I concur with justice McKENZIE in the view that this cause should be reversed and here rendered for appellant, but I do not fully concur in all of the reasoning of his opinion. I think the facts clearly disclose that Eriksen made a settlement upon the land, but that this settlement was constructive rather than actual, and that the law requires a settlement of the latter character. It was undisputed that Eriksen himself was never upon the land until two or three months after the same was transferred to him by Donelson; but it is contended that settlement was made by him within the meaning of the law by the fact that his wife at once entered into possession thereof and established their home thereon, and that this was sufficient. The material facts were undisputed upon this issue, and are as follows: Mrs. Eriksen testified: "My husband and I acquired this land from Donelson that we might have a home. My husband and I had not taken up any land from the state at that time. * * * I went out there to examine the land for Mr. Eriksen and myself. Mr. Eriksen was engaged in blacksmithing at the time the trade for the land was finally made. After the trade was made, I went out there and made settlement on the land and moved on it as soon as I could get there. At that time old Father Donelson, his daughter-in-law, Mrs. Donelson, and my little nephew went with me. Old Father Donelson was the man we got the land from. This was immediately after the deal for the land was closed. I moved on the land and built a house. When I went out there the first time, I took horse feed and something to eat and some posts and wire and some lumber. I took some bedding and household effects. I took bedding and clothes for myself and the little boy until I returned. I put the stuff on the land that I carried out there. I sent back for other material and put up a house as quick as I could get it up. It took, of course, a few days. I put up a 10 by 14 boxed house. I put fencing there. We put something over two miles of fencing as quick as we could get it up. I do not remember the exact time it took to put it there. We did not make very much clearing there. We dug out a tank there. There had been some work, and we put in a couple of days with a team and scraper cleaning it out — Son and myself. We did not put in any crop the first year. We did afterwards. Mr. Eriksen furnished the money to buy the improvements. We wanted the improvements to establish our claim to the land and make the title good. We thought the law wanted us to put the improvements there and of course make a home. * * * I think I know why Mr. Eriksen did not go with me when I first went out on the land. It was because his business required his attention — blacksmithing. He stayed in town to provide means to sustain life and improve the home and pay the debts that was on it, etc. He had no other means to pay these notes against the land but his labor and his income from the shop. * * * My husband and I did not have any other home anywhere from the time we made this trade with Donelson up to the time that the land was canceled and until the three years' occupancy was completed." *Page 627
Eriksen himself testified as follows: "I made a trade with Donelson for this land. I bought the land and paid him a bonus. He partly lived it out, and I bought the four sections and the claim for a certain amount, paid part down, and paid part in small notes along in one, two, and three years, somewhere along there. I got a deed to the land from Donelson. It shows the consideration correctly. * * * I bought this land to have a home. I thought it was good time to begin a start to get a little home of my own. When we talked about making the trade, we agreed for her to go and look at the land as I was busy in the shop, to see whether it was what we wanted or not, and, if it was, we would buy it, and when they came back they agreed the land was all right and bought the land for a certain consideration. We put in a home we had in Hillsboro, our homestead, and some little money and the balance in notes — about $3,000 or $3,500 — something about like that in notes. * * * I do not remember how soon after the deal was closed it was until I went out on the land. It was not long until I went out there and spent a while. I can't get it down. I have been trying to think it up, but I cannot remember. It was not long because I was anxious to see it. When I went out the first time, I stayed somewhere about a couple of weeks. I did not go on the land sooner because I did not feel like I could leave my business and do ourselves justice. It was very busy times, and I tried to pick slack times to go out there whenever I could. I made other trips out there. I cannot remember the time. I was out there three or four times — two or three trips — before the land was canceled. * * * When I was out there I worked, helped build fences, and done some little plowing and whatever I could do. I considered that my home, during the meantime, was in Andrews county on the four sections. I had no means of livelihood but my trade. I never learned any other business."
The cases of Andrus v. Davis, 99 Tex. 303, 89 S.W. 773, and Bustin v. Robison, 102 Tex. 526, 119 S.W. 1140, to my mind clearly held that the occupancy required must be actual rather than constructive, and it is difficult to read the Acts of 1905 relating to the sale of free school land without reaching the conclusion that the Legislature clearly and definitely intended that actual settlement and occupancy is required rather than constructive. In Bustin v. Robison, supra, the court held that a temporary absence from the land did not operate as a break in the actual occupancy required by the law, but there is nothing in that opinion, as I construe it, which militates against the view clearly held in the Andrus Case that actual occupancy is required. Personally I regard this provision of the statute requiring a continuous personal occupancy as most unfortunate, and one which has materially retarded and delayed the development of this portion of our state, but I think the legislative intent clear, and the courts must observe it.
In the case at bar, I think it clearly appears, as a matter of law, that Eriksen's settlement upon the land was constructive rather than actual, and as such was insufficient.