyed under it.
    The second assignment was to the charge of the judge.
    
      Jennings %■ Ardrey, for appellant.
    This action was brought under the 23d section of the act of limitations of 1841, (Hart. Dig., art. 3231,) which provides “ that all certificates for headlights, land scrip, bounty warrant, or any other “ evidence of rig-lit to land recognized by the laws of the government, which ‘‘have been located or surveyed, shall be deemed and held as sufficient title “to authorise tlie maintenance of actions of ejectment, trespass, or any “ other legal remedy given by law.”
    The plaintiff's title consisted of a headlight certificate, issued by the Board of Land Commissioners of Matagorda comity to one Joseph Teaman for one league and one labor of laud, and transferred by the said Teaman to plaintiff, and tile certificate of the County Court clerk of Matagorda county that tlie said certificate of Teaman was recommended for patent by the commissioners appointed under the act of Congress approved 20th January, 1840. Tlie next step in the progress of plaintiff's title was, according to the provisions of tlie statute above recited, a location made by him of the land- in controversy on the 2d October, 1838; and it is admitted that plaintiff has never had a survey upon (lie said tract of land by virtue of Lis certificate. This, then, leads us into tlie inquiry of wliat tlie Legislature meant by the term “ location.” The 0th section of tlie act of Congress, 14th December, 1837, (Hart. Dig-., art. 1S45,) provides that there shall he elected a county surveyor, whose duly shall he, &c., to examine all field-notes of surveys which have been or may hereafter be made in said county and upon which patents are to be obtained, and shall certify tlie same under his hand to the Commissioner of the General Laud Office, after having recorded the same in a book to be kept by him for that purpose. He shall also appoint as many deputy surveyors as he may deem necessary for tlie comity, and shall administer to them tlie oatli of office and take tlie bond hereinafter prescribed, and shall furnish them such instructions as may he fm-nislied him from time to time by tlie Commissioner of tlie General Laud Office. Article 10th of the same law provides that it shall he the duty of each deputy surveyor to administer an oath to eacli individual employed by him as a chain carrier or marker for the faithful performance, &c. These two sections of tlie land law provide that the comity surveyor shall examine and supervise the labors and work of tlie deputy surveyors, and keep a record of tlie surveys that the deputy surveyors shall make ; hot it nowhere requires or even permits him to make any surveys himself. The deputy surveyors are tlie officers who arc required to perform all the duties of practical surveyors; and, in fact-, county surveyors, under the act of 29th December,' lS37. (Hart. Dig., art. 18SS,) cannot, in any instance, perform the duties of practical surveyors without tlie consent of tlie Board of Laud Commissioners of his county. Among the duties also of tlie county surveyor is the one of furnishing to deputy surveyors such instructions as may be furnished him by the Commissioner of the General Laud Office. The 17th section of the general land law (Hart. Dig-., art. ISOS) provides that every certificate of claim to land which lias been or may he obtained in the manner and form herein prescribed shall be suiiiciont to authorize any lawful surveyor to survey for any person holding such eertilieate any lands which he may point out, agreeably to all the laws which do now or may hereafter exist on the subject.
    On the 2d February, 1838, the Commissioner of the General Land Office, John P. Borden, issued the following- letter of instructions: “To the county surveyor for the county of Nacogdoches. Sir: Having been informed that in “ some counties difficulty had arisen in regard to the application for survey of “the same laud by diil'eront persons in consequence of the plan adopted by “ the county surveyors, I consider it my duty to give you some general instrne-“tious upon that subject, and I trust that you will particularly respect them. “You will assign to each deputy surveyor a portion of your county, in which “no other will he allowed to survey. Each deputy will keep a small hook, in “which he will note the names of the persons applying to him for surveying, “the date of the application, and, so far as possible,' the precise location of llu; “land; but in uo case whatever to make said entry without taking into his “ possession the corresponding certificate. The district assigned to each deputy “surveyor should bo described, as far as circumstances will permit, by “ natural boundaries. Each certificate upon which land has been surveyed in “your county must he returned to yon with the field-notes — all of which “being examined by you, must be delivered over to the president of the board “of land commissioners, who will forward the same to this office for a patent. “As many persons may wish to locate their lauds in two different counties, “and as the law does not provide for the claimant to receive more than one “certificate, you will instruct your deputies in such ease to indorse upon the “ back of the certificate issued by any board of land commissioners the amount “of laud surveyed; in evidence of which, also lake a certificate from every “such person, stating therein the laud surveyed, the number of the original “certificate, the county in which it was issued, and the full amount of'land “therein called for, which certificate will be returned to you with the iiold- “ notes of the survey, and by you to the president of tire board of land “commissioners of your comity. Yours, very respectfully, Juo. P. Borden, “ Commissioner General Laud Office.”
    Under the laws and instructions of the General Land Office, which we have recited, all that was and is required of the holder and owner of a certificate of claim to land, recognized by the laws of the Government, to do, in order to have an appropriation of the vacant domain to his claim, is to present his certificate to the deputy surveyor, and to point out the vacant laud that he wishes to have surveyed by virtue of ills claim, and to surrender the possession of his certificate of claim to land to the deputy surveyor. The deputy surveyor is required to keep a small hook, in which" lie will note the names of the persons applying for surveying, the elate of the application, and, so far as possible, the precise location of the land, but, in no case whatever to make such entry without taking into possession the corresponding cerliiicate. This, then, is'wlmt the Legislature is understood to have meant by the use of the term “location,” which, in law, is made of equal dignity with a survey, for the purpose of maintaining the action of trespass to try title.
