Watts v. Wheeler

• Decision Date: 13 March 1895
• Citation: 30 S.W. 297
• Parties: WATTS et al. v. WHEELER.
• Court: Texas Court of Appeals

30 S.W. 297

WATTS et al. v. WHEELER.

Court of Civil Appeals of Texas.

March 13, 1895.

Appeal from district court, Crosby county; W. R. McGill, Judge.

Action by Watts & Walker against J. H. Wheeler. From a judgment for defendant, plaintiffs appeal. Affirmed.

D. B. Baker, for appellants. Joe E. Rosson and L. G. Wilson, for appellee.

Conclusions.

HEAD, J.

The land in controversy is public school survey No. 810, containing 640 acres, situated in Crosby county. This section was classified as "dry or pastoral land," and was by the commissioner of the general land office, on July 30, 1892, leased to appellants for the term of five years, in compliance with the act of April 28, 1891. Appellee being an actual settler upon agricultural school section No. 8, which adjoined the above No. 810, on November 23, 1892, made application in due form for the purchase of said last-named section, accompanied with the affidavit, bond, and first payment required by the statute. This application was refused by the commissioner, upon the ground that the prior lease to appellants prevented the sale. Appellants sued in trespass to try title, relying upon their lease; and appellee, in defense, specially pleaded his application to purchase, accompanied with the allegation that within four months after making the same he had taken actual possession, and placed improvements (a fence) thereon of value more than $100. The court below found in favor of appellee.

The provisions of the statute which are believed to control the question will be found in Supplement to Sayles' Texas Civil Statutes, and are as follows:

"Art. 4042. When any portion of said land has been classified to the satisfaction of the commissioner, under the provisions of this act or former laws, such land shall be subject to sale, but to actual settlers only, and in quantities of not less than eighty acres and in multiples thereof, nor more than one section containing six hundred and forty acres more or less: provided, that * * * lands classified as purely pasture lands and without permanent water thereon may be sold in quantities not to exceed four sections to the same settler. * * *"

"Art. 4045. * * * Any bona fide settler who has heretofore purchased or who may hereafter purchase one section of agricultural or watered land and no more, shall have the right to purchase three dry and strictly pastoral sections. * * *"

"Art. 4051. The public lands and all lands belonging to the public free schools, asylums or university fund shall be leased by the commissioner of the general land office, under the provisions of this act. All of such lands lying west of the Pecos river, and all of such lands lying south of the Texas and Pacific Railroad, except the counties of Concho, McCulloch, Coke, Sterling, Glasscock, Midland, Ector, Tom Green, Howard and Martin, and all university lands, shall be leased for a period of not longer than ten years, and all other such lands lying north of the Colorado river, and north of the Texas and Pacific, and the counties hereinbefore excepted from the ten year lease, shall be leased for a period not longer than five years. * * *

"Art. 4052. * * * No lands which are now, or which may hereafter be classified as grazing lands within the territory where ten years' lease is authorized, as set forth in the preceding section of this act, shall be subject to sale during the term of the lease contract thereof, and the possession of the lessee shall not be disturbed during the term of his lease. All lands the lease of which is fixed by this act at not exceeding five years, shall be leased subject to sale; provided, that if any lessee has actually settled upon any section of land included in his lease, and erected thereon his residence and substantial improvements, for permanent settlement, such section shall not be sold, nor shall such settler be disturbed during the term of his lease. * * * In all cases when an actual settler may desire to settle on any grazing land, which may have been leased under a five year contract of lease, such actual settler shall first...