77 Tex. 46 | Tex. | 1890
—This case, like that of the same appellant against G. W. Dunning, supra, 28, is a controversy between one claiming under a purchase of the Grimes County school land and a claimant of the right of pre-emption as an actual settler. With two exceptions, the ■questions presented upon this appeal are the same which in the former case were decided adversely to appellant.
One of the additional questions submitted in this case is whether or not the appellee was a settler within the meaning óf that term as used in section 6 of article 7 of the Constitution. The facts in reference to this matter, as agreed upon by the parties, are as follows: " That Jasper Mill-man fenced the entire tract, 160 acres (meaning the land in controversy), in 1885; that he is a single man, but of age; that at the date of the purchase by Buffington, McDaniel, and Baker said Jasper Millman was sleeping at his father’s, George Millman’s, on a survey of 160 acres out of the ■same league adjoining that in controversy; that all the improvements on the land were put on it by Jasper Millman, and that he himself worked 7 or 8 acres of the land in 1887; that he claimed the land prior to the purchase by Baker, Buffington, and others, and that he owned no other homestead.” The entire league was sold to McDaniel, Buffington, and Baker (under whom appellant claims) by the Commissioners Court of Grimes County, and was conveyed to them August 2, 1886.
It may be, as claimed by counsel for appellee, that it was not necessary that he should be the head of a family in order to acquire a right of preemption in the land claimed by him. The provision of the Constitution in question, in designating the persons to be protected, does not say heads of families; nor does it use any other words which evince an intention that the right should be restricted to that class; but the language is, "Actual settlers residing on said lands shall be protected in the prior right ■of purchasing the same to the extent,” etc. Const., art. 7, sec. 6. While this language does not exclude single men, it includes’only such persons as have actually settled upon the land and are residing upon it at the time the county determines to sell.
An actual settler upon land is one who has actually established his residence upon it, and not one who has enclosed it and cultivated it, intending at some future time to live upon it. The use of the word "actual” would seem to have been intended to prohibit the courts from extending the meaning of the word "settlers” by construction, and to confine the
The appellee, however, claims that he was a possessor in good faith, and prays that in the event the plaintiff shall recover the land he shall be allowed compensation for his improvements. The statute allows compensation for improvements to those who “ have had adverse possession in good faith of the premises in controversy for at least one year next before the commencement of the suit.” Rev. Stats., art. 4813. The defendant did not have adverse possession of the land now claimed by him. He entered upon and improved it, with the expectation of buying it from the county of Grimes. He may have honestly believed that he acqtiired a. right of pre-emption without making his residence upon the land. But in our opinion it was not intended that persons who were not actual settlers should encumber the school lands of the counties with claims for improvements, when their sole excuse for making such improvements was. their ignorance of the law.
We are of the opinion that the judgment should be reversed and here rendered for appellant, and it is so ordered.
Reversed and rendered.
Delivered April 22, 1890.