Cravens v. Brooke (17 Tex. 268, 1856)

Hemphill, Ch. J.

The appellee, Henry L. Brooke, under some arrangement with one Fink, the administrator of a deceased owner of the Haly league survey in Shelby county, entered upon, settled and improved, in the year 1849, a portion of said survey. The certificate of Haly was never recommended for patent. Several years after the survey for Haly, the head-rights of others were located on the land, but no surveys were made on these last locations, and on the 11th February, 1853, the land became vacant by operation of the Act of the 10th February, 1852. On the 24th March, 1853, one of the appellants, James J. Cravens, located three one-third of a league claims, upon the original survey, and Richard Hooper also located 476 acres. Cravens was not one of the locators before the 11th February, 1853 : and though Richard Hooper had located a portion of the league before that date, yet it does not appear that his location subsequent of 476 acres, was on the land claimed in this controversy ; or, in fact, whether any land would remain for his location, after the locations for Cravens, were satisfied. In the meantime, the appellee continued to reside at his improvement upon the land, and on the 12th April, 1853, appeared before the county surveyor, and claimed a preemption of three hundred and twenty acres, tendered the surveying fees, and took an oath intended to be-in compliance with the law, (Hartley’s Digest, Art. 2135,) so as to entitle him to the survey without the necessity of furnishing1 a certificate. On the 30th of August, 1853, he renewed the oath, but more fully, and1 specifying the facts showing that the land was public, vacant domain on the 12th February, 1853, at which time he claims to have become a settler, and applying for the survey of his pre-emption of 320 acres. The surveyor refused ; and this suit was instituted for a mandamus -to compel a survey.

The ground of refusal by the surveyor was the previous locations of 24th March, 1853, by Cravens and Hooper, the appellants, upon which partial surveys were made. The locators, Cravens and Hooper, subsequently appeared and made themselves parties defendants.

The leading question in this case is, whether the continued residence of Brooks, after the land became vacant, at his settlement and improvement previously made on the land, was tantamount to a new settlement by him upon such land, so as to bring him within the purview of the Act of 1845, (Hart. Dig. Art. 2130,) and give him a valid claim to a pre-emption. This Act declares that individuals who have settled upon and improved, or might thereafter settle upon and improve, a portion of the vacant public domain which has been neither filed upon, entered, located nor surveyed, by virtue of some genuine legal and valid certificate or other evidence of title previous to such settlement, and improvement, shall have the privilege of locating, &c., three hundred and twenty acres, &c., so as to include his improvements,