Burleson v. Durham

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 Styles v. Gray, 10 Tex., 503, cited by counsel for defendant in error, in support of the proposition that Burleson could not contest the validity of Durham’s patent, appears to have been one in which the party who sought to attack the patent did not show that he had rights which were vested prior to its issuance. The main question in the case below was as to the nature [158] of Durham’s occupancy, whether it was in fact such as entitled him to purchase the land of the State. His claim was under the 3d and 4th sections of an act to “ regulate the disposal of the public lands of the State of Texas,” as amended May 16, 1871. (Paschal’s Dig., art. 7040, et seq.) Section 1 of that act gives to every head of a family, who has not a homestead, one hundred and sixty acres of land as a homestead, out of any part of the public domain, upon condition that he or she will select, locate, and occupy the same for three years, and pay the office fees on the same. Single men were allowed eighty acres, upon the same terms and conditions. By section 2, the mode of procuring title by a person who shall occupy any portion of the public domain as a homestead is pointed out. The third and fourth sections are as follows : “Any person who shall hereafter, in good faith, actually settle upon any part of the public domain, * * and shall occupy any part of such public domain, not exceeding one hundred and sixty acres, and furnish to the Commissioner of the General Land Office satisfactory evidence that he or she has, in good faith, so settled, shall be entitled to purchase the same from the State at the sum of one dollar per acre; and the certificate of the surveyor of the county or district in which the land is situate, that, such person is an actual settler on said land, shall be deemed satisfactory evidence thereof. (Paschal’s Dig., art. 7047.) “ Any person now occupying any part of the public domain of the State, in good faith, shall have the right to take the necessary steps, at any time within twelve months from the passage of this act, to appropriate the same, or a part thereof, to a homestead, under the first section of this act, or to purchase the same, or a part thereof, under the third section of this act; and no person shall have the right to interfere with said actual settler, by file,'location, or survey, by virtue of any land certificate or other land claim whatever, within said prescribed time.” [159] Section 6, article X, of the Constitution then in force is as . follows: “The Legislature shall not hereafter grant lands to any person or persons, nor shall any certificate for land be sold at the land office, except to actual settlers upon the same, and in lots not exceeding one hundred and sixty acres.” The statute was evidently framed with reference to this constitutional provision, and was designed to give the privilege of purchasing only to actual settlers. The third section gives this right to “ any person who shall hereafter, in good faith, actually settle upon any part of the public domain.” It is true, that, in the outset of the fourth section, the person whose rights are protected from interference by file or location is described as “ any person now occupying any part of the public domain of the State in good faith; ” but, in the latter part of the same section, he is further described as “said actual settler.” Durham’s rights, under this statute, depended on whether he was or was not an actual settler. The word “ settler,” and the expressions “ actual settler ” and “ settled in good faith,” are of frequent recurrence in the • legislation of Texas. The Constitution of the Republic contained the following provision: “In all cases, the actual settler and occupant of the soil shall be entitled, on locating his ■ land, to inclose Ms improvements, in preference to all other claims not acquired previous to his settlement.” (Gen. Provis., see. 10.) The land law of 1837, in case of conflicting location, gives the preference “ to the oldest occupant and settler.” (Paschal’s Dig., art. 4526.) The rights of “actual settlers,” in those parts of the State where there were colony contracts, were protected by ordmanee annexed to the first State Constitution, and by subsequent legislation. (Paschal’s Dig., p. 76; and art. 828.) The various pre-emption laws extended privileges to individuals who settled upon and improved a portion of the public domain. (Paschal’s Dig., art. 4326, el seq.) The general policy of the Republic and the State has been to encourage immigration, and the settlement of the public [160] domain, by giving a preference to the actual settler seeking to making of it a home. But it is not believed that it has been the policy to encourage, by special privileges, the mere temporary occupation or use of the public land. The word settle, as applied to lands, conveys the idea of permanent inhabitance. (Webster’s Diet.) Certainly, the settler protected by the pre-emption laws was one who actually resided on the land settled. In all of the enactments, from 1853 down to 1871, the' pre-emptionist is required to show that he resided upon and cultivated the land for three years. (Paschal’s Dig., arts. 4336,4343, 4358, 7052, 7053.) In the act of November 12, 1866, it is expressed thus: “ That he or she is bona fide settled upon vacant land, and that he or she has resided upon and cultivated the same for the period of three years next preceding the time of making such proof.” (Paschal’s Dig., art. 7060.) The statute which we are considering describes the persons upon whom it confers the privilege of purchasing, in terms similar to those used in the pre-emption laws. It seems to be kindred to those laws in its nature and objects, and we think it intends to give the right of purchasing to him only who occupies the public land as a residence, or with a view to residence. No one else can be said to have actually settled and occupied in good faith. He who has no homestead may, by three years of such occupancy and improvement, secure a donation of 160 acres, or he may, at his option, secure a title by purchase, without waiting for three years. He who has a homestead, but sees fit to remove to public land, may, by purchase, perfect his title before selling his original homestead. Certainly, a settlement may be commenced before the removal of the family to the land and before actual residence thereon. But the actual settler intended by the statute must reside on the land, or occupy preparatory to and with the bona fide intention of residing thereon. Occupancy for such a purpose may be occupancy in good faith. [161] Occupancy for other puiposes does not entitle the party to purchase as an actual settler.- The court below refused to give instructions, which were asked, embodying this construction of the statute, and refused a new trial, when the testimony of Durham himself failed to show residence, actual or contemplated. From the evidence, • it appears that Durham had a mill on an adjacent tract of land, one corner of the mill extending on the land in question. He had also, according to his own testimony, on the land, a lot, a corn-crib, a garden, and a cabin, and, after-wards, a stable. He cut much of the timber on the land, and used it for mill purposes, from May, 1870, to October, 1872, and during that time this was his place of business. He does not state that it was, or was ever designed to be, his residence; and there is evidence that his residence was elsewhere. Hnder the evidence, the court should have given the instructions asked on the subject of residence, and should have granted a new trial. The judgment is accordingly-reversed and the cause remanded. Reversed and remanded. Chief Justice Roberts did not sit in this case.