John M. Crockett, Executor, v. John B. Robinson, 20 Tex. 487

Wheeler, J. The ground on which the plaintiff’s evidence was excluded evidently was, that his residence was outside of the lines of the

section of land which he claimed as a colonist. It included his improvements, but not his residence; and the question is, whether, where the house and improvements were upon different sections, the claimant was confined to that on w'hich his house was situated, or might select that which included his improvements, though his house was upon the adjoining section. The decision of the question depends mainly on the construction to be given to the 1st

Section of the Act of the 21st of January, 1850, (Hart. Dig. Art. 2229,) which declares that “ all actual settlers who have emigrated to this State as colonists, and settled within the limits of the colony,” shall be entitled to the quantity of land as therein provided; that is, “ each head of a family shall be entitled to six hundred and forty acres of land, including his or her improvements,” &c. Upon obtaining their certificates, as provided in the Act, the settlers had a right so to apply them as to include their improvements. Of what must these improvements consist ?

If we look at the Act of 1841 and the Joint Resolution of 1843, under which the contracts to colonize this territory were made, we shall find that by the former the colonists were required to have built a cabin, and kept in cultivation and under a good fence at least fifteen acres on the tract received by them; (Hart. Dig. Art. 2012;) and by the latter the contractors were required to have surveyed in sections and built cabins on the land, and placed families therein; and the families were required to inclose and cultivate fifteen acres for at least three years. (Hart. Dig.

Art. 2103.) These were the improvements contemplated by the laws and contracts of colonization. But the Act of 1850 adopted a new and more liberal policy in respect to the colonists. It dispensed with residence upon the land they should select, and only required that they should have emigrated to the State as colonists, and settled within the limits of the colony. (Hart. Dig. Art. 2229.) In making their selections, it gave them the right to include their improvements.

But as it did not make their rights to land in any degree to depend, as by the former laws they were made to depend, upon their improvements, it cannot fairly be inferred, nor is it believed ever to have been supposed, that it was intended that, to entitle them to include their improvements, they must have been such as were required by the former laws, in order to entitle the colonists to land. There is nothing in the provisions of the Act to favor such a supposition.

Nor do we see anything in its provisions which necessarily required a residence upon the land as an indispensable constituent of the improvements .they were'entitled to include in making their selection. Doubtless the farm and residence were generally upon the same section; but we do not perceive that this must necessarily have been, the case. If such a custom existed, in disposing of the colonists, as the plaintiff proposed to prove, it was not always the case.

Such a custom, moreover, would probably be known to the Legislature; and if they had intended to require the claimant, in all cases, to include his residence, they would probably have so expressed it in the law. It was evidently intended that the selection should be confined to the surveys previously made, where, as in this case, the land had been sectionized. (Id. Art. 2234, 2238.) And if, having respect to the previous surveys, the residence and farm, or other improvements, could not both be included, no good reason is perceived why the claimant should be required to include the former rather than the latter.

It will not be contended that in that event he would he entitled to include neither, in preference to the holder of a certificate who had no improvement upon the

section on which either the residence or farm was situated. The plaintiff proposed to prove that he had been put in possession of this

section by the agent of the colony contractors. If the field-notes of the former survey had been accessible, they might have been annexed by the Commissioner to the entry he was required to make of the plaintiff’s claim, and thus a resurvey would have been dispensed with. (Id. Art. 2236, 2237, 2238, 2239.) The act of the Commissioner would then have been an appropriation in favor of the plaintiff of this particular land; to which, it is conceived, it must have been held the plaintiff was entitled. We conclude it was not absolutely indispensable to the plaintiff’s right to select the

section on which his improvements were, and so to include his improvements, that his residence should have been upon that section; and, consequently, that there was error in excluding the evidence offered by the plaintiff; for which the judgment must be reversed and the cause remanded. Reversed and remanded.