Legal Opinion

Burleson v. Durham

Texas Supreme Court

Decided July 1, 1876PublishedCited by 14 opinions

Error from Gregg. Tried below before the Hon. Z. Horton. April 19, 1873, Burleson sued Durham, in the District Court of Upshur county, for five hundred and twenty acres of land, claimed under a location and survey made by virtue of donation warrant Ho. 100, issued by W. S. Hotchkiss to Simon P. Ford, for six hundred and forty acres. It was alleged that Durham had cut a great quantity of cord wood on the tract, and was about to remove the same.

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Error from Gregg. Tried below before the Hon. Z. Horton. April 19, 1873, Burleson sued Durham, in the District Court of Upshur county, for five hundred and twenty acres of land, claimed under a location and survey made by virtue of donation warrant Ho. 100, issued by W. S. Hotchkiss to Simon P. Ford, for six hundred and forty acres. It was alleged that Durham had cut a great quantity of cord wood on the tract, and was about to remove the same. An injunction was obtained, restraining Durham from cutting or removing wood from the tract pending the suit. Defendant demurred, and pleaded not…

1Opinion of the Court

Gould, Associate Justice.

If Durham, at the time Burleson located the land in controversy, was not so occupying it as to give him, under the statute, the right to purchase it of the State, the mere fact that a patent was afterwards improperly issued cannot affect any rights which Burleson acquired by his location. His file and survey, if made on vacant public domain, subject thereto, gave to Burleson an equitable title, secured by all the constitutional guaranties for the protection of private property. (Wright v. Hawkins, 28 Tex., 471; Sherwood v. Fleming, 25 Tex. Supp., 408.) The case of…

2Cases cited2 opinions

  1. Styles v. GrayTexas Supreme Court · 1853
  2. Wright v. HawkinsTexas Supreme Court · 1866

3Cited by14 opinions

  1. Murphy v. JohnsonCourt of Appeals of Texas · 1932
  2. Busk v. LowrieTexas Supreme Court · 1893
  3. Turner v. FergusonTexas Supreme Court · 1882
  4. de Montel v. SpeedTexas Supreme Court · 1880
  5. Martin v. McCartyTexas Supreme Court · 1888

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