Statement of the 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 El Paso for the purchase from the State and for the survey of eighteen hundred and thirteen sections of land of six hundred and forty acres each, being, in the aggregate, one million one hundred and sixty thousand three hundred and twenty 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 first of November, 1882, he was about to proceed to have the lands surveyed into tracts of six hundred and forty acres each, when the defendant below, Telfener, offered to assume the payment thereof and to contract for the sale and assignment of his, Russ's, 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 El 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 made under the act of July 14, 1879, agreed and promised to transfer and assign to Telfener all his (Russ's) right, title and interest in the lands applied for, the consideration being twenty-five 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 five cents per acre. It was for an alleged breach of this contract that the action of Russ (the plaintiff below) v. Telfener was instituted.

Opinion of the Court.

Mr. Andrew Wesley Kent and Mr. J. L. Peeler for plaintiff in error.

Mr. Clarence H. Miller, (with whom were Mr. S. R. Fisher, Mr. E. B. Hancock and Mr. Franz Fiset on the brief,) and Mr. Joseph Wheeler, (with whom was Mr. Josiah Patterson on the brief,) 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:

No right, title or interest in the lands which Russ desired and applied to purchase passed to him solely by his application for the survey. Until that was followed by the survey, map and field-notes of the survey, and they were filed in the General Land Office of the State, it gave no right to the applicant to purchase the land.

In White v. Martin, 66 Texas, 340, the court, referring to the act of July 14, 1879, asks the pertinent question, "How may an applicant for lands under that statute become a purchaser?" and replies as follows:

"The statute answers the question. He may do so by causing the tract or tracts which such person, firm or corporation desires to purchase to be surveyed.' When this is done as the act contemplates, then and not before, the State contracts, upon the purchaser's complying with the other requirements of the act, that it will convey to him the land surveyed. When this point was reached there existed an executory contract which gave the purchaser a vested right, upon complying with his part of the contract, to have the land purchased."

In Campbell v. Wade, 132 U. S. 34, which was in this court at the October term, 1889, it was stated that it was contended in the state courts, and the contention was renewed here, that the petitioner, (who desired to purchase a portion of the unappropriated lands of Texas,) by his application for a survey, had acquired a vested interest in the lands he desired to purchase, which could not be impaired by their subsequent withdrawal

Opinion of the Court.

from sale. But the court replied that this position was clearly untenable; that the application was only one of different steps, all of which were necessary to be performed before the applicant could acquire any right against the State. The application was to be followed by a survey, and the surveyor was allowed three months in which to make it. By the express terms of the act, it was only after the return and filing in the General Land Office of the surveyor's certificate, map and fieldnotes of the survey, that the applicant acquired the right to purchase the land by paying the purchase money within sixty days thereafter. "But for this declaration of the act," said the court, "we might doubt whether a right to purchase could be considered as conferred by the mere survey so as to bind the State. Clearly," the court adds, "there was no such right in advance of the survey. The State was under no obligation to continue the law in force because of the application of any one to purchase. It entered into no such contract with the public. The application did not bind the applicant to proceed any further in the matter; nor, in the absence of other proceedings, could it bind the State to sell the lands."

There is another view of this case which merits consideration. The contract between Russ and Telfener was for Russ to sell to the latter his right to purchase from the State the entire tract of eighteen hundred and thirteen sections of its public lands for which he had applied, not for any particular portion of that tract. Telfener had never proposed to take any less than the whole amount nor contracted to do so. An offer of any less by Russ, had it been made, of which there is no evidence, would never have been a compliance with his contract with Telfener.

It does not appear that the entire tract of land was surveyed until after November 1, 1882. At that time ninety-eight sections, embracing sixty-two thousand seven hundred and twenty acres of the tract, were unsurveyed, and it could not, in truth, be alleged that on the 1st day of that month the plaintiff was the sole owner of a valuable, valid and transferable interest in the whole body of land, embracing eighteen hundred and thirteen tracts, amounting to more than a million acres of

Opinion of the Court.

On the contrary,

land, as averred by him in his declaration. he possessed no interest in the whole body of land of that amount, and if the contract for the purchase was possessed of any validity, it must have applied to the whole body in its entirety and not to any particular portion thereof. And of the land surveyed, payment at the rate of fifty cents per acre was only made on twenty-five of the surveys, at least there was no evidence of the payment on any other land surveyed. And the applicant Russ had acquired no vested right to purchase of the State the whole of the land because he had not complied with the law in that behalf.

The ninth section of that statute declared in express terms that should the applicant for the purchase of public lands fail, refuse or neglect to pay for the same, at the rate of fifty cents per acre, within the time prescribed in section five of the act, which was within sixty 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, he should forfeit all right thereto, and should not thereafter be allowed to purchase the same, and the land thus surveyed might be sold by the commissioner to any other party who would pay into the treasury the money therefor. No official survey, as it appears, was made of the whole amount of the lands which the plaintiff below, Russ, desired to purchase, and no map or field-notes of the whole amount were ever made and returned to the General Land Office, and no payment for the lands was ever made or tendered to the treasurer of the State. The claim therefore of having acquired any right or title in and to the whole amount of the lands by the proceedings taken was manifestly groundless. The plaintiff below could not convey any proprietary interest in the whole amount of the lands desired until the required payment therefor was made, and any promise by the defendant below, Telfener, to pay to him twenty-five cents, or any amount, for an acre of such hoped for, and not acquired, land or for any less quantity was worthless, without any value or consideration. The plaintiff below, however, pushed his claim for the compensation of twenty-five cents an acre, which, not being recognized, he brought an action against Telfener

Opinion of the Court.

to recover the same and for the surveys and the return and filing of the same and the map and field-notes in the district court for the county of Travis, in Texas. The defendant below, Telfener, appeared to the action, and on his motion it was removed to the Circuit Court of the United States for the Western District of Texas. He then answered the petition, denying its allegations, and averring that his pretended agent, one Baccarisse, through whom Russ alleged the contract was made, never had any authority to make a contract of the kind, and that Russ never acquired by his applications any right or interest in the land, the right to purchase which he claimed to have sold to the defendant, the survey, map and field-notes never having been returned to the General Land Office as required by the third section of the statute of Texas, and he never having made or tendered any payment for the same as also required by that section, and that any interest thus acquired was without any tangible or appreciable value.

The case was tried in the Circuit Court of the United States at Austin, Texas, and a judgment therein was rendered in favor of Russ against Telfener, the plaintiff in error, in July, 1893, for the sum of $518,440.50.

The latter thereupon took the case on writ of error to the United States Court of Appeals for the Fifth Circuit, where the judgment was affirmed in February, 1894.

He then filed a petition for rehearing in the Court of Appeals, which was overruled in May, 1894, and the case was afterwards removed into this court on petition of the plaintiff in error upon a writ of certiorari in October, 1894.

The plaintiff in error now submits, upon the writ of certiorari from this court, that there was manifest error in the rulings of the Circuit Court of Appeals requiring the reversal of its judgment, in this:

First. That the law of Texas expressly restricted the right of the applicant to purchase any portion of the unappropriated public lands of the State to six hundred and forty acres in one tract, and in this case the plaintiff claimed, and the Court of Appeals sustained his claim, that he had acquired a

VOL. CLXII-12