Stover v. Garvin

22 Tex. 9 | Tex. | 1858

Wheeler, Ch. J.

It is not perceived that the evidence differs in any respect which is material from that given upon a former trial; which was held insufficient, when the case was before the court on a former appeal, to entitle the plaintiff to a recovery. (17 Tex. Rep. 292.)

The difficulty which the plaintiff has to encounter in the maintenance of his claim is, that at the date of the passage of the Act of the 21st of January, 1850, (Hart. Dig. 682,) he had not a subsisting settlement or improvement upon the land; consequently, the act gave him no right to claim this particular sec-' tion, in preference to any other person.

Prior to the act of 1850, settlement upon the land was essential to give a colonist a right to land in Peters’ colony. By that act, settlement within the limits of the colony gave a right to appropriate the quantity of land specified in the act. But to entitle the claimant to appropriate a particular section or half section, as the case might be, he must have had an improvement upon it. (Hart. Dig. Art. 2229.)

The plaintiff was not in a condition to avail himself of the benefit of the provision which entitled the colonist, in making his selection, to include his improvements. It is true, he had settled upon the land in controversy in 1845, and built a cabin and cultivated a small field. But in 1847, he left it, and went with his family to Arkansas, and never did return to and resume his settlement upon the land. He himself returned to the neighborhood in 1848, and 'probably visited the defendant, whom he had left in charge of his place, and some of his effects. But whatever may have been his intention in regard to resuming his settlement, he never did resume, or, so far as appears, attempt to resume it. Neither the defendant, nor any one else, could have prevented him, if he had seen proper. And, if he had resumed possession, within such reasonable time as to repel the presumption, arising from his absence, that he had relinquished his settlement, and abandoned the intention to return to it; if, having returned to it, he had continued its occupancy until the passage of the act of 1850, being then the oldest settler, his claim would have been preferred to that of the defendant. (Hart. Dig. Art. 2280.)

He may have intended, in 1848, to return and to resume his settlement, but the mere intention, without the fact, is not sufficient to constitute settlement. Nothing further appears to have been heard from him until after the passage of the act of 1850, providing a mode by which colonists could acquire a title to lands in Peters’ colony. If lie had not abandoned his settlement, he ought before this to have resumed it. His cabin had been burned down, and his former improvements had been destroyed, or had gone to waste. He cannot be said to have had, at that time, any subsisting use in any improvements upon the land. But he might have erected and occupied another cabin, and made other improvements. This he failed to do, and we think his long absence and inattention to his settlement, reasonably consistent with no other conclusion, than that he had finally relinquished his purpose of ever returning to and resuming the possession of it. At least, the defendant and others were fairly entitled to draw this inference from his conduct; and he can have no just cause to complain that, acting upon that supposition, the defendant did settle upon the section, and being the only settler at the adoption of the act of 1850, thereby acquired the right to appropriate it to himself.

In the view we have taken of the case, it will be seen that, in our opinion, the ruling of the court excluding certain evidence proposed by the plaintiff was immaterial. If the plaintiff had been permitted to prove all he proposed to prove, the conclusion must have been the same. Nothing short of the fact of a settlement or improvement, subsisting in the use of the plaintiff, at the date of the Act of the 21st of January, 1850, could entitle him to appropriate this land in preference to any other colonist. •Mere proof of intention, unaccompanied by corresponding acts, was not sufficient. It is proper to say, that if, in our opinion, the evidence disclosed in the bills of exception was of a character to affect the verdict and judgment which ought to be rendered in the case, its rejection would have been erroneous. (1 Greenl. Ev. § 108.) But as it was not material, its exclusion will not authorize a reversal of the judgment.

We are of opinion that there is no error in the judgment, and that it be affirmed.

Judgment affirmed.