Poole v. Giles

• Decision Date: 26 March 1952
• Docket Number: No. A-3272,A-3272
• Citation: 151 Tex. 224,248 S.W.2d 464
• Parties: POOLE et al. v. GILES et al.
• Court: Texas Supreme Court

Page 464

248 S.W.2d 464

151 Tex. 224

POOLE et al. v. GILES et al.

No. A-3272.

Supreme Court of Texas.

March 26, 1952.

Rehearing Denied May 21, 1952.

Masterson & Pope, Angleton, Alex Pope, Jr., Fort Worth, for petitioners T. J. Poole, Jr., et al.

Rucks, Enlow & Kee, Angleton, for petitioner J. L. Ducroz.

Price Daniel, Attorney General of Texas, and Charles D. Mathews, First Assistant Attorney General, Jesse P. Luton, Jr., and E. Jacobson, Assistant Attorneys General, all of Austin, and Bell, Dyche & Bell, of Houston, for respondents.

WILSON, Justice.

Plaintiff below (T. J. Poole, Jr., et al. and Donald K. Poole) sought and gained an injunction against the School Land Board of Texas prohibiting that body from accepting bids and executing oil and gas leases to certain land in Brazoria County, Texas. The trial court granted a temporary injunction, which, on appeal, has been dissolved. 239 S.W.2d 665. Immediately thereafter the School Land Board accepted bids and executed leases upon the land in question. Plaintiffs applied for and were granted writ of error.

An order dissolving a temporary injunction is effective immediately even though not final. Rule 385(d), Texas Rules of Civil Procedure; Alpha Petroleum Co. v. Terrell, 122 Tex. 257, 59 S.W.2d 372; Duncan v. Boyd, 1926, Tex.Civ.App., 288 S.W. 281.

The temporary injunction was sought on the basis that the Board exceeded its authority. Since the injunction was dissolved at the time the Board acted, an action for contempt would not lie. It would be a vain thing for this court to reinstate the injunction when the act sought to be prohibited has already occurred. Therefore this case is moot. City of West University Place v. Martin, 1939, 132 Tex. 354, 123 S.W.2d 638; International Ass'n of Machinists v. Federated Ass'n of Accessory Workers, 1939, 133 Tex. 624, 130 S.W.2d 282; West v. Culpepper, 1940, 135 Tex. 156, 140 S.W.2d 166; Service Finance Corporation v. Grote, 1939, 133 Tex. 606, 131 S.W.2d 93. Plaintiffs are not without a remedy. See Art. 5421c et seq., Vernon's Annotated Civil Statutes.

We do not pass upon the merits of the controversy. The case is dismissed. International Ass'n of Machinists v. Federal Ass'n of Accessory Workers, supra.

SHARP, Justice (dissenting).

The majority opinion of the Court in this case decides a question of great public importance, and involves the determination of public rights or interests under conditions which may be repeated any time. By that opinion the rights of petitioners have been destroyed, as well as the rights of others similarly situated, under the theory that, based upon the facts of this case, the issues involved have become moot, and that, therefore, this Court should not determine the questions now brought before it. By dismissing the case because the action has become moot, the results of the majority opinion affect not only the rights of petitioners, but also the rights of others, not parties to the suit. The following are some of the results of the majority opinion: (1) It permits the Commissioner of the General Land Office to cancel patents that have been regularly issued by the State, and to execute mineral leases on the lands described in said patents, even though he is not authorized by law to do so; (2) it compels owners of land acquired by patents to litigate the title to the land, at great expense, with those holding rights or leases issued by the Commissioner of the General Land Office without any authority of law; and (3) it continues in force the theory that the State is a necessary party in a suit to prevent the Commissioner of the General Land Office from cancelling a patent and issuing mineral leases thereon, and that such suit cannot be maintained by the owner of the land without first obtaining the consent of the State through an act of the Legislature authorizing such suit, despite Subsection (j) of Section 6 of Article 5421c, enacted in 1939.

To get a clear picture of the issues involved, it is necessary to review the proceedings in the trial court, the proceedings in the Court of Civil Appeals, and the proceedings in this Court. This suit was brought by T. J. Poole, Jr., and Donald K. Poole against the School Land Board and the Commissioner of the General Land Office. The Brazos Oil & Gas Company intervened, and is aligned with the respondents; and J. L. Ducroz intervened, and is aligned with petitioners.

