Appellees insist that, as no members of appellant’s family except himself and one son were upon the land at the date of their location and survey (February 6, 1871), he was not at that time a settler on the land. Appellant had been a tenant for the year 1870 upon the land of one of the parties. Himself and family were for the time residing there. About the close of the year, or, it may be, in the beginning of the next year, he, with his son, took possession of the land in dispute, and commenced improvements. Can this rented place-be properly called his home, merely because he left a part of his family there for the time being, until he could provide for them elsewhere? We think not. From the fact that he took possession of the land, removed his family to it a short time afterwards, and remained upon it permanently, the most rational presumption is that he took possession for the purpose of making it his home,- and that it became his home from the time he so took possession. He had then an interest in the land. Appellees term this interest a right of preference; that is, a right to acquire a title to the land by complying with the statute, and which he might lose by his neglect. And it is insisted that he did lose the right by neglecting to procure a survey within twelve months from the date of his settlement. We do not think, however, that his *62failure to obtain the survey is to be attributed to bis neglect. And further, we do not think appellees can be heard to allege his non-compliance with the law,- as his failure to procure the survey was attributable to obstacles which their illegal effort to appropriate the land had thrown in his way. It seems to us that his efforts to procure the survey, though he may possibly have mistaken his remedy, protected his rights, and that his having filed the field notes in the land office within twelve months after the passage of the “ Act for the benefit of actual - occupants of the public lands,” passed Hay 26, 1873, gives him the better right to the land. See Acts of 1873, oh. 67.
Our opinion is that there is error in the judgment of the court for which it should be reversed, and such judgment rendered by the supreme court as should have been rendered by the court below.
Reversed and rendered.
[Opinion delivered May 2, 1882.]