We have concluded to grant the motion for rehearing and affirm the judgment, being now of opinion that this case is distinguishable from those cited in the conclusions heretofore filed as authority for the disposition then made of the appeal.
Of the cases so cited, the decision in Atkinson v. Bilger, 23 Southwestern Reporter, 415, turned mainly upon its own peculiar facts, and need not be discussed.
In the other case, that of Bush v. Lowrie, 86 Tex. 123 [86 Tex. 123], which had controlling influence, the claimants were denied the rights of actual settlers upon the ground that the acts relied on by them to evidence such rights were merely acts of preparation for settlement, which had not been pursued to actual settlement when the applications to purchase were made. There the claimants were both married men, with families, and the preparations made were not such as to enable them to then and continuously thereafter live on the land, which they did not even undertake to do. No shelter of any sort was provided or attempted for their families, nor even the means of sustaining life out of doors. They merely went on the land, spent a few hours preparing it to move to, leaving all the means of living thereon behind them, and then went away, returning to their former places of abode.
In the case at bar, appellee, who was an unmarried man, carried with him to the land in dispute, as will appear from the quotation made in our former opinion from his testimony, all the essentials of a bachelor's life, such as "bedding, and a provision box with grub in it," a heating stove, provender for his horses, and a wagon bed, covered and made stationary, to lodge in; inclosing all with the formidable barb-wire fence. Having made the requisite preparations, he at once entered upon his "pursuit of happiness" in the new but crude habitation, by eating and sleeping on the land; having no other place of abode, and only leaving it, according to his version, for the pursuit of his business, that of horse-breaking. Whether all this was real or only colorable, whether his after-conduct was in keeping with his declared purpose so manifested, was for the jury, and we must accept their finding as conclusive.
As this conclusion leads to an affirmance of the judgment appealed from, we adopt as our conclusions of fact the statement of the material facts proven on the trial, as set forth in appellant's brief (beginning on *Page 35 page 4 and ending near the top of page 14), which appellee accepts "as substantially correct," but which need not be copied here.
The first four assignments of error submitted in appellant's brief complain of the court's rulings in the admission of evidence. These were all carefully examined on the original hearing and overruled. By reference to the court's explanations appended to the bills of exception and the several Acts of the Legislature involved, it will be readily seen that there is no merit in these assignments.
The charge complained of in the sixth assignment (the fifth not being copied in the brief) seems to be entirely in accord with the provisions of the Act of 1895, section 11, pages 65, 67, the issue of abandonment being raised by the evidence under the plea of not guilty.
Under the seventh and tenth assignments it is contended that the land had not been classified and put upon the market, but if the evidence to the contrary, as set forth in appellant's statement of the material facts, was properly admitted, as we have already determined, the contention is not sustained by the record.
The proposition of the eighth assignment is, that there was error in refusing appellant's second special charge, because there was evidence tending to show that the land in controversy was under lease to Rowe Bros., and hence not on the market for sale to a single man. The evidence placed it beyond controversy that the lease to Rowe Bros. had been canceled and the unearned lease price returned to them before appellee undertook to acquire the land. This seems to have been done under the false assumption that appellant had acquired a right to the land under his purchase as an actual settler on other land, which was prior to appellee's application, when according to all the testimony he had never made any such settlement or even approximated it. If, then, the lease ought not to have been canceled, it is yet clear that it was in fact canceled, and that Rowe Bros. practically acquiesced therein, and became vendees of appellant. See, in this connection, Acts of 1891, section 15, page 180.
There was no error, as complained in the ninth assignment, in refusing to charge that "going upon the land and putting up a small corral on it, and putting down inside the corral a wagon bed, with bedding and other articles, and leaving the land and only returning to the land occasionally, and spending a day or night at a time, does not constitute one an actual settler under the law."
Whether or not one is an actual settler is a question of fact, and not of law, as was recently decided by us in Cordill v. Moore.
The charge was objectionable for other reasons, which need not be stated.
The eleventh and last assignment is too general.
Rehearing granted, and judgment affirmed.
Writ of error refused. *Page 36