The only controverted issue in this case is one of law, to-wit, whether one who has settled upon a quarter section of land as provided by our homestead donation statute, erroneously believing it to be vacant public domain, can interpose ten years of such occupancy as a bar to the suit of a previous locator under a valid certificate, the land remaining unpatented?
That he can not seems to have been decided in Schleicher v. Gatlin, 85 Tex. 270; but in Converse v. Ringer, 24 S.W. Rep., 705, the contrary was held by the Court of the Third District, and the able opinion of Chief Justice Fisher in that case seems to us to announce the true construction of our ten years' statute of limitation. In addition to the reasons there given, we call attention to art. 3198, Rev. Stats., defining "adverse possession" to be "an actual and visible appropriation of the land, commenced and continued under claim of right inconsistent with and hostile to the claim of another." The right of the State is expressly excluded from the operation of the statute. Article 3200.
The sworn application of the settler must state that he claims the land for himself. Rev. Stats., art. 3195. In this case the actual settlers, besides their applications and surveys, made permanent and valuable improvements on the land, as found by the verdict, and manifested unmistakably their several appropriations of the land "commenced and continued under claim of right (with boundaries designated as provided in art. 3195) inconsistent with and hostile to the claim of another" (appellee), and of all others whose rights might be affected by the operation of *Page 270 the statute. The State excepted, the possession was undoubtedly adverse to all the world. The statute only requires it to be adverse to "another," which, however broad its meaning, evidently was not intended to apply to the State.
The evidence of such adverse possession for more than ten years being undisputed, the court might properly have instructed the jury to return a verdict for appellants. At all events, the refusal to submit the issue, to which error is assigned, in the view we take of the law, requires the judgment to be reversed. The learned district judge doubtless felt constrained to the course pursued by the decision adopted by our Supreme Court in the Schleicher-Gatlin case, supra, citing other cases, which, however, when critically examined, will be found not to sustain it.
Taking it for granted that appellee would not desire to have the cause remanded, we not only reverse, but here render the judgment against him, in order that there may be an end to the litigation.
Reversed and rendered.
ON MOTION FOR REHEARING.