Wintermann v. McDonald

• Decision Date: 11 February 1937
• Docket Number: No. 7063.,7063.
• Citation: 102 S.W.2d 167
• Parties: WINTERMANN v. McDONALD, Land Com'r.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

Page 167

102 S.W.2d 167

WINTERMANN v. McDONALD, Land Com'r.^*

No. 7063.

Supreme Court of Texas.

February 11, 1937.

Original petition for a writ of mandamus by David Wintermann, relator, against J. H. Walker, Commissioner of the General Land Office. W. H. McDonald, having succeeded J. H. Walker as Commissioner of the General Land Office, was substituted as respondent on motion.

Petition granted in accordance with opinion.

Rex G. Baker, of Houston, and Powell, Wirtz, Rauhut & Gideon, of Austin, for relator.

William McCraw, Atty. Gen., and H. Grady Chandler and Russell Rentfro, Asst. Attys. Gen., for respondent.

Bramlette & Levy and Richard B. Levy, all of Longview, amici curiæ.

SHARP, Justice.

David Wintermann, relator, filed his petition for writ of mandamus to compel Hon. J. H. Walker, Commissioner of the General Land Office, respondent, to award and patent to him 9.4 acres of land situated in Colorado county with a reservation to the State of only one-sixteenth of the minerals as a free royalty, provided that one-eighth of all sulphur and other mineral substances from which sulphur may be derived or produced be reserved as a free royalty to the State. This right is claimed by virtue of the Act of 1931, chapter 271 of the General Laws of the Regular Session of the 42d Legislature, which is commonly known as House Bill No. 358. Article 5421c, Vernon's Annotated Texas Civil Statutes.

Since this petition for mandamus was filed, Hon. J. H. Walker has been succeeded as Commissioner of the General Land Office by Hon. W. H. McDonald, and motion has been duly made requesting that this court enter its order substituting Hon. W. H. McDonald, the present Commissioner of the General Land Office, as respondent in the place of Hon. J. H. Walker, which request has been granted and the order entered by virtue of article 2269, Vernon's Annotated Texas Civil Statutes.

Relator contends that on or about December 8, 1934, he discovered an unsurveyed area of school land which is not within five miles of a producing oil or gas well, and that he complied with all the requirements of the law, and is entitled to an award and patent therefor; that said land should be sold to him without condition of settlement and with a reservation of one-sixteenth of all minerals, except sulphur, as a free royalty to the State, and one-eighth of all sulphur and other mineral substances from which sulphur may be derived or produced, as a free royalty to the State.

Respondent contends that since January 19, 1934, he has issued many awards and patents to public school lands under the 1931 Act, and in all such awards and patents there has been placed therein a reservation of all minerals to the State. The respondent is willing to issue an award and patent to relator provided he will accept them with such reservation. Relator is unwilling to accept such an award and patent, and has requested the respondent to issue an award and patent only with the reservations and limitations above stated.

The land in controversy is a small tract, and has never been classified by the Land Commissioner. It is school land, by reason of its having been appropriated to the Public Free School Fund by the Act of 1900. Chapter 11 of the General Laws of the 26th Leg., 1st Called Sess., p. 29 et seq., vol. 11 of Gammel's Laws of Texas. It is not within five miles of a producing oil or gas well. It is undisputed that relator has the right of preference to purchase this land and that he has complied with all steps necessary to entitle him to acquire same under the provisions of the 1931 Act. Relator contends that the writ of mandamus should issue under the terms of this act, among others for the following reasons:

"The land involved here is unsurveyed land under the definition contained in section 3 of the Act of 1931 [Vernon's Ann. Civ.St. art. 5421c, § 3]. Relator is given the preference right to purchase the land here involved under that portion of section 5 of said act [Vernon's Ann.Civ.St. art. 5421c, § 5], which reads as follows:

"`Provided, that in all cases where a tract of school land has been occupied by mistake as a part of another tract, such occupant shall have a preference right for a period of six months after the discovery of the mistake, or after the passage of this act, to purchase the land at the same price paid or contracted to be paid for the land actually conveyed to him.'"

