
    J. Thomas v. R. W. Porter et al.
    (Case No. 3356.)
    1. Pre-emption.— One occupying a rented place as a tenant removed with one of his family, a son, to a point on the public domain three miles distant, and began to make improvements, until three months afterwards, when he removed thither the rest of his family and remained there permanently. Held, (1) It must be presumed that he took possession of the place to which he removed for the purpose of making it his home, and it became such from the time he took possession.
    
      (2) In a contest with a subsequent locator, Ms failure to procure a survey of the land within twelve months after his settlement, if prevented by the conflicting location, worked no forfeiture of pre-emption rights; and the fact that he caused the field notes of Ms pre-emption survey to be returned to the general land office within twelve months after the passage of the act of May 26, 1873, entitled “An act for the benefit of actual occupants of the public lands,’’gave him the better right to the land.
    Appeal from Burleson. Tried below before the Hon. A. S. Broadus. This was a suit filed by appellant against appellees R. W. Porter and M. H. Porter, on the 23d of ¡November, 1874, to cancel a patent held by appellees for one hundred and seventy-seven acres of land, so far as it conflicted with appellant’s claim to one hundred and sixty acres of the land as a pre-emptor.
    During the year 1870, appellant was living with his family as a tenant on the farm of appellee R. W. Porter, some three miles from the land in dispute. In December, 1870, or January, 1871, appellant with one son went on the land in controversy and remained there until March 15, 1871, when he removed his wife and the balance of his family on the place. Within twelve months after his settlement he applied to the deputy surveyor of the county for a survey of the lands. The surveyor refused, because appellees had already located a certificate on the land, and appellant filed a suit for maoidamus against him December 11, 1871. This suit was dismissed at the August term, 1873, for want of jurisdiction. September 3, 1873, appellant caused a survey of the land to be made and the field notes returned to the general land office. Appellant with his family has continued to live upon the land, has made valuable improvements upon it, and claims it as his homestead under the act of August 12, 1870, “To regulate the disposal of the public lands.” Meanwhile appellees had this land located and surveyed by virtue of a genuine land certificate for one labor. On the 10th of February, 1871, they filed in the land office the field notes of the survey with the certificate, and on May 9, 1871, a patent issued to them for the land.
    Appellees filed their answer September 6, 1875, and in a plea in reconvention set out their title and asked judgment for the land. On the next day trial was had, the cause submitted to the court, and judgment for the defendants. Plaintiff appealed informa pauperis.
    
    
      Geo. W. Scott, for appellant.
    
      W. K. Homan, for appellees.
    We insist that the facts of this case do not show a settlement by appellant prior to March 15,1871, the date on which he went on the land with his family and personal effects. It does not appear with what intention he and his son went on the land in December, 1870, and they were but casual trespassers, their home being elsewhere. If we are correct in this view (in which we are sustained by the circumstances that appellant moved to and settled on the land with his family March 15, 1871, and made his affidavit of settlement, as admitted in his petition, March 18, 1871), then the appellees, by their location and survey, February 6, 1871, obtained the older' and superior equity, and their right cannot be affected by appellant’s settlement of March 15th. But, if it be conceded that the acts of appellant in December, 1870, constituted a pre-emption settlement on the land, such settlement gave him no right to the land further than a mere right of preference to acquire the title by compliance with the further requirements of the preemption law. By his neglect to procure a survey within twelve months from the settlement, or to prosecute his suit to compel a survey, his preference was lost, and the location and survey of appellees, February 6, 1871, having been pursued by them and perfected into a patent before any survey was made by appellant, became superior to appellant’s claim. Teel v. Huffman, 21 Tex., 782.
   Delaney, J. Com. App.

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 failure 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.]  