The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1884-05-29

T leSaily acquired SINE interest
l the land, without notice o. q
} appellee's right, 1t was unii
: POI San', wht ther the suaveyt
: as the LtW requires him 10 do, recon
7 ed the application. duly flied with nj
/ in his book required to be kept by hi
for that purpose
, The application was duly made an
: filed, the survey was made With
twelve months after the applicatio
was made, and it, after being properI
recorded in the county surveyors O
flee, with the application for the Ian,
was, about October 20, 1882, sent t
the general land Office. These fact
would fix the right of the appellee, j
the other conditions emitting him t
homestead donation existed and tn
land had not bCel appropriated by al
other. 1t then only remains to inQuir
whether the appellants location an
patent are void, because on land no
subject to appropriation by land Gel
tlficates, except as the same may b
permitted under the homestead pre-
emption laws.
The land was situated in Nolal
county, and by the act O
July IA, 1879, general laws, page As
all land in that, and In the other coun
ties named in it, were declared to b.
appropriated to certain purposes. Cit
ing the first section of the act: "Un
der terms of this act the land" say tn
court, "waS appropriated and set apar
| for sale, prior to the time the appel
liant made a location upon it, if in fac
it was not reserved from general loca.
ton by former laws. The word zap.
propriated,' as used in the act, evident
ly, means that the lands designated
We're set apart for the particular use:
named, to the exclusion of all othel
uses, and is equivalent to the WORD
reserved The whole tenor of the act
evidences this. In fact, the act in
terms recognizes that the lands EN-.
oraced in the area designated is res.
ervation; for it declares that, THE
provisions of this act shall not be sc
construed as to prohibit the right OF
pre-empting within the bounds of the
RESERVATION here made"
The amendatory act of March IL,
1881, General laws, page 25) gives the
legislative construction placed on the
original act very fully in that Carson
county, which was inadvertently left
out of the original act, is embraced in
the amendatory act, and the emergen-
cy clause to it declares that the neces-
sity for the prompt enactment of the
amendment consisted in the fact that
the vacant lands in that county were
by the original act left subject to 10
cation.
The act of January %, 1883, Gen
eral laws, q withdrawing from sale
the lands named in the acts before re-
ferred to, places the legislative inten-
ton beyond all question, for after
withdrawing the land from sale it de-
clares: That nothing contained IN this
act shall be construed to return the
land reserved by An act toiprovide for
the sale of a portion of the unappro-
priated public lands of the state of
Texas, and the investment of the pro-
ceedS of such sale approved July ID,
1879, and the act amendatory of
such act, approved March II, 81, to
the mass of the public domain, but the
same shall be construed to be reserv-
ed for the purposes for which said
land was originally set apart and
designated by said act, until the legiS-
lature shall otherwise provide. Citing
the 8tk section of the act of July Ia,
10, this section says the court evident
ly was intended to prohibit any one
from locating purchase or donation
homestead presumption, such as were
provided for by chapters and 8, title,
of the revised statutes, on
any lands which, under the terms of
the act, had been surveyed for a pur-
chaser, or for any of the other purpos-
eS named in the act, and was not in
tended to leave the land open to ordi-
nary location until such surveys were
made.
The land located and patented and
claimed by the appellant being within
the reservation, the location and pat
emit must be held equally void. Kim
NELL VS.. Wheeler, % Texas, Y; Sher-
wood VS.. Fleming, 25 Texas, sup. 427;
Woods VS.. Durrett, % Texas, 430.
We may say of the act of July Ia.
70, and of the location and patent of
the appellant, astwas said in Sherwood
VS.. Fleming: The former withdrew
the land embraced within the reserva-
ton from private or Individual apprO-
priation by colonist's or other certifi-
cate, and that a location made within
the limits OF the reservation during
its continuance was void.
Does a patent issued for lands with
in the reservation at that time stand
upon any higher ground? 1t would
seem upon, principle, that it does not,
for the plain reason that the officer
had no authority to issue patents to
land thus reserved and set apart from
the mass of the public lands, and the
act of issuing the patent was void.
This being true, the appellants loca-
ton and patent interposed no obsta-
Gle whatever to the appellees acquir-
ing a homestead donation on the
land.
1t rested on appellee as the plaintiff,
to prove, even against a treSpasSer,
that he was entitled to the relief
which he sought. This he did not do.
The proof of occupancy is unsatisfac-
tory, and there was no evidence that
he was the head of the family, when
to entitle him to a homestead dona-
ton of one huddred and sixty acres
of land proof of this fact was essen
tial. Matters found in the brief
of appellant, based on the idea that
the action could not be maintained
on petition filed February %, 1883,
and subsequently amended cannot be
when raised IN this court
for the first time. Under the evidence,
the appellee was not entitled to the
Judgment rendered, and the judgment
of the court below will be reversed
and the cause remanded, that the same
may be tried in accordance with this
opinion.
In the supreme court yesterday. in
the case of McAninch VS.. Freeman,
from Bell county, the appeal was dis
missed. This suit was for two hun
dred acres = of land, near Mountain
Home, and recovered by Col. Free
mans son-John d. Freeman.
DISTRICT COURT.
In this court yesterday in the case
of Stelfox VS.. Ford and others, there
was decree yesterday correcting some
defects in deed to certain property.
The following cases were decided
yesterday:
Affirmed: James Lynn VS.. the
State; from Milan county. playing
cards in public place, fined $40; i.
Joynes VS.. State; from Milan county,
betting at gaming bank, fined $40;
Enoch Breeding VS.. State; from Mi
lam county, fined $40; J. Oscar VS..
State; from Robertson county, play
ing cards, fined $40; j. r. Hubbard VS..
State; from Bell county, aggravated
assault, fined 800; Fred Brodnax VS..
State; from Frio county, theft OF
horse, sentence 10 years; J. b.
Leyendecker VS.. State, from Bel
county; carrying pistol, lined $50; Ben
RAMON VS.. State, from Kendall coun-
ty: theft of property under $40; $500