Elms v. Giles, 6066.

• Citation: 173 S.W.2d 264
• Decision Date: 16 June 1943
• Docket Number: No. 6066.,6066.
• Parties: ELMS et al. v. GILES et al.
• Court: Texas Court of Appeals

173 S.W.2d 264

ELMS et al. v. GILES et al.

No. 6066.

Court of Civil Appeals of Texas. Texarkana.

June 16, 1943.

Rehearing Denied July 1, 1943.

Appeal from District Court, Gregg County; W. H. Strength, Judge.

Suit by W. C. Elms, Jr., against Bascom Giles and others to determine the existence of a vacant unsurveyed area after Commissioner of the General Land Office had determined that area was not vacant on plaintiff's application to lease such land. The State of Texas intervened. From an order of dismissal, plaintiff and intervener jointly appeal.

Affirmed.

W. E. Jones, of Longview, Gerald C. Mann, Atty. Gen., Cecil C. Rotsch, Asst. Atty. Gen., and Fagan Dickson, Asst. Atty. Gen., for appellants.

Fountain, Cox & Sandlin and M. E. Sandlin, all of Houston, Bramlette, Levy & Bolton, of Longview, W. W. Mason, of Mexia, Turner, Rodgers & Winn and Frank J. Scurlock, all of Dallas, H. P. Smead, of Longview, Prentice Wilson, of Dallas, James B. Henderson and H. C. Walker, Jr., both of Shreveport, La., Barksdale Stevens and Robt. F. Higgins, both of Houston, W. F. Semple, Y. P. Broome and Donald Campbell, all of Tulsa, Okl., and Thompson, Walker, Smith & Shannon, of Ft. Worth, for appellees.

WILLIAMS, Justice.

This is a suit filed under the provisions of § 6, Art. 5421c, Vernon's Ann.Texas Statutes, further known as House Bill No. 9, Chapter 3, p. 465 of the Acts of the Regular Session of the 46th Texas Legislature, approved June 19, 1939.

W. C. Elms, Jr., as applicant, filed on September 20, 1939, with the county surveyor of Gregg County an application in duplicate, duly verified, to lease a certain area of land which applicant stated he believed to be vacant and unsurveyed land belonging to the free school fund of Texas, and therein described as being situated in Gregg County and bounded as follows: on the East by the Wm. Robinson H. R. Survey, on the South by the Henry Hathaway H. R. Survey, on the West by the Pewett & Turnbow leases, and on the North by the G. W. Hooper H. R. Survey. At a hearing upon the application had before the Commissioner of the General Land Office to determine whether a vacancy existed, the Commissioner on September 30, 1940, by his order and decree entered on said date, held that above area of land so alleged to be a vacancy was not in fact vacant. On December 26, 1940, within the 90 days period of time as provided for in subsection (d) of Section 6, supra, appellant, W. C. Elms, Jr., the applicant, filed this suit for the purpose of litigating the question of the existence of a vacant unsurveyed area. The field notes of the alleged vacant and unsurveyed land as set out in his petition described a strip 81 vrs. wide by 4800 vrs. long and is within the general description of the land set out in the application.

In Elms' original petition he named the Commissioner of the General Land Office of Texas, the Attorney General of Texas, and 258 others as defendants. He alleged that those so named except the Commissioner and the Attorney General "is and are claiming some character of right, title and interest and estate in and to said tract of land * * * or some part or parts thereof, adverse, prior and superior to and inconsistent with the aforesaid rights and claims of plaintiff"; "that long prior to September 20, 1939, the defendants Magnolia Petroleum Company, Humble Oil & Refining Company, Shell Oil Company, Stanolind Oil & Gas Company, Lucy Petroleum Company, W. D. Ambrose, C. F. Smith, W. L. Pickens * * * and the various other defendants herein named, drilled and have been operating wells upon this tract, * * * and/or have been receiving rents, royalties and proceeds of oil and gas taken therefrom * * *." Elms alleged in detail the compliance and performance by himself, the County surveyor of Gregg County, the surveyor appointed by the Land Commissioner to make the survey, and the Land Commissioner of all the procedural steps and requirements of Sec. 6, supra; and the action of the Commissioner denying his application. His 1st, 2d and 3rd amended original petitions contained the same allegations except as to names of defendants. The sole purpose of his amended petitions was to add new parties, the 3rd amended petition containing names of more than 300 defendants. The group of some twenty later herein discussed and styled the Harley group was named in all of above pleadings.

