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Transcribe page 7 of 21
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to purchase, and asking for a cancellation of the contract of 1930 between the state and appellee. Upon hearing, where testimony was taken, the then Commissioner, Hon. Frank Vesely, did modify and amend the contract to purchase by taking from the area theretofore contracted to be sold to appellee, sufficient land to provide right-of-way for a pipe line, and including the damn site area, but refused to find fraud was involved. There is no suggestion in the record before the Commissioner, including his findings in the matter, that there was a wilful mis-statement of facts concerning appellant's improvements. The trial court likewise found appellee exercised entire good faith in endeavoring to discover improvements upon the land, and further found that the land office officials, upon investigation, concurred in appellee's view that the section of land involved was free of improvements. Notice was given and an appeal was taken by Dasburg to the District court of Santa Fe county from the order of the Commissioner so modifying and amending his application to purchase, as provided by Sec. 132-184 N. M. Stat. Ann., Comp. Upon trial de novo the District court overruled the contention of appellant Company and the said Commissioner and reinstated the contract of Dasburg as theretofore made. The Company brings this appeal assigning several errors, but the principal arguments are submitted under two points. Point 1 challenges the finding and decision of the court to the effect that the application, appraisement and other proceedings in connection with the contract of purchase were regular and as required by law and the rules and regulations of the Commissioner that hte applicant made honest and good faith efforts to ascertain whether there were improvements upon the land and that of the Commissioner was without authority to cancel or modify the contract. Point 2 challenges the court's finding and decision to the effect that the Railway Company had not acquired and had no right-of-way
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