Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-02-06
CONCLU SIONS OF FACT.

". L. Glasgow appellee. Appeal from
Archer county.
CONCLUSIONS or FACT
ln April, 1879, the land iu controversy
being vacant public domain. one Willum
Hutton settled thereon. and mndp such
Improvements as entitled him To be- class
rd MS un actual settler under the act Of
May 20, 1873. The suid Hutton rpmuu-
eel upon Suid land until iu the summer OF
1881, when ON account of the excessively
dy weather. be- moved his fnmily. with
nus Hook Of sheep, about eight miles 90
obtain water ana never returned there
tu with his family although "a part of
A'H furniture remained iu the house until
lhe summer or lnll of 1882. aud Che for
lEc Tor his stock, which was raised on
lh' place Iu lHNl, rcmuiurd thereon. In
July, 1850, Hutton made application ia
WruuE 10 the proper surveyor 10 have
TINS land surveyed for him as A prp-pmu-
uon homestead, but this application was
not accompanied with an affidavit ms re-
Qulrrd by law The surveyor however.
surveyed the luud and returned the field
notes with This application 10 Inc land
ONCE IN August 1880 In November
1855 lluttlu filed his own and two sun
porting uihduvlS proving three years
occupancy hy him as required by
Jaw win the commissioner of
the general luud office I'm MAY. 1889
his interest In the land In controversy
20 appellant who has never resided upou
H. In February, 1880. upppllers settled
upon Inherent parts of this uud for the
purpose of acquiring presumption home
si'1dS thereon, They made the neres.
aNly applications, uthduyits. and had the
survey made, aud the field notes returned
To- the general lund office in compliance
with the law 10 eutitlp them To the land
" nc THAT time it was vacant public do
man, la 1884, appellant applied 10 the
commissioners OF the general land office
Tor patent on the Hutton claim, and was
informed that CHS land was embraced I'M
an oll'r survey ana as appellant was
| hpn the owner Of such older survey. ba
| made no further effort to procure the
patent until after the settlement by the
surveyors for uppellpcs were made. hut
Whon he learned OF this adverse claim he
ugim applied To the commissioner for n
| patent wmch was issued in the nanr
! OF William Hutton on the 9Th duy of
AGgusI ISM The field notes of appel
| leos surveys were filed in the gputrul
land Office July II. 1880.
lhe ease was tried 10y the court below
without a jury and Judgment was rem
derel no favor Of uppelces for TINT nnrt
| or the land covered by their claim. nnd
IN favor of appellant for the remaiuder
No special findings of law or fart me-.
ID
| pelleeS made their settlement the lnnd
was enclosed Ia the pasture of appelInnt
and they were notified los him fbnt Ln
claimed Il under the Hutton settlement
OPINION.
There being no findings Of fort 3, u,.,
record, we think the Judgment rauGar"5
by the court below must bp hold n, I'M
port finding that Huttous applicntinn
Mas not accompanied 10y the necessary
'th9aNlI TO authorize survey for him
uhuor the presumption laws I'm force NJ
ihe time OF such application That the
| iNluFe To accompany his application with
such 0u affidavit Is fatal to tho OHM, nf
appellant seems To bee settled by the IA.
yiSion OF our supreme court. NlIlpr W.
Moss; go Texas lT9. Blcdsoe Ms. OHM
=" l'Ngs' F1o l, SayleS' real estate
laws OF Texas, section. 822)
Appellant contends that under tbe ori
dehre 'he court should have presumed
lhhi the necessary application uud otE
uaNt were made by Hutton. In h tr,,
| iNAl Hutton sWeurs that he maln o,
application and had survey Diad, T.,
ie,9 aud u may he thar had the conrt
t"Nnu IN FAVOR Of appellant we would
nave been constrained to bold tbnt tbo
evidence Justified such fudips Inn xxx
court having taken diner,nt view nf
| me evidence, and as we must prasu,u.,
having found that the only nD6lic,tior
luat was uade was the one returned ~
tn' land oliice IN 1850. aud that this an.
pliAuon was not accompanied hy IA
necessary affidavit we must holI tbst
sR'h uhding was justified by the eyid,nce
i1 support az thc Judgment rendpreJ
NS are also not prepared 20 say thot
q hhdhg by the congt below mat fIuffS,,
sau permanently abandoned the place bs'
loFe ne h9d occupied Il the fun thrss
years Would not he sustained by Tie pvi-
uShca ~ ls true thar a mere temporary
absence would NOT work forfeitt,..'
such q claim. tHlelsoc VS.. cain ANNA
NalFsrt rs, Ramsey 50 Texas. 50GI
bNt ~ may hc that the court viewed tb4
evidence ia This ease ms SLOWING mn in
/ teutipn on tho part of Hutton mn Ill u.
I 20 make his home upon this land. and n
sueh WAS the fading we would har,p,
ne authorized % disturb the iudrnen;
~ wv Wdguent Of the court below In
all things he affirmed. HEAD0" ~
Associate Justice