On October 31, 1941, the State of Texas, through its Attorney General, intervened. Its plea reads as follows: "Now comes the State of Texas by and through its Attorney General, Gerald C. Mann, and on behalf of the Public Free School Fund of the State of Texas, files this, its intervention, pursuant to the provisions of House Bill No. 9, Acts of the 46th Legislature, 1939, Article 5421C, Sec. 5[6], subsection j, V.A.C.S., and respectfully requests this Honorable Court to instruct the District Clerk to notify the Attorney General of the State of Texas of the date set for any preliminary hearing herein and the date set for trial hereof."

From time to time motions to dismiss and pleas in abatement for want of parties defendant were filed, urged and renewed by various defendants. Some filed formal answers. After a hearing on renewed motions to dismiss and on renewed pleas in abatement, the court on October 14, 1942, sustained same. Findings of fact and conclusions of law have been filed. From the order of dismissal W. C. Elms, Jr., and the State of Texas have perfected their joint appeal.

Omitting parts, the decree entered reads:

"The court after hearing evidence for and against said motions and pleas on the twelfth, thirteenth and fourteenth of October, 1942, and after argument of counsel, did on the 14th day of October, 1942, decree as hereinafter indicated.

"In connection with the motion to dismiss * * * it appears to the court that the same defendants filed a similar motion on May 18, 1942, and that a hearing on the last mentioned motion took place in this court on June 2, 1942, which hearing was participated in by the plaintiff and the intervenor The State of Texas, at which time evidence for and against the motion was heard, and at the conclusion of which hearing the court sustained the motion to the extent that it was decreed by the court that all persons owning any right, title or interest in the alleged vacancy (specifically described in plaintiff's pleadings) were necessary parties to the suit, and the court granted to the plaintiff a reasonable time within which to make said persons parties to the suit and obtain legal process on them. Thereafter, this case was regularly set for trial for August 3, 1942, but said setting was cancelled on the court's own motion. The case was then regularly set for October 12, 1942.

"The court finds and concludes that:

"(a) All persons owning any right, title or interest in the alleged vacancy (and who are necessary parties to this suit) have not been made parties defendant to the suit.

"(b) Legal process has not been obtained on all persons owning any right, title or interest in the alleged vacancy (and who are necessary parties to this suit) and said necessary parties are not before the court by answer, appearance, or otherwise.

"(c) The plaintiff has been granted a reasonable time within which to comply with the order of June 2, 1942, and he has failed and refused to comply with the same.

"(d) The plaintiff has not prosecuted the suit with diligence.

"In connection with the pleas in abatement of defendants Tide Water Associated Oil Company, J. W. Harper, C. P. Byram, Marvin Umsted, Mrs. Edna Umsted, a feme sole, Mrs. Aubrey Umsted Becker and husband, R. P. Becker, Susie L. Wadley, Elloine W. Moseley, and W. M. Peyton, the court, after hearing evidence for and against said pleas, is of the opinion that the allegations in said pleas are true and correct and that the law and facts are with the movants.

"It is therefore ordered, adjudged and decreed by the court that this case be and the same is hereby dismissed."

In the joint brief filed by W. C. Elms, Jr., and the State of Texas it is asserted: (1) The court erred "in holding it had no jurisdiction of the suit because certain persons who claim to own leasehold and royalty mineral interests in the land described in the application for vacancy were not named in the application and were not given notice as required by Sec. 6, supra"; (2) the court was in error in holding "that all persons claiming an interest in the land described in plaintiff's petition are necessary parties to a suit of this character to establish the existence of a vacant, unsurveyed area belonging to the Public Free School Fund"; and (3) the court's error in dismissing the suit on the ground that W. C. Elms, Jr., had not used reasonable diligence in preparing the case for trial and in the prosecution of same.

Subsection (c) of Sec. 6, supra, among other requirements provides that the applicant "shall also state the names and addresses of all owners or claimants of land or any interest therein and of leases of any character thereon, adjoining, overlapping, or including the land claimed to be vacant, so far as the same may be ascertained from the records of the General Land Office, and of the office of the County Clerk of the county in which the land is located and from the tax rolls of such county. * * *

"Upon filing of any such application with the Commissioner * * * the Commissioner shall forthwith cause a notice of intention to survey to be mailed to all persons named in the application as interested persons, and at the addresses given therein * * *. The notices shall be deposited in the Post Office at Austin, Texas, at least ten (10) days prior to the date fixed for the beginning of such survey. * * *

"A written report of the survey with field notes * * * shall be filed in the General Land Office * * *. The report shall state the names and the Post-Office addresses of all persons in possession of the land described in the...