By the action of the supreme court of the state the judgment of the court of civil appeals became the judgment of the highest court in the state to which the case could be taken, and hence the writ of error properly ran to that court. The constitutional question, although not raised theretofore, was distinctly presented in the petition to the court of civil appeals for a rehearing, was considered by that court, and decided adversely to the plaintiff in error. This court, therefore, has jurisdiction. Mallett v. North Carolina, 181 U.S. 589, 592, 45 L. ed. 1015, 1017, 21 Sup. Ct. Rep. 730; Leigh v. Green, 193 U.S. 79, 48 L. ed. 623, 24 Sup. Ct. Rep. 390; French v. Taylor, 199 U.S. 274, 50 L. ed. 189, 26 Sup. Ct. Rep. 76.
Coming to the merits, it is obvious that the act of 1852 was simply a confirmation of grants made by the Mexican states. There is nothing in it which suggests the thought of new grants or of addition to old ones. The 1st section declares that the state 'relinquishes all her right and interest in the following-described lands to the original grantees thereof,' and names the amount of land included in this grant so relinquished,-6 1/2 leagues. The 2d section makes it the duty of claimants to have surveys made of their existing grants. The third section makes provision in case of the loss of the 'original title papers of lands claimed by this act,' while § 5 speaks of 'the confirmation herein extended to the lands mentioned in this act.'
But it is contended that there was an existing Mexican land grant binding upon the state of Texas as the successor of the former government; that the act of 1852 not only confirmed the grant, but also by the 2d section provided for a settlement of its boundaries through an official survey; that this was a proposition made by the state to the claimant of the grant which, upon acceptance, as evidenced by the survey at the request of the owner and the return of the field notes to the land office, ripened into a valid contract; that when the survey was made and the filed notes returned, as required by law, it became conclusive evidence against both the state and the claimant that the land surveyed was that granted by the Mexican state and confirmed by the legislature of Texas. This argument makes the survey the pivotal fact upon which the question of contract turns. Of course, whether there was or was not a contract is a question which, in a case like the present, this court must determine for itself. Jefferson Branch Bank v. Skelly, 1 Black, 436-443, 17 L. ed. 173-177; McCullough v. Virginia, 172 U.S. 102, 109, 43 L. ed. 382, 384, 19 Sup. Ct. Rep. 134; Houston & T. C. R. Co. v. Texas, 177 U.S. 66, 77, 44 L. ed. 673, 680, 20 Sup. Ct. Rep. 545; St. Paul Gaslight Co. v. St. Paul, 181 U.S. 142, 147, 45 L. ed. 788, 791, 21 Sup. Ct. Rep. 575; Muhlker v. New York & H. R. Co. 197 U.S. 544, 570, 49 L. ed. 872, 877, 25 Sup. Ct. Rep. 522.
It will be perceived that § 2 does not name the individual to act for the state, but only designates certain officials, any one of whom may make the survey, and imposes a duty upon the claimant of causing the survey to be made. It does not prescribe the time within which the survey must be made. In fact, it was not made until seven years after the passage of the act, and the field notes were not filed until ten years after that. The purpose of the act was to enable the claimant to acquire a patent as better evidence of title, with a more accurate description of boundaries. The surveyor is not named as an agent of the state. On the contrary, an official act, that of survey, was authorized to be made at the instance of the claimant, but a mere surveyor is not, by virtue of his office, empowered to change boundaries. Those were given in the original Mexican grant, and his function was simply to resurvey, making the description more definite and certain. It could not have been within the contemplation of the legislature that this surveyor, picked out by the claimant, should have power to bind the state, by the mere matter of survey, to a grant nearly double the size of that which it confirmed by this statute of relinquishment. It must be borne in mind that the original grant was not a float,-that is, a grant of so many acres, to be located inside of a larger tract, in which the surveyor might have a discretion in selecting the particular tract,-but it was a grant by metes and bounds, and the sole function of the surveyor was ministerial,-to locate the tract and more fully describe those metes and bounds.