Cravens v. Brooke

17 Tex. 268 | Tex. | 1856

Hemphill, Ch. J.

The appellee, Henry L. Brooke, under some arrangement with one Fink, the administrator of a deceased owner of the Haly league survey in Shelby county, entered upon, settled and improved, in the year 1849, a portion of said survey. The certificate of Haly was never recommended for patent. Several years after the survey for Haly, the head-rights of others were located on the land, but no surveys were made on these last locations, and on the 11th February, 1853, the land became vacant by operation of the Act of the 10th February, 1852. On the 24th March, 1853, one of the appellants, James J. Cravens, located three one-third of a league claims, upon the original survey, and Richard Hooper also located 476 acres. Cravens was not one of the locators before the 11th February, 1853 : and though Richard Hooper had located a portion of the league before that date, yet it does not appear that his location subsequent of 476 acres, was on the land claimed in this controversy ; or, in fact, whether any land would remain for his location, after the locations for Cravens, were satisfied. In the meantime, the appellee continued to reside at his improvement upon the land, and on the 12th April, 1853, appeared before the county surveyor, and claimed a preemption of three hundred and twenty acres, tendered the surveying fees, and took an oath intended to be-in compliance with the law, (Hartley’s Digest, Art. 2135,) so as to entitle him to the survey without the necessity of furnishing1 a certificate. On the 30th of August, 1853, he renewed the oath, but more fully, and1 specifying the facts showing that the land was public, vacant domain on the 12th February, 1853, at which time he claims to have become a settler, and applying for the survey of his pre-emption of 320 acres. The surveyor refused ; and this suit was instituted for a mandamus -to compel a survey.

The ground of refusal by the surveyor was the previous locations of 24th March, 1853, by Cravens and Hooper, the appellants, upon which partial surveys were made. The locators, Cravens and Hooper, subsequently appeared and made themselves parties defendants.

The leading question in this case is, whether the continued residence of Brooks, after the land became vacant, at his settlement and improvement previously made on the land, was tantamount to a new settlement by him upon such land, so as to bring him within the purview of the Act of 1845, (Hart. Dig. Art. 2130,) and give him a valid claim to a pre-emption. This Act declares that individuals who have settled upon and improved, or might thereafter settle upon and improve, a portion of the vacant public domain which has been neither filed upon, entered, located nor surveyed, by virtue of some genuine legal and valid certificate or other evidence of title previous to such settlement, and improvement, shall have the privilege of locating, &c., three hundred and twenty acres, &c., so as to include his improvements, <fcc.

The facts which must concur to give the preference under the law, are, that the land must be vacant, and there must be a settlement and improvement by the applicant. The settlement of the appellee on the land previous to 14th February, 1853, goes for nothing in his favor. Nor do the locations made previous to that time injuriously affect his- present claim. His trespass and the locations ceased together on the 11th February, 1853. The land then became vacant and open to location or pre-emption. The land being vacant, the appellee continued -to reside at his improvements previously made, in the full exercise of the powers and privileges of a settler, without adverse claim, until the lapse of about forty days, when locations were filed by appellants.

It will be admitted, it is presumed, that if Brooks had removed from and abandoned the land on the 12th February, 1853, and had returned on the 13th and resumed his occupancy and continued his cultivation and improvements, he would be entitled to the benefit of the pre-emption Act. Can the fact of his continuing on the land make any difference ? Does it show less significantly than abandonment and re-entry, the intention to occupy as a settler and improver ? The settlement and improvement are pre-requisite to the grant. They must be accompanied with sach circumstances as show an intention of remaining, to entitle the claimant to the bounty. A casual trespasser or camper cannot claim the preference. But what circumstances could show more strongly an intention to remain, than the acts of appellee ? His home had been on the land for years, and though abandonment and re-entry might be evidence of his intention to remain, it would not be so conclusive as continuous residence.

But it is said that the appellee was ignorant of the fact of the vacancy of the land, until after the locations by the appellants, and that the appellee is not entitled, as, until he knew the land was vacant, he cannot be presumed to claim the benefit of pre-emption, or make the settlement which, under the law, would give him the right. The rights of the appellee do not depend upon his knowledge or ignorance of the facts, except so far as this may be supposed to affect his intention of settling or remaining upon the land. A settler might enter on lands not knowing them to be vacant, claiming under a fraudulent land certificate, or under surveys which had not been returned as by law required, believing them to be valid, but notwithstanding this mistake, he would be entitled to the pre-emption, if he had complied with the essential prerequisites of settlement and improvement.

The only condition which the law imposes, is that of settlement and improvement on vacant land. The acts of the applicant are alone the subject of inquiry. Was the land vacant, and has it been settled and improved ? and not what the settler thought or imagined or supposed about the title, or whether he imagined it vacant or otherwise.

A person who is settled on the land at the time it becomes vacant, and continues his settlement and improvement after-wards, cannot be said to be less a settler, than he who settles and improves after the land becomes, vacant. If he remain on lands previously his home, that is assuredly his settlement, as much, if not more so, than if he had just entered. The law is for the encouragement of settlers, and he who is on the farm, is entitled, if he remain, to at least as much protection, as he who would enter upon and convert the toils and labor of another to his own advantage. Let us suppose a case where one enters under a valid cirtificate and survey, but which subsequently became void for want of a due return. If he remain and continue his settlement, he cannot be deprived of the pre-emption, though he may be ignorant of the law requiring the return, and the land may have been vacant forty days or more before he was apprised of the fact. His continued residence and improvement are notice to the world of his intention and of his right within eight months to claim the bounty of the government.

The case before us is not one where the location was made on the day the land became vacant, or where a settler had been holding in trust for another. No question of that character, or whether the rights of the settler can be affected by such consideration, is before us for examination. The appellee had resided on the vacant land for forty days before the location of appellants. He may have been ignorant that the land was vacant. The evidence is not positive as to the fact, but that is immaterial. For he was a settler, and not the less so'from not knowing the exact state of thejtitle.

This cause has been argued with great zeal and signal ability by counsel, and other points have been elaborately discussed. But it is not essential that these should be now examined, as the views we have expressed on the leading question are decisive of the cause. We believe that the appellee, under the circumstances of his continued settlement, residence and improvements, is entitled to the’benefit of the pre-emption Act of 1845, and it is therefore ordered that .the judgment be affirmed.

Judgment affirmed.