    Then we consider the question raised by the assignment of errors, .whether the evidence which the plaintiff offered, as sustaining- his allegation of location of the land sited for, was admissible to prove his prior location of the land to that of the defendants. From the hill of exceptions presented by the record it appears that the plaintiff offered to read to the jury the following instrument or document: (See statement of facts for Bradshaw’s receipt.) Previous to the oiler of this testimony by the plaintiff lie proved by A. A. “Wilson that James Bradshaw was dead, and that lie did not return his file book to the county surveyor’s oflice, and that lie was a commissioned deputy surveyor for the district of Nacogdoches county lying- south of the San Antonio road and between the rivers Angelina and Noches, in March, 1S38, and that liis appointment expired on the first Monday in September, 1840, and that the land in dispute was within that district of territory. The signature of James Bradshaw was admitted, and the copy was substituted in place of the original by agreement of counsel of defendant. The parties’ counsel having- admitted the signature of James Bradshaw, and waived the necessity of the production of ihe original instrument made by James Bradshaw, and agreed that the copy should be a substitute for the original, the question arises whether the original is admissible evidence for the plaintiff under the pleadings to prove title by location to the land sued for. Prom the statement of facts, it appears by the testimony of A. Wilson, county surveyor, that Bradshaw never returned to his office his lile book. (And it does not appear by any testimony that lie ever professed to or did keep a particular book for files and locations, or that lie had. any file book of any particular form.) The presumption of law was that he did keep one, but that presumption does not suppose it to be in any particular form, or that it was not kept in separate slips and pjeces of paper kept in a package with the certificates required to be deposited with him. The instructions of the Commissioner of the General Land Office required that the holders of certificates should always deposit them with the deputy surveyor before they wore permitted to make any locations or entries; and from the indorsement which is found on the certificate itself made by Bradshaw, it warrants the conclusion that the entry in this case was made upon this slip of paper, and that it was filed away with the certificate, as the note or memorandum required of him, to be kept in his office; that the certificate (meaning Teaman’s certificate) ‘‘came to hand July or August, 1S3S, James Bradshaw, “deputy surveyor for the district surveyor for the district between the Angelina and Neelies to the San Amonio road.” We can perceive that James Bradshaw was not an accurate man in the transaction of liis business, else he would have been particular enough to have placed the exact date as to the time when the certificate came to hand. AVe know, from the circumstances of the transaction, that Lewis placed the certificate in Bradshaw’s hand for survey sometime in July or August, and from the instrument offered in evidence, dated on the 2d October, 1838, and found with the certificate at the time of trial, we can account for it that when Lewis wanted to have liis certificate surveyed lie went to Bradshaw and designated or pointed out the land in controversy, and that it was then found that Bradshaw had not made the indorsement, and that it was made at the time of making the entry or written memorandum, and that then this slip of paper or instrument now offered was placed with the certificate, and intended as part of the same transaction, and au act in compliance with the instructions of the general land office. This supposition makes the instrument now offered the only entry or location that was made by Bradshaw. The cerlificate was in Bradshaw’s hands before there was a pointing out of the land by Lewis, and when Lewis came to make the designation of the land that lie wished to have surveyed on tile 2d October, 1838, Bradshaw then made this as the entry. If this'is a correct conclusion from the fact, it was certainly admissible as evidence to go to the jury to prove a location foi; plaintiff. AVhelher it proved a location of the land was for the jury to determine, after they had been charged by the court as to what in law constituted a location sufficient to maintain the action of trespass to try title; and in rejecting it the court erred, because it was deciding upon the weight of testimony, and that the instrument offered as evidence was not a location.
    The counsel understood that the refusal to admit the instrument offered as ail entry or location, or (receipt of James Bradshaw as it was termed,) was founded upon the opinion entertained hy the judge helow that in order to maleo a sufficient location or entry or pointing out, within the meaning- and intent of the statute of 1841, to maintain the action brought the locator Lewis was required to make or cause to be made (by some agent or attorney for him) soma memorandum in writing- of the entry or location, which must be kept by the deputy surveyor in his office to perpetuate the locator’s right to the land, and that lie had appropriated and set apart from the vacant domain, and that the memorandum in writing, so made by the locator must be kept in a small book by tlie deputy surveyor in his office as required by the commissioners’ instructions ; and that tlie instrument offered was nothing- but a mere memorandum of the deputy surveyor, which did not make it amount to a location or entry within the meaning and intent of the law of 1841, and was not sufficient to give it the dignity of ii location sufficient to maintain the action of trespass to try title. By the 17th section of the land law of 1837, it is provided that any certificate of claim to land which has been or ma}' hereafter be obtained, in the manner and form herein prescribed, shall be sufficient evidence to authorize any lawful surveyor to survey for any person holding- such certificate, (any land which he may point ont) agreeably to all tlie laws which do now or may hereafter exist on that subject. In this section tlie mode and manner of pointing out the vacant domain is not prescribed; nor does the law require that it shall be done in any particular form to be valid, and to give a party a right to have a particular portion of the vacant domain against others holding claims against the government for a portion of that domain. If writing hail been thought a material requisite to perfect the rig-lit of appropriation against others in "the estimation of the legislature, they would have required it. In the absence of any law on the subject, then the custom of the officers of the government employed in the distribution of the vacant domain, in satisfaction of recognized claims against it and what is generally known to the citizens, would be a sufficient authority to sustain a right of appropriation; and if the custom of the officers of that department of the government entrusted with tlie public business had established that a verbal pointing out to a deputy surveyor was an appropriation, then it would 'be good aiuTbinding upon the government and all persons within the operation of the custom." In tlie absence however, of express law on the subject, the legislature has permitted tlie Commissioner of the General Land Office to make rules and regulations on the subject in the form of instructions to the county surveyors and their deputies, which have tlie same force and effect as positive law for the regulation of the rights of par-ties to tlie appropriation and distribution of the vacant domain. For the purpose of protecting rights and that of order and arrangement in the distribution of the vacant domain between claimants, holding recognized claims against the government, the Commissioner, on the 2d February", 1838, issued the following instructions : (See statement of facts.) This is all the law or instructions that exist on the subject of locations or entries bearing upon this cause; and it nowhere requires that they shall ho in writiug signed by the party, locator or his agent. The instructions of the Commissioner are directory to the officer; and'if they are not strictly complied with, it would not defeat tlie locator’s right of appropriation as against any claimant, particularly if that claimant knew of tlie existence of the lile of his certificate in the hands of the deputy, and that it was to be surveyed upon particular land. (Craig v. Rad-ford, 3 Wheaton, 594.)
    From the statement of facts it appears that Bradshaw only made some live or six surveys within his district, and it is not to be presumed’that ho paid much attention to the requirements of tiie law or instructions. For these reasons, we think, tlie court erred in rejecting- the testimony upon the opinion entertained by the judge, and that on this ground tlie judgment jnn.-t he reversed and a new trial granted. (See Bullock v. Wilson, 2 Fort., 43G; 2 United States Digest, sec. 211, p. 720; Ewing v. McKnight, 1 Scrg. & R., 128; 2 United States Digest, sec.. 2-13, p. 721.)
    
