In the original opinion we stated that section 2, with the other lands in appellant's application to purchase, was classified as dry agricultural land. In making this statement we were misled by the description and classification given in his application to purchase. All of the four sections there described were in the application classified as dry agricultural lands.
Appellant in his motion for rehearing and in his request for additional findings of fact states that such classification, as relates to section 2, was a mistake, and we are inclined to the view that this was the case. It appears from the evidence that at the time that the appellant and the appellee both filed their applications to purchase on August 23, 1897, section 2 was classified as dry grazing land, and appraised at $1 per acre. The other three surveys — that is, 4, 6 and 8 — were classified as dry agricultural lands, as stated in our original opinion. Therefore our findings of fact will be corrected as above suggested.
We also find from evidence stated in the record, which is incorporated in one of appellant's bills of exception, and which evidence the appellant in his motion for rehearing requests that we consider, that the application made by the appellant was prepared by his attorney under a suggestion from the Commissioner of the Land Office that all four sections could be embraced in one application, and that it was only necessary to designate upon the application which of the four sections was the home section; and that in accordance with this suggestion the appellant, through his attorney, indorsed on the application the words: "Settlement is on No. 4."
We also find from the evidence as stated in appellant's bill of exception as heretofore referred to, that at the time that appellant's application was filed in the Land Office for sections 4, 6, 2 and 8, there was no erasure or marking out of the last named section; and the evidence in the record does not definitely show when this erasure was made in appellant's application, but upon the back of this application appears an indorsement to the effect that sections 4, 6, 2 and 8 were applied for; and is the further indorsement that the application was received in the Land Office August 24, 1897, and awarded October 21, 1897. This indorsement is signed by the Commissioner of the Land Office.
On September 30, 1897, the appellant by a separate application applied again to purchase section 8, which was then classified as dry grazing lands; and that this survey was awarded to him on October 21, 1897, the same day that the award was made of sections 4, 6 and 2. This last application states that it is an amendment to the application previously made by the appellant, that is the application of date August 23, 1897. The date of the making of this last application, which was September 30th, seems to be the time in which the original application was amended, and we take this to mean, where there is no other evidence to the contrary, that the change or erasure made in the original *Page 466 application by drawing a line through section 8 was made on the day that this last application was filed. At the time of the original application, all of the four sections as applied for by appellant were classified as dry agricultural lands except section 2, and such was the classification at the time that appellant's original application was filed in the General Land Office, and at the time that the appellee applied to purchase and filed his application for section 6, the survey in controversy.
Thus it is seen that if we eliminate section 2, or in other words, regard it as classified as dry grazing land, the application of the appellant as actually filed in the Land Office embraces three surveys of agricultural land which he applied to purchase, when the law then existing did not authorize a purchase of more than two agricultural sections.
We may admit the rule to be that the burden rests upon the one asserting under the subsequent application to establish the facts that show the superiority of his right; or, in other words, that the prior applicant acquired no right; but in this case we are of the opinion that the appellee has discharged this burden, for the reason that when the appellant filed an application in the Land Office to purchase three agricultural surveys, and the application was in that condition when actually received and filed by the Commissioner, its invalidity is apparent, and the one desiring to subsequently purchase could act upon the condition of the application as there found to be filed, and if then discovered to be invalid, his superior right would be established. The original application being invalid when filed in the Land Office the burden rested upon the appellant to show the facts and circumstances that would relieve it of its invalidity prior to the time that the appellee applied to purchase.
No attempt was made by the appellant to show that the erasure of section 8 occurred or was made under his authority prior to the time that the appellee filed his application in the Land Office; but as said before, on the contrary, it reasonably appears that such change was not made until the purported amended application was filed by the appellant on the 30th of September, which was a time subsequent to the making and filing in the Land Office of the appellee's application.
We reiterate the doctrine announced in the original opinion to the effect that it is not the policy of the law to recognize the validity of an application which embraces more sections of agricultural land than the applicant would be entitled to purchase. Such an application, if recognized, would have the effect of taking such land off the market, and thereby suspend the right of other qualified purchasers to acquire any part of such lands to such a time as the original applicant should see fit to correct or erase from his original application some of the surveys classed as agricultural, and thereby reduce it to the number which he is authorized under the law to purchase.
The motion for rehearing is overruled, and the request for additional findings of fact is complied with to the extent stated in this opinion.
Overruled. *Page 467