
    GAMMAGE v. POWELL.
    Appeal from -Nolan county.
    The land in controversy is in Nolan county. Powell settled on it December 20, 1880, and applied for it as a homestead donation October 28,1881. On April 11,1881, Gammage located the unlocated balance of a headright certificate on a tract of land embracing the 160 acres in dispute, and the tract was. patented under that location October 18, 1881. Gammage contends that the land was not. within thirty days prior to the time Powell made his application, public unappropriated domain, and therefore his application was ineffective. Powell contends and so alleges, that the location and patent of appellant was void, because at the time of the location and patent the land was in Nolan county, and withdrawn from appropriation by location of land certificates by the Act of July 14, 1879. (General Laws, page 48.) Held: Article 3940, Revised Statutes, intended to protect land from location, for the period named after the occupancy or settlement began, for the benefit of persons seeking a homestead donation. Where the application was made and filed, the survey made within twelve months after the application was made, and being recorded in the Surveyor’s Office, with the application for the land, was sent to the General Land Office about October 20,1882, Held: These facts fixed appellee’s rights, if the land had not been legally appropriated by another. Construing tks*r act .Inly 14, 1879, (General Laws, p. 48) in connection with the amendatory act of March 11, 1881, (General Laws, p. 20.) the court holds that Gansmage’s location patent is void, because ors land not subject to appropriation by land certificates except- as the same umy be permitted under the homestead pre-emption laws; but as-Powell was plaintiff, it devolved on Mm to prove his right to the land, which he fails to do. Reversed and remanded.
   Opinion by

Stay ton, J.  