      With regard to the second assignment oí error, the charge of the court was: “That to entitle the plaintiff to recover a verdict he must show that the “ locator made or caused to be made some memorandum in writing of tlie entry “or location, which must be kept by the deputy surveyor in his office, to “ perpetuate his right to the land that he had appropriated, in which memorandum he must designate with reasonable certainty the lands which the “locator intends to appropriate and set apart from tlie vacant domain.” This charge must he understood to be in reference to the state of facts before the court. The commissioner’s instructions, under date of the 2d February, 1838, were produced and were before the court, and the instrument upon which the plaintiff relied as his evidence of location had been rejected .upon going to the jury. By those instructions to the county sniveyors, it will be seen that he directs that “Each deputy will keep a small book, in which he will note the “names of tlie persons applying to him for surveying, the date of the applica- “ tion, and so far as possible tlie precise location of tlie land; but in no case “ whatever to make such entry without taking into his possession tlie corresponding certificate.” The 17th section of tlie general land law provides that the holding a headlight certificate is sufficient evidence to authorize any lawful surveyor to survey for any person holding such certificate any lands which he may point out, &c. The pointing out of any laud that is vacant by any person holding a certificate authorizes the surveyor to make a survey of it, is the act required to be done by tlie holder of tlie certificate by this law; and, under it, the charge of the court cannot be sustained. The statute does not prescribe how or in what manner the pointing out shall be made by tlie locator; and under that act any open, public, and notorious act of the holder of the certificate, indicating to the surveyor an intention to have a particular tract of . land surveyed, in satisfaction of his certificate, is clearly sufficient in law; and tlie court cannot under tlie statute say that no other form of pointing out shall bo sufficient but that of “ makingor causing to be made some memorandum in writing “of the entry or location,'which must be kept by tlie deputy surveyor.” Then, do the commissioner’s instructions require of the locator that he “shall make “some memorandum,” &c.? Upon a literal comparison, of tlie charge of the court with those instructions we find that the error consists in the judge requiring of tlie locator to do that which tlie surveyor was required to do. The presumption of law is that the surveyor has done his duty, substantially in compliance with tlie law, and that the document which the plaintiff produced but the court rejected was the entry or location required of tlie deputy under those instructions. If then the charge of tiie court was erroneous the case should be reversed, unless from the statement of the facts it should appear that the plaintiff cannot adduce title sufficient to sustain the action. This, we think, tlie plaintiff has doue. (Bullock v. Wilson, 2 Tort-., 43S; 2 U. S. Digest, sec. 211, p. 720; Ewing v, McKniglit, 1 Serg. & R., 128; 2 U. S. Digest, sec. 243, p. 721.) -
    
