State v. Davidson

On Motion for Rehearing.

This motion has received careful consideration, and we find no reason for changing the •conclusion reached in our former opinion. As •the motion lays stress upon the fact that the trial judge found as a fact that appellee was absent from his land more than six months during the year 1909, we deem it proper to explain that the testimony shows that nearly a month of that time was embraced in his visit to his parents; about 10 days of it was consumed in assisting in driving a herd of cattle to Midland for shipment, and in visiting some friends at Pecos on the return trip. During the balance of that year appellee worked with livestock on a nearby ranch or did farm work in the valley near Clint, or remained at home upon his land. He left all of his household furniture and clothing in his house; and, during the time that he was doing ranch and farm work, he returned to his home from one to three times each week, with the exception of a few times when the ranch work carried him 12 or 15 miles away. He testified that he returned home on the occasions referred to to see about his things, and that he generally stayed one night and sometimes longer, and cooked and slept in his house on his land. In fact it is quite clear that he never acquired any other residence.

Counsel for appellant have laid stress upon the fact that the proof shows that his cook stove was placed flat on a dry goods box, with no legs in the stove, until after the state’s agent Guyer visited the place and interviewed appellee. It is urged that if a stove thus situated could be used for cooking and warming purposes without setting the box on fire, nevertheless its use in that manner tends to show that appellee’s improvements were only temporary, and not intended as a permanent home, as he testified they were intended. It may be conceded that the circumstance referred to tends to support the conclusion urged, but, in the absence of proof that the use of the stove in that manner would have set the box on fire, that circumstance is not conclusive. The stove may have been constructed in such manner, or the box may have been made of such heat-resisting material as that appellee could have used the stove as he testified he did for the purpose of warming the house and cooking his meals.

The proof shows that appellee resided over 200 miles from the land at the time he contracted to purchase it from the state; and while it is located within two pastures, there is nothing to indicate any collusion between appellee and any other person, by which ap-pellee was to obtain the land from the state for the use and benefit of such other person. And although, as said in our former opinion, the testimony bearing upon the question of settlement in good faith and continuous’occupancy is very close, we do not feel justified in setting aside the judgment rendered by the trial court. However, the disposition that we make of this case ought not to be construed as offering encouragement to pretended settlers upon state school land, nor as discouraging the efforts of the Land Commissioner and the Attorney General to enforce the school land laws.

Motion overruled.