De Meritt v. Robison

• Decision Date: 10 March 1909
• Citation: 116 S.W. 796
• Parties: DE MERITT v. ROBISON, Land Com'r.
• Court: Texas Supreme Court

116 S.W. 796

DE MERITT v. ROBISON, Land Com'r.

Supreme Court of Texas.

March 10, 1909.

Original petition for mandamus by F. J. De Meritt against J. T. Robison, Commissioner of the General Land Office, to compel respondent to accept relator's application to purchase public land. Denied.

Lock McDaniel, D. W. Doom, and D. H. Doom, for relator. R. V. Davidson, Atty. Gen., and Wm. E. Hawkins, Asst. Atty. Gen., for respondent.

BROWN, J.

De Meritt instituted this proceeding in this court to procure the issuance of a writ of mandamus to the Commissioner of the General Land Office requiring him to accept relator's applications to purchase two tracts of public land situated in Harris county; each tract containing 80 acres. The relator sought to purchase the land by virtue of the following articles of the Revised Statutes of 1895:

"Art. 3498a. All public school, university, asylum and public lands specially included under the operation of this title, all the lands now owned by the state situated within the reservation known as the `Pacific Reservation,' which were taken off the market and reserved from sale by an act approved January 22, 1883, containing valuable mineral deposits, are hereby reserved from sale or other disposition, except as herein provided, and are declared free and open to exploration and purchase under regulations prescribed by law, by citizens of the United States and those who have declared their intention of becoming such; provided, that all who have located and recorded valid claims under previous valid laws and have not abandoned same, but are engaged in developing same, shall have a prior preference right for ninety days after the passage of this title in which to relocate same under this title."

"Art. 3498j. Within twelve months after the filing of the affidavit hereinafter provided for, any person or association of persons qualified as required by article 3498a, shall have the right to purchase and obtain patent by compliance with this title, or any of the lands of the state which are specified or included in article 3498a, containing valuable deposits of kaolin, baryta, salt, marble, fire clay, iron ore, coal, oil, natural gas, gypsum, nitrates, mineral paints, asbestos, marl, natural cement, clay, onyx, mica, precious stones or any other nonmetallic mineral and stones valuable for ornamental or building purposes or other valuable building material, in legal subdivisions, in quantity not exceeding one section; provided, that where any such parties shall have heretofore expended, or shall hereafter expend, five thousand dollars in developing the aforesaid mineral resources of any of said lands, such party shall have the right to buy one additional section and no more, and to include in the purchase any section or part thereof on which the work may have been done," etc.

The relator alleged that in pursuance of the law he had the said lands surveyed and the field notes returned to the General Land Office, which were approved as correct by the commissioner. It is alleged, in detail, that the relator performed every act that the law required of him in order to entitle him to purchase the land. The respondent admitted the truth of all of the facts alleged in the petition, but averred "that the two tracts of submerged lands, which are described in relator's petition in this cause, are, according to the official map of Harris county, Tex., and the chart of the United States Coast and Geodetic Survey, and in fact under the shallow waters of San Jacinto Bay, which is an arm of Galveston Bay, which, in turn, is a portion of the Gulf of Mexico, and that all and every portion of each of the two tracts of land aforesaid is within tide water limits and under the ebb and flow of the tides from the high seas through the Gulf of Mexico, Galveston Bay, and San Jacinto Bay aforesaid." The facts alleged and admitted on both sides show the land to be submerged lands under the shallow waters of San Jacinto Bay, which is an arm of Galveston Bay, and that at ordinary tide the land is covered with water to the depth of 18 inches, but when the tide ebbs the land is uncovered. The question which arises upon this state of facts is: Does this...