      I. P. Henderson, for appellees.
    We contend that the court acted properly in refusing to allow the receipt of Bradshaw to the plaintiff for the certificate to be read to the jury as any evidence of his right to the land sued for. That paper could siiow no fact which would tend to prove that plaintiff had any right to the land by virtue of a location upon it at tlie date of the receipt. Tt was a mere memorándum between the deputy surveyor and plaintiff, given to plaintiff by Bradshaw for plaintiff’s own private purposes; it could give no sort of notice to the public of the appropriation of the land in dispute, and only served as proof against Bradshaw to hold him individually liable to plaintiff for tlie certificate'filed. Moreover, plaintiff used no sort of diligence in perfecting his file by having the laud surveyed. He allowed nearly two years to ehvpse before Bradshaw went out of office without taking any further step to secure the land, and after Bradshaw went out of office lie caused no memorandum to be'made by any one to show lii.s claim to the land; and it seems from the testimony of Vansickle that Bradshaw himself did not know, where Ílaintiíf wished the certificate located, hut referred him, Vansickle, to Joseph F. ,ewis siurt John Durst for information in regard to plaintiff’s wishes, as appears from the statement of facts.
    The instructions of tiie Commissioner of the General Laud Office to tiie surveyor of Nacogdoches county, which were read to the court, dated 24th February, 183S, and which were given in pursuance of the 9th section of tiles land law of tiie 14th December, 1837, and are a part of that law, require, each deputy surveyor to keep a file hook, in which lie was required to enter all files made with him, with the proper dates, description of the land, &c. It was the duty of plaint ill'to make his file in pursuance of that law, and to prove by that book that lie filed upon tiie land claimed by him at the time and in the manner alleged in his petition. lie did not do so. lie shows by his petition that the only evidence of his file is the receipt set out in said petition, and upon which lie solely relied to prove his designation of the land claimed by him. The object of keeping tiie file book wlficli deputy surveyors were required to keep, was, as is declared in tile instructions, to prevent confusion ; it was intended to give notice to those who wished to locate of what was appropriated and what was vacant.
    But if the file claimed by plaintiff bad have been entered in a file book it could not have held tiie land against a subsequent locator, as it is now sufficiently definite. It does not point to the side of the Angelina river, where tiie plaintiff wished tiie survey made, and points no beginning corner, and to no place sufficiently notorious or certain. (See Wilson v. Mason, 1 TJ. S. Cond. K., 242, and notes to same ; the same at 253, 254.)
    If there was any error in the judge’s charge to tiie jury, I have not been able to discover it, or even to see a point in it upon which a doubt can rest.
    We insist that tiie plaintiff had no right to recover in this ease upon tiie bare certificate, and lile under which he claims the land, even if that file had been legal. This suit was brought to recover.tlie possession of the land, &c., and although, under the 23d section of the act of limitations, approved February, 1841, (Ilart. Dig., art. 3231,) any claimant may maintain an action of trespass for tiie recovery of lands upon a genuine certificate, <&c., which lias been “lo-“cafed and surveyed,” yet we insist that tiie plaintiff cannot recover in this ease, because lie did not show that lie brought himself within tiie provisions of that act. It seems clear, from the terms used, that the Legislature intended ‘'location” and “survey” to be understood as meaning tiie same tiling, and to distinguish them from bare “files.” Intending to charge,the common-law rule ami allow a claimant to sue for the land lie' liad had' actually surveyed, without having a patent for tiie same. By the survey tiie boundaries would be clearly defined by established lines and corners. No case could perhaps more plainly illustrate the propriety of this construction of the section referred to, especially when tiie vagueness of tiie file relied upon is considered. The hare file upon land which the holder of a certificate makes with a surveyor is the act of tiie owner of the certificate. The survey or location is the act' of an officer of tiie government, and it cannot be well presumed that the Legislature intended to put it in the power of an individual, by ids own act, to create a title for himself to public domain sufficient to authorize him to maintain an action of ejectment upon.
    
