Petitions for rehearing of a case decided March 30, 1896,
162 U. S. 162
170, are denied.
Two petitions for rehearing were received.
MR. JUSTICE FIELD delivered the opinion of the Court.
It is firmly established that the State of Texas cannot, in
opposition to its wishes, be compelled to accept an office survey
constructed by merely copying and adopting the field notes of a
previous survey made on the ground, for other parties, by other
surveyors, and that such office surveys are not sufficient to
enable a purchaser to enforce an executory contract for the sale of
public lands under the Act of July 14, 1879, as amended March 11,
1881. Bacon v. State,
2 Tex.Civ.App. 692, and cases
We adhere to the ruling that error was committed by the circuit
court in the manner in which this matter of the necessity of
surveys on the ground was left to the jury. We also intimated that
it seemed, from the evidence, so far as before us, that the surveys
in this instance were not in fact made on the ground, but that was
not essential to the decision.
Some expressions in our former opinion implying that payment was
a prerequisite to recovery are complained of. What we intended to
say was that, under the pleadings and on plaintiff's contention as
it seemed to be pressed, it was necessary that he should show that
he had so far complied with the law as to have obtained a vested
right to patents as against the state on making the required
payments in the required time, and this we thought he had failed to
do as to all the tracts, it being borne in mind that each tract
must be treated
Page 163 U. S. 101
as a separate purchase under the statute, as held in Bacon
v. State, supra,
though this contract, as between the parties,
was an entire contract for the transfer of rights in the many
tracts necessary to make up the agreed number of acres.