Landry v. Robison

• Decision Date: 10 March 1920
• Docket Number: (No. 3183.)
• Citation: 219 S.W. 819
• Parties: LANDRY v. ROBISON, Com'r, et al.
• Court: Texas Supreme Court

Page 819

219 S.W. 819

LANDRY v. ROBISON, Com'r, et al.

(No. 3183.)

Supreme Court of Texas.

March 10, 1920.

Original proceedings for mandamus by Mrs. Clara Landry against J. T. Robison, Commissioner, and others. Writ awarded.

T. M. West, of San Antonio, John W. Parker, of Houston, and W. H. Russell, of San Antonio, for plaintiff.

C. M. Cureton, Atty. Gen., W. F. Schenck, Asst. Atty. Gen., and Huggins & Kayser, of Houston, for defendant.

GREENWOOD, J.

Respondent P. J. Duffy, being duly qualified, and desiring to obtain the right to prospect for and develop petroleum and natural gas in 195 acres of land in the bed and channel of the San Jacinto river, near Humble, in Harris county, under chapter 173, approved April 9, 1913, of the General Laws of the Thirty-Third Legislature, p. 409, filed his written application therefor, on January 12, 1916, with the county surveyor of Harris county, who immediately filed and recorded same, and within 90 days, surveyed the 195 acres and delivered to said respondent field notes, together with said application, and thereupon said application and field notes, with fee, were filed with the Commissioner of the General Land Office, who, on April 9, 1916, approved same, and issued to respondent Duffy a permit to prospect for and develop the petroleum and natural gas that might be under the surface of said 195 acres of land.

The San Jacinto river is a navigable stream within the meaning of R. S. art. 5338, retaining an average width of more than 30 feet.

Relator, Clara Landry, is the owner of whatever right was acquired by her deceased husband, Emmett Landry, who, being duly qualified, and desiring to obtain the right to prospect for and develop the petroleum and natural gas that may be in 156.3 acres of the bed and channel of the San Jacinto river in Harris county, being a part of the 195 acres surveyed for respondent, Duffy, filed a written application for said right with the county surveyor of Harris county on June 20, 1917, under chapter 83, approved March 16, 1917, of the General Laws of the Thirty-Fifth Legislature, page 158 (Vernon's Ann. Civ. St. Supp. 1918, arts. 5904-5904w), and paid the filing fee, and the surveyor filed and recorded the application, and within 90 days surveyed and platted the 156.3 acres. Emmett Landry thereafter, on June 30, 1917, filed the application, field notes, plat, and proper affidavit in the General Land Office, paying the filing fee and 10 cents per acre for each acre applied for, and the commissioner found same to be correct.

On July 6, 1917, the permit to respondent Duffy was canceled by the Commissioner of the General Land Office for failure to comply with the terms of the permit to said respondent.

On July 6, 1917, the respondent N. E. Meador, who was duly qualified, filed with the county clerk of Harris county a written application for the right to prospect for and develop petroleum and natural gas in the 195 acres surveyed for respondent Duffy, referring for description of the land to the permit issued to Duffy and the field notes on which the same was based, and the county clerk filed and recorded the application and made the appropriate notation, and thereafter, when the Commissioner of the General Land Office received said application, and accompanying sworn statement, he filed same and on August 10, 1917, he issued to respondent Meador a permit, purporting to confer on him and his assigns the exclusive right to prospect for and develop petroleum and gas within the area of said 195 acres of land. The claim of respondent Meador has since passed to the respondent West Production Company, save a 1/24 royalty interest reserved by respondent Meador.

The Commissioner of the General Land Office rejected the application of Emmett Landry because he was of the opinion that the act of April 9, 1913, authorized the application of respondent Duffy and the survey and permit thereunder, and because he was also of the opinion that, even if these proceedings were unauthorized, they had the effect to convert the 195 acres into "surveyed land," and that hence the application of respondent Meador alone complied with the act of March 16, 1917, and therefore said respondent and his assigns had the exclusive right to prospect for and develop the petroleum and gas in the land.

The relator has succeeded to the right of an applicant who complied with every requirement prescribed by the act of March 16, 1917, to entitle one to a permit to prospect for and develop petroleum and gas in the 156.3-acre tract, in the channel and bed of the San Jacinto river, provided said 156.3-acre tract was, on June 20, 1917, "unsurveyed land" in the river channel and bed within the meaning of that act. Unless the 156.3 acres became "surveyed land" by virtue of the proceedings under the Duffy application, manifestly the tract had no such status.

We are of the opinion that the act of April 9, 1913, under which the proceedings by Duffy were had, in no wise authorized same, and that Duffy's application, survey, field notes, and permit were void.

It is the contention of respondent that the bed or channel of a navigable river comes within the meaning of "other public lands" in section 1 of the act of April 9, 1913, whereby "all public school, university, asylum and the other public lands, fresh water lakes, islands, bays, marshes, reefs, and salt water lakes, belonging to the state of Texas," are declared "included within the provisions of this act" and "open to mineral prospecting, mineral development and the lease of mineral rights therein."

Had there been no statutory reservation of the beds or channels of navigable rivers, we do not think that such general language as "other public lands" could be held to include the soil beneath navigable waters. For our decisions are unanimous in the declaration that by the principles of the civil and common...