      Jennings fy Ardrey, in reply.
    1. The first point insisted on by the appellees is that tiie document rejected by tiie court was a mere private paper between Bradshaw and Lewis; to which we rejoin that it does not make that appearance on the record. It is admitted to be a true copy of a genuine origina], signed by James Bradshaw, Deputy Surveyor, &c., and, in its terms,' that original appears to be the very memorandum of a location or entry which appellant seeks to establish. It is not a mere certificate of a past transaction, but is a present tense record, in its terms, of tilings then (lone. In what other language, substantially, would or ought a surveyor to have made such an entry or 'memorandum'? It first states or acknowledges the deposit, with him, for location, of the land certificate, which conforms to the instructions requiring him to receive no entry and make no survey without taking into bis possession tin; corresponding certificate. It there records in the present tense tlie specification of tlie land pointed out by Lewis, &e., &e. But even if we are mistaken in lilis view, and tlie document in question was a mere certificate of tlie facts it slates, it is still, in its terms, a copy of a written entry, officially given by tlie proper officer having charge of tlie original, ami, under the authority cited in our former brief, ought, after the preliminary proof of the death of Bradshaw and tlie non-return of tlie. file-book to tlie county surveyor’s office, or other written memorandum of files by him, to have been admitted in evidence, at least for whatever it might have been worth.
    2. In aid of this evidence, if it had been admitted, we showed by defendant’s witness, Yausickle, that lie received the certificate in question from Bradshaw at the proper time in the memorandum indorsed as the proper date that it liad been filed with hini officially by Lewis for the location; and by Ilaskill that it was well known before the date of Burst’s file by the latter, and generally to have been located oil flic land in question; which authorizes two conclusions : 1st, that we liad a prior location, as claimed by us, and, secondly, that Durst had notice of it before tlie inception of his claim.
    3. The argument of the appellees does not sustain tlie charge of (he court. It does not attempt to do so. That charge requires two tilings, botli plainly not required by iaw, of locators, 1st, that their pointing out or specification of land for survey must be in writing, and, secondly, that those claiming tlie benefit of the locations are responsible for tlie preservation by tlie surveyors of the papers containing those written designations, and perhaps, also, for their keeping some file book or some other written memorandum or memorial of files, <Sic., and this without regard to notice of their prior locations by and to subsequent locators.
    4. It is also urged by appellees that our entry or location is bad for want of certainty in the designation of the beginning corner, and tills exception is based upon the failure in tlie designation to state on which side of the Angelina river llu* land lies. This objection rests upon a want of attention to tlie proof aliunde of tlie certainty of Lewis’ calls. 1st. That his land lies oil Bradshaw’s surveyor’s district, which is shown by Nelson to have beep bounded by the Angelina on one side and the Neelies on the other. 2d. That it is between a certain well known John Durst tract, and tlie Mansola road, which are shown to have been on the Noches side of the Angelina road, &c. But tlie objection is not material in the discussion of the propriety of the rejection by the District Court of Lewis’ paper evidence of location. It would have been folly in appellant, after tlie rejection of that paper, to have proceeded to adduce proof to show that its calls were reasonably certain, &c.. and lie made no such attempt. Tlie proof of that character which is in the record was evidently offered for other purposes; that is, to lay the grounds for the admission of this document and to establish a parol designation and file.
    5. We do not deem it necessary to discuss the point suggested by appellee upon tiie 23d section of the act of limitations. Onr right to recover, so far as tiiis point is concerned, lias been too long settled in practice to bo now questioned.
    WHEELER, J., having been of counsel, did not sit in this case.
   Lipscomb, J.