This action involves the construction of the Act of 1931. Since this act is quite lengthy, we shall copy only the pertinent parts thereof applicable to the question before us, which are as follows:

"Sec. 1. All lands heretofore set apart to the public free school funds under the Constitution and laws of Texas, and all of the unappropriated and unsold public domain remaining in this State of whatever character, except river beds, and channels, and islands, lakes and bays, and other areas within tide water limits, are subject to control and sale under the provisions of this Act.

"Sec. 2. Surveyed public free school land may be sold by the Commissioner on the first day of any month to the person offering the highest price for it after the same has been advertised for sale in accordance with this Act and the provisions of subdivision 2 of Chapter 3, Title 86, Revised Civil Statutes, 1925, relating to school land, provided that all such land within five miles of a well producing oil or gas in commercial quantities shall be subject to lease only, and the surface rights shall not be sold.

"Sec. 3. Surveyed land within the terms of this Act is defined to be all tracts or parts of tracts heretofore surveyed either on the ground or by protraction, and set apart for the public school funds and which is unsold, and for which field notes are on file in the General Land Office or which may be delineated on the maps of said Office as such, and unsurveyed land is defined to be all areas not included in surveys on file in the General Land Office or surveys delineated on the maps thereof.

"Sec. 4. All land shall be sold without condition of settlement and with a reservation of one-sixteenth (1/16) of all minerals, as a free royalty to the State, which two conditions shall be expressed in the application to purchase and in the notice of award, the minimum price to be fixed by the Commissioner and in no case to be less than One Dollar ($1.00) an acre. Provided, that one-eighth (1/8) of all sulphur and other mineral substances from which sulphur may be derived or produced shall be reserved as a free royalty to the State.

"Sec. 5. Any headright survey, homestead donation, pre-emption survey, scrip survey or other survey heretofore awarded or sold, which survey has been held and claimed in good faith by any party for a period of ten years prior to the date of application for patent and which surveys cannot be patented under existing laws, may be patented on payment of One Dollar ($1.00) an acre to the Land Commissioner. In such cases the patent shall be issued to the owner now of record in the General Land Office and inure distributively to the true and lawful owners of the land, provided that in all cases where a tract of school land has been occupied by mistake as a part of another tract, such occupant shall have a preference right for a period of six months after the discovery of the mistake, or after the passage of this Act, to purchase the land at the same price paid or contracted to be paid for the land actually conveyed to him." Vernon's Ann. Civ.St. art. 5421c, §§ 1-5.

The sole question for decision is whether the respondent should be required to issue an award and patent to relator for the land involved here, providing for a reservation to the State of only one-sixteenth of all minerals as a free royalty to the State, except that one-eighth of all sulphur and other mineral substances from which sulphur may be derived or produced shall be reserved as a free royalty to the State; or whether there should be inserted in the award and patent a reservation to the State of all minerals in, under, and on the land.

The burden is placed on the Legislature to sell the public free school lands "on such terms as may be prescribed by law." Article 7, section 4, of the Constitution. In response to this command, many laws, including this act, have been passed. The extent of the vast public domain of Texas placed a stupendous task upon the Legislature to safeguard the rights of all concerned by the enactment of proper laws. To accomplish this purpose the Legislature has from time to time enacted many land laws. We shall review only a part of them.

Chapter 3, title 86, article 5306 et seq., R.S.1925, is generally known as the General Sales Law. This law furnishes certain fundamental rules for the sale of public lands. As early as 1883 the Legislature made provision to classify public lands and sell the agricultural land to settlers; and the minerals thereunder were "reserved by the State for the use of the fund to which the land now belongs." See Act of April 12, 1883, 9 Gammel's Laws, 394; 31 Tex. Jur. p. 659.

In 1919 the Relinquishment Act was passed. Article 5367 reads: "The State hereby constitutes the owner of the soil its agent for the purposes herein named, and in consideration therefor, relinquishes and vests in the owner of the soil an undivided fifteen-sixteenths of all oil and gas which has been undeveloped and the value of the same that may be upon and within the surveyed and unsurveyed public free school land and asylum lands and portions of such surveys sold with a mineral classification or mineral reservation, subject to the terms of this law. The remaining undivided portion of said oil and gas and its value is hereby reserved for the use of and benefit of the public school fund and the several asylum funds. (Acts 2nd C.S.1919, p. 249; Acts 1st C.S.1921, p. 112.)"

Article 5368 describes the terms upon which the owner may lease said land as the agent of the State.

By the...