O'Keefe v. Robison

• Court: Texas Supreme Court
• Writing for the Court: Cureton
• Citation: O'Keefe v. Robison, 292 S.W. 854, 116 Tex. 398 (Tex. 1927)
• Decision Date: 09 March 1927
• Parties: O'KEEFE v. ROBISON.

Page 854

292 S.W. 854

O'KEEFE v. ROBISON.

Supreme Court of Texas.

March 9, 1927.

Application by Robert E. O'Keefe for leave to file a petition for mandamus to be directed to J. T. Robison, Commissioner of the General Land Office. Motion overruled.

Reeder & Reeder, of Amarillo, for relator.

CURETON, C. J.

This proceeding is upon motion for leave to file a petition for mandamus. The prayer is that this writ issue requiring the respondent, J. T. Robison, Commissioner of the General Land Office, to issue a permit to the relator authorizing him to prospect for oil and gas on lands which, it is claimed, are public lands. The land involved is some 469 acres lying in the bed of Dixon creek, in Hutchinson County, Tex.

It is alleged that Dixon creek is a statutory navigable stream, and that therefore the bed of the stream is the property of the state. This insistence is predicated upon Revised Statutes, article 5302, which has been the law of this state since the Act of 1837 of the Republic of Texas. This act declared that all streams, so far as they maintain an average width of 30 feet, shall be considered navigable streams, and should not be crossed by survey lines.

For reasons which will appear, we will pretermit any discussion as to the ownership of the beds of navigable streams.

The motion before us must be determined adversely to the relator, for two reasons: First, because necessary parties have been omitted from the petition; and, second, because the land here involved has been patented, and these patents, in so far as the petition discloses, remained unchallenged by the state. The petition quotes the order of the respondent rejecting the application for the permit, in which it is stated that the application is rejected because the land here involved is within patented surveys, and not subject to permit. The allegation is also made in the petition that certain of the surveys have been patented, and as to the others contracts of sale and purchase have been heretofore entered into. The terms of these contracts, however, are not alleged, and we are not able to determine whether the commissioner could cancel the same or issue permits without regard thereto. However, it is obvious that the patentees and contract holders of the lands here involved, or their vendees, are interested in the result of this litigation, and are necessary parties.

The law as declared by this court has long been that mandamus will not issue unless all parties whose interests may be affected by the result of the litigation are made parties to the suit, so that they may have their day in court. Chappell v. Rogan, 94 Tex. 492, 62 S. W. 539; Nevitt v. Wilson (Tex. Sup.) 285 S. W. 1079.

The petition for mandamus attacks the validity of the patents heretofore issued on the lands here involved. The petition, in part, alleges:

"But your petitioner represents and respectfully suggests to this honorable court in that regard that in so far as any private surveys have been extended across or over portions of any part of the bed of Dixon creek within the area embraced in petitioner's application, not made under the laws of the state relating to permits or leases to prospect for and develop oil and gas, and not made under the provisions of the laws relating to...