The only points presented by the .record in this ease, dee,mod oí sufficient importance to be discussed by us, arise on the exception to (lie charge of the judge on the trial in the court below, and the ruling- out of the receipt of Bradshaw", offered in evidence by the plaintiff.

The charge of the court excepted to is substantially as follows, i. e.: “ That “ the only legal evidence of a location sufficient to maintain the action of tres- “ pass to try"tille was some entry, memorandum, or other writing made by an “ applicant for vacant land in a memorandum, or file book, required to ho kept “by virtue of the instructions of the Commissioner of the General Land Office “ to county surveyors, a copy of which was submitted to the jury.”

The material part of the instructions referred to is: “ Each deputy will keep “a small book, in which he will note the names of persons applying' to him for “surveying, the date of the application, and, so far as possible, the precise “location of the land.” That the Commissioner of the General Land Office h.ad authority, under tire law creating his office, to prescribe the regulations cited, is conceded; and that when so prescribed they become a part of the law regulating the subject-matter to which they refer there can be no doubt.. (Peacock v. Hammond, 6 Tex. R., 544.) It is believed to be well settled that to make a valid location or entry, it should be attended with such circumstances and facts of notoriety as would furnish a person of ordinary diligence notice that the land had been located. This is the rule believed to prevail whore the mode is not particularlypointed out by express law. (Wash. C. C. R., 81; 9 Wheaton, 673; 1 Wheat., 730; 2 Wheaton, 266; 8 Peters, 75.) When the land has been surveyed'the marked lines would- give something to put a subsequent location upon. If, however, the land had been surveyed,’ but not returned to the office of the county surveyor, after a lapse of so much time, it will be presumed to have been abandoned. The locator will not be permitted to hold a preference and keep out other locators after a reasonable time for Ills survey to bo made and returned to the same office. But a verbal application only to the surveyor, conlined to the knowledge of the applicant, and the surveyor, would give no notice, and would leave it in the power of the surveyor and locator f.o commit fraud on the rights of others entitled to locate lands. It was to prevent evils of this kind and the controversy that would arise between locators from vague and undefined locations that the regulations cited were ordained by the Commissioner of the General Land Office.