The facts are undisputed. The purpose of this suit by petitioners was to enjoin the School Land Board and the Commissioner of the General Land Office from leasing, or attempting to lease, for mineral development, certain areas that had been patented by the State. On February 28, 1951, the trial court enjoined the members of the Board from 'accepting any bid or bids for an oil and gas lease or leases on any of the area located within the boundaries of the following grants and patents in Brazoria County, Texas, heretofore issued by the State of Texas and the Republic of Mexico and State of Coahuila and Texas': (1) The Calvin Sumrels Survey dated on or about August 28, 1849, to approximately 1476 acres of land; (2) the J. H. Gamble Survey dated on or about August 30, 1847, to approximately 1476 acres of land; (3) the William H. Butler Survey dated on or about July 3, 1847, to approximately 1476 acres of land; (4) the Rebecca A. Murrie Survey dated on or about February 11, 1886, to approximately 1280 acres of land; (5) the Parker Williams Grant dated December 13, 1832, to approximately 1107 acres of land; 'and from granting or purporting to grant any oil and gas lease or leases on any of the area within the boundaries of said patents, surveys or grants or any of them, or otherwise clouding or encumbering the title of said plaintiffs to said area or areas * * *.'

It was also decreed: 'The Temporary Injunction herein granted shall remain in full force and effect in accordance with prayer of Plaintiffs and Plaintiff Intervener until a Final Hearing herein on the merits of this cause at which time there shall be determined whether such injunction shall be made permanent unless and until such time as the Attorney General of the State of Texas institutes suit in a proper court to cancel and annul said patents and by such action does cancel and annul said patents insofar as they affect the lands in question.'

It is undisputed that the areas which the Board advertised for lease for mineral development are located within the patent calls of the surveys above described, and that petitioners own interests therein. It is also undisputed that the patents issued for such surveys have never been cancelled, nor their validity questioned by judicial proceedings, and that they were declared void by the Commissioner of the General Land Office, for the purpose of executing mineral leases thereon.

The Court of Civil Appeals based its decision on the case of Short v. W. T. Carter & Bro., 133 Tex. 202, 126 S.W.2d 953, 956. That case involved the authority of the General Land Commissioner to execute mineral leases on certain tracts as being 'unsold public free school land,' described in Section 8 of Chapter 271, Acts, Regular Session, 42nd Legislature, enacted in 1931, the pertinent part of which Act reads as follows: 'Any person who discovers an unsurveyed area of school land which has not been listed on the records of the Land Office as school land, and is not in actual conflict on the ground with land previously sold or appropriated and which appears on the official Land Office map as unsurveyed land, may apply in writing to the county surveyor and have the same surveyed, and after the field notes thereof have been returned to the Land Office and approved and filed with the Land Commissioner, shall have a preference right for sixty (60) days thereafter to purchase a mineral lease thereon at the minimum price fixed by the Land Commissioner, in addition to the other consideration provided herein.' (Emphasis supplied.) The question involved in that case was whether the Commissioner of the General Land Office was authorized to have the land described in the Morales League resurveyed, in order to ascertain if there was any land therein that was vacant and unsold. The facts show that the land was resurveyed, and that a vacancy of about 3000 acres was discovered. The question of declaring patents void without judicial process was not involved in that case.

It was held in the Short case that the plea to the jurisdiction filed by the Commissioner of the General Land Office as being in effect a suit against the State should have been sustained, and the judgment of the trial court was reversed, and the temporary injunction issued by the trial court was dissolved. The Court of Civil Appeals in this case felt that the decision in the Short case controlled its decision, and so stated in its opinion, and it reversed and rendered the cause against petitioners by dismissing the suit, and dissolved the temporary injunction issued by the trial court.

Article 5420 expresses the public policy of this State relating to public lands held occupied, or claimed by adverse claimants, and it places the duty upon the Attorney General to institute suit therefor. The applicable part of the Article reads: 'When any public lands are held, occupied, or claimed by any person, association or corporation, adversely to the State, or to any fund or when lands are forfeited to the State for any cause, the Attorney General shall institute suit therefor * * *,'

It is undisputed that petitioners claim the land described in the patents issued thereon, and that no action has been instituted in the courts to cancel the patents. It is also undisputed that no one has claimed that there is a vacancy or an excess in such surveys subject to be leased by the State for mineral development, as was done in the Short case; but it is contended that the authority to support the action of the Commissioner of theGeneral Land Office is found...