Sawyer v. Robison

• Decision Date: 28 January 1925
• Docket Number: (No. 6334.)
• Citation: 268 S.W. 151
• Parties: SAWYER v. ROBISON, General Land Office Com'r, et al.
• Court: Texas Supreme Court

268 S.W. 151

SAWYER v. ROBISON, General Land Office Com'r, et al.

(No. 6334.)

Commission of Appeals of Texas, Section A.

January 28, 1925.

Motion for leave to file petition for mandamus by O. B. Sawyer against J. T. Robison, as Commissioner of the General Land Office, and others. Motion overruled.

Howth, Adams, O'Fiel & Hort, and Jos. A. Wisong, all of Beaumont, and Dies, Stephenson & Dies, of Orange, for relator.

GERMAN, P. J.

O. B. Sawyer is seeking leave to file a petition for writ of mandamus against J. T. Robison, as commissioner of the general land office, and James N. Parker and several others are named as respondents. His purpose is to require the commissioner by mandamus to cancel and set aside a certain oil and gas permit and lease heretofore granted to James N. Parker, and to compel him to issue to relator an exclusive oil and gas permit and lease on certain land in Orange county, Tex., being the bed or channel of Cow bayou between certain designated points. The following statement will reflect the essential facts:

1. December 4, 1919, James N. Parker filed with the county clerk of Orange county his application for permit to prospect for and develop oil and gas in the bed or channel of Cow bayou. No action appears to have ever been taken under this application.

2. December 11, 1919, James N. Parker filed with the county surveyor of Orange county his application for permit to prospect for and develop oil and gas in the bed or channel of Cow bayou, which he designates as unsurveyed land, describing the same as containing approximately 494 acres, giving a general but accurate description of the land. This application was made under the provision of chapter 83, Act approved March 16, 1917 (Vernon's Ann. Civ. St. Supp. 1918, art. 5904 et seq.).

3. December 26, 1919, Parker filed in the general land office the application filed by him with the county surveyor December 11, 1919, together with field notes and plat made by Jack Noguess, county surveyor of Orange county, to which field notes was attached the certificate of the surveyor to the effect that the survey was made by him on the ground and according to law, and that the boundaries, corners, etc., are truly described in the field notes. This certificate is dated December 23, 1919, and shows that the survey was made December 1 to 23, 1919. In addition to several hundred meander calls these field notes accurately describe the land covered by the application by beginning at the intersection of the west bank of the bayou with Sabine river; thence up the west bank with its meanders to the northwest corner of the Henrie survey, thence across the bayou to its east bank; thence down its east bank with meanders to the intersection with the Sabine river; thence to the beginning.

4. May 5, 1920, the commissioner of the general land office issued to James N. Parker oil and gas permit No. 6814, based upon his application of December 11, 1919, covering 494 acres of land, describing it as above set out, which permit recites that Parker had fully complied with all the provisions of chapter 83, Act approved March 16, 1917, with reference to the matter of obtaining such permit.

5. October 31, 1921, the commissioner issued to the said Parker another permit, which recites that by inadvertence the first permit was partly prepared on blank form of permit used for university lands, and the second permit was issued in lieu of and as a substitute for the first. This second permit recites full compliance with the law, and contains all the requirements of the act of March 16, 1917.

In the first permit granted, in which form for university lands was used, it is provided that before the expiration of 18 months from its date the owner shall in good faith commence actual work necessary to the development, and, if oil is not developed within 18 months, then the owner, within 30 days after the expiration of the 18 months, shall file in the general land office a sworn statement that actual work was begun within the 18 months. The second permit contains a like clause, but the time for commencing actual work is limited to 12 months instead of 18 months.

6. October 4, 1921, Parker filed on the land office a sworn statement, made under date of October 1, 1921, to the effect that within the period of 18 months allowed in the permit of March 5, 1920, he had begun actual work for the development of the land covered by his permit, which statement fully complies with the law in the matter of showing the work done, the expenses incurred, etc., and is supported by the affidavit of two disinterested persons. It also shows that during a part of the time bona fide litigation existed with reference to his right to the possession of the land covered by the permit. There is nothing in the statement to show the exact date when the actual work of development was done.

7. May 8, 1922, Parker filed in the general land office his affidavit under date of April 27, 1922, showing that on April 22, 1922, petroleum oil in commercial quantities had been developed from the area covered by his permit No. 6814. There is attached to this affidavit a log of the well, and it appears to be in compliance with the law in other respects. In connection with said statement he makes application for a mineral, oil, and gas lease covering the land embraced in his permit.

8. On May 17, 1922, the commissioner of the general land office issued to Parker a lease for the purpose of operating for and developing the oil and gas in and under the land covered by the permit; it being described in general terms as above set out. This lease appears to comply with the terms of the law with reference to payment of rentals royalty, etc. Among other things, it recites: "It appearing that the said James N. Parker has complied with all the provisions of the law relating to said permit."

Relator alleges that on January 12, 1924, he filed with the county surveyor of Orange county his application for permit to prospect for and develop oil and gas in the bed or channel of Cow bayou; that in due time he caused an actual survey to be made, and that said application and field notes were properly filed in the general land office April 19, 1924; that he has tendered the sum of money necessary for obtaining a lease, it having already been pointed out to the commissioner that oil in paying quantities had been theretofore produced on said lands; that he has in all respects complied with all the requirements of the law, and has made demand upon the commissioner to grant him a permit and lease, which the commissioner has refused to do.

The basis of relator's request for mandamus is that, due to certain alleged fraud on the part of the county surveyor, which was ratified by Parker, the failure of Parker to comply with certain requirements of the law and certain alleged irregularities in connection with the application, the permit, and lease were ipso facto forfeited, and are null and void, and that by reason of his application he is entitled to a permit and lease for developing said land for oil and gas.

Before setting out the contentions upon which he relies we briefly refer...