By the. above regulations those wishing to locate laud had no difficulty in ascertaining whether (.lie land they might wish to locate upon had been previously located. They had only to look to the file book in the office of the surveyor. And tiffs very case demonstrates the propiiety and even the necessity of such regulations and the insufficiency of a reliance on the memory of the surveyor. The evidence of Vaneickle proves that the surveyor had forgotten the plaintiff’s designation, and when directing the survey to be made for him said “ the plaintiff wished it to be surveyed' somewhere down the river, and “that John Durst or-Lewis could say where.” We do not wish it to be understood that under no circumstances could a location be sustained by any other evidence than that to be furnished by the observance of the regulations prescribed by the Commisiouer of the General Land Office, but that the proposition contained in the charge of the court, as a general one, is true. And as applicable to the facts before the court it was true, because there is no evidence that the subsequent locator had any notice from any source whatever that the land had been previously loeated, nor that Wolf, the purchaser under him, liad notice; ancl he must therefore be regarded as having made his location and survey unaffected by the notice of any prior designation. If the plaintiff iias loot his preference, it is from his own negligence in not having his own location made in such way as would have given notice of his preference. He ought to have taken means to have it surveyed and returned to the surveyor’s office.

To the argument of counsel for the appellant, that he cannot, with justice, suffer from the default of the surveyor in not making a written memorandum of the location, it may be answered that it is a well-known rule, that where a loss is to fall on one of two innocent persons, it is placed on the one who is most in fault, for not having used the necessary precautions to prevent the result. And there can be no question that the plaintiff did not use all the means in his power to prevent any misconception as to whether the laud in controversy had been designated by him. Besides his failure to furnish the evidence contemplated by the regulations cited, he was chargeable with great negligence in permitting the land he had designated to remain two or three years without being surveyed. Had he used only ordinary diligence he could have had tlio fault of the surveyor, whether it had arisen from his having forgotten the designation made by the plaintiff, or from an inattention to and disregard of the performance of his duty, corrected long before tire defendant’s location.

And it may further be said that lie is not remediless, if the fault was with the surveyor, and the law seems to have anticipated just such a ease. In the latter part of the article 1090, (I-Iart. Dig.,) will be found the following provision : “And any surveyor neglecting or refusing so to do, or failing or refusing to survey any lands the holder of a legal certificate may point out, within “a reasonable time, or surveying such lands so designated for any other per“son upon a certificate subsequently presented, shall be liable for all damages sustained by any person on account of such default,”

The conclusion we have arrived at is, that as the location sued on by Lewis neither furnished office evidence of its having been designated, nor was supported by any act of notoriety by which uotice could be presumed to advise ot-lior persons of the designation, it is not such a location as can claim a preference over a subsequent location after such lapse of time without any survey having been made and returned on it, the subsequent locator being unaffected with notice of the prior claim.

To proceed to the second point proposed to be discussed. The receipt purports to be signed by Bradshaw, as surveyor, and sets forth that he received the certificate, and the designation of the laud to he surveyed under it, and had it been such a paper as "the law required him to give when a certificate was placed in his hands to be located on laud designated by the owner of the certificate, it would have been admissible. But the law nowhere requires the surveyor to give such receipt, nor is it made evidence of a location. It appears to be a private paper, belonging to the appellant only, and it does not appear that any body else had a knowledge of its existence. In a suit between the appellant and the surveyor, under the provisions of the statute last cited, it would liave been evidence against him, but could not be received against any one else, and it was, we think, properly rejected by the court below. We believe the judgment ought to be affirmed, and it accordingly is affirmed.

Judgment affirmed.

Jüoie 77. — Williamson v. Craig, post 437; See Wyllie v. Wynne, 26 T., 42.  