Williams v. Reed

• Decision Date: 04 March 1942
• Docket Number: No. 11121.,11121.
• Citation: 160 S.W.2d 316
• Parties: WILLIAMS v. REED et al.
• Court: Texas Court of Appeals

Page 316

160 S.W.2d 316

WILLIAMS v. REED et al.

No. 11121.

Court of Civil Appeals of Texas. San Antonio.

March 4, 1942.

Appeal from District Court, Jim Wells County; L. Broeter, Judge.

Action in trespass to try title by C. F. Williams, trustee, against D. C. Reed and others, wherein defendants filed a demurrer. From a judgment dismissing the petition, plaintiff appeals.

Affirmed.

Guy R. Holcomb, of Austin, for appellant.

L. W. Graves, Jr., and Taliaferro, Graves & Hutcheson, all of Houston, and Perkins & Floyd, of Alice, for appellees.

SMITH, Chief Justice.

The appeal is from an order dismissing appellant's suit following his refusal to amend his petition, which had been stricken on demurrer. Appellant had sued as assignee of R. G. Mallory, but for convenience he will be referred to herein as the original owner of the rights asserted.

The suit was primarily an action in trespass to try title, but after setting out the conventional allegations prescribed by statute for such action appellant went further and specially pleaded his title by attempting to allege that he was entitled to an oil and gas lease from the State upon the land described; that said land was vacant unsurveyed public school land belonging to the State; that he had made application to the Commissioner of the General Land Office for such lease in the manner prescribed by existing statute, but the Commissioner had rejected the application upon the stated ground endorsed on the rejected application, that the land sought to be leased was not vacant public school land.

Appellant did not attempt to implead the State, which he asserted was the owner of the land, or the Land Commissioner, who alone had the authority to make the lease applied for, and had rejected the application therefor. Appellant appears to have impleaded only D. C. Reed and associates, whose relation to the controversy was not disclosed in the petition, but inferentially in possession of the surface of the land, and Texas Gulf Producing Company, inferentially holding an oil and gas lease from Reed and associates.

It appears from appellant's petition that he applied for the lease under the provisions of Art. 5421c, § 8, as amended by the Acts 1933, Vernon's Ann.Civ.St. art. 5421c, § 8, from which we quote the pertinent part:

"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."

Apparently the trial judge sustained the demurrer to appellant's petition on the theory that the cause of action there asserted was barred by these provisions of the Act of 1939, Art. 5421c, Vernon's Civ. Stats.:

"Sec. 6. * * *

"(i) Any application made under prior laws to purchase or lease unsurveyed school land which is on file in the office of the Commissioner or with any county surveyor and which has not been granted upon the effective date of this Act, shall become null, void, and of no further effect unless there is then pending a suit, or suits, involving the question of whether the land so affected or a part thereof is vacant, or unless the Commissioner shall within nine (9) months after the effective date hereof grant said application, or unless the applicant shall within sixty (60) days after the end of such nine-months period, file an action in the District Court, for the purpose of litigating the question of the existence of a vacant unsurveyed area."

That Act became effective June 22, 1939. Appellant instituted this suit on April 19, 1941, nearly two years after the effective date of the Act. Appellant's application to lease the land and the rejection thereof by the Land Commissioner occurred in 1938, and appellant took no further steps towards securing the lease, or his rights thereunder, if any, until he filed this suit. Clearly...