Borchers v. Mead , 17 Tex. Civ. App. 32 ( 1897 )

December 28, 1896, appellee, a single man, applied to the Commissioner of the General Land Office to purchase as an actual settler a section of grazing land in the pasture of Rowe Bros., in Donley County, previously sold to appellant. His application was rejected, and this suit was brought January 21, 1897, to establish his claim to the land. Upon a verdict so finding, judgment was entered in his favor; hence this appeal.

The controlling question is, was he an actual settler? There being little or no conflict in the evidence, the answer may be found in the following except from his testimony on cross-examination:

"I went and settled on the land in controversy on the 26th day of December, 1896. My uncle, Ed. Bennett, who lives about two miles from Clarendon, went with me to the land on the morning of December 26, 1896. We took dinner there that day. We put down a wagon bed on the land, and put up the bows on it, and put on a wagon sheet, and I put my bedding and a provision box with grub in it in the wagon bed. I set a small heating stove out on the ground near the wagon bed. We took a spool of barb wire and some cedar posts along. We inclosed the wagon bed with a fence made of cedar posts and three strands of barb wire. The inclosure is probably as large as half of the court house. It is a small inclosure. I put some kaffir corn and some sorghum inside the inclosure for feed. This was December 26, 1896. My uncle returned to Clarendon the same day, in the evening. I remained on the land till the next day, the 27th day of December, 1896, when I returned to Clarendon. On the 28th, the following day, I made my application to purchase the land in controversy as an actual settler. I have never made any other improvements on the land. In three or four days after I made my application to purchase the land I went back to the land, and remained on it till the next day, when I returned to Clarendon. In about a week [I went] to the land in the morning and took dinner there, and returned to Clarendon in the evening of the same day. Do not know how often I have been back to the land since that time. I can't tell. I have never been on the land more than a day and night at any one time. I have been engaged in breaking horses and mules for parties about Clarendon, since I filed on the land. My work has been breaking horses and mules. I have not put any further improvements on the land, because the Commissioner of the General Land Office refused to award me the land. I do not know where I got the money to make the first payment on the land. I have always had money. I have some money now. I have but little property. I have two horses and two mares and six head of cattle. I have no other stock. I have a wagon and harness. Since I put the wagon bed on the land and inclosed it by fence, I have used some planks on the wagon instead of a wagon bed."

We are unable to distinguish this case from Bush v. Lowrie,86 Tex. 123, and Atkeson v. Bilger, 23 Southwestern Reporter, 415. Upon the authority of these cases, we therefore hold that appellee was not an "actual settler" as defined and construed in the opinion of Justice Brown in the case first cited, but that he had merely, to quote from his testimony, "filed on the land."

The judgment must therefore be reversed, and as the decision turns entirely upon the effect of his unquestioned acts, and his counsel would probably not want the case remanded, the judgment will be here rendered against him. We find no merit in the assignment raising other questions.

Reversed and rendered.

ON MOTION FOR REHEARING. December 11, 1897.