York v. Alley

• Decision Date: 23 January 1930
• Docket Number: No. 2371.,2371.
• Citation: 25 S.W.2d 193
• Parties: YORK v. ALLEY et al.
• Court: Texas Court of Appeals

25 S.W.2d 193

YORK v. ALLEY et al.

No. 2371.

Court of Civil Appeals of Texas. El Paso.

January 23, 1930.

Rehearing Denied February 20, 1930.

Appeal from District Court, Ector County; Chas. L. Klapproth, Judge.

Action by R. L. York against William Alley, County Surveyor of Ector County, who impleaded the Board of Regents of the University of Texas and others. From a judgment of dismissal, plaintiff appeals.

Affirmed.

Penix & Penix, of Wichita Falls, for appellant.

David Proctor, H. S. Garrett, and James & Conner, all of Fort Worth, Vinson, Elkins, Sweeton & Weems, and Joel H. Berry, all of Houston, Harris, Harris & Sedberry, of San Angelo, Paul Moss, of Odessa, Robert Lee Bobbitt, Atty. Gen., and R. D. Cox, Asst. Atty. Gen., for appellees.

HIGGINS, J.

This is an action under the second subdivision of article 5323, R. S., instituted by appellant, York, against appellee Alley, county surveyor of Ector county, to compel a survey of four tracts of land alleged to be unsurveyed land belonging to the public free school fund. The land described in the petition is situate in Ector and Crane counties, and in appellant's brief is briefly described as follows:

"First Tract: Lying between University Block 35 on the East and Block B-16 and Block B-22 on the West and Section 6, Block 44, Township 3 S. on the North and University Block 35 on the South.

"Second Tract: Lying between section 17, Block 44, Township 3 S. on the North and University Block 35 on the South.

"Third Tract: Lying between Section 26, Block 44, Township 3 S. on the North and University Block 35 on the South.

"Fourth Tract: Lying between section 32, Block 44, Township 3 S. on the North and University Block 35 on the South."

The petition described the surrounding tracts of land by section and block numbers, and named the owners thereof. It was averred that University block 35 was owned by and in the possession of the Board of Regents of the University of Texas, whose members were named and their residences given.

The surveyor answered and impleaded the various owners and persons in possession of the lands adjacent to the alleged vacancies, except the state of Texas; the Board of Regents being among those so impleaded, as well as various oil companies.

The members of the Board of Regents filed a plea in abatement, setting up that the title to block 35 is in the state of Texas, and that the state was a necessary party to the suit. Like pleas were filed by various oil companies. Upon hearing of these pleas, evidence was heard in support thereof, the pleas sustained, and the suit dismissed.

The petition upon its face discloses that each of the four tracts are bounded upon at least one side by University block 35. The evidence adduced discloses that, according to the records and maps of the general land office, no vacancy appears, and that all of tracts Nos. 2, 3, and 4, and a large part, if not all, of tract No. 1, is a part of said University block, and claimed by the commissioner of the general land office and Board of Regents so to be. It was on account of the fact so shown by the records and maps of the general land office that the commissioner rejected the application of appellant made under the first subdivision of article 5323, R. S.

In order to determine whether the alleged vacancy exists, it is of course necessary to locate the true boundary lines of the surrounding lands, and it appears from the evidence that the boundary issue in the case is as to the location of the west line of the University block and the south lines of certain sections therein. The suit, if successfully maintained, would change said west and south lines of the University block from the position which they are now recognized and claimed to be by the commissioner of the general land office and Board of Regents, and move such lines to the east and south. If these lines be so located, then the land described in the petition is unsurveyed and dedicated to the public free school fund.

But in either event it belongs to the state of Texas whose title is not that of a mere trustee. The state owns the land just as fully as before it was dedicated to public educational purposes. Theisen v. Robison, 117 Tex. 489, 8 S.W.(2d) 646; Smisson v. State, 71 Tex. 222, 9 S. W. 112; Greene v. Robison, 109 Tex. 367, 210 S. W. 498.

We thus have here presented a case where the land in controversy belongs to the state, and is so recognized by all the parties. So this action, if successfully maintained, would not restore to the state any land adversely claimed to be embraced in prior grants made by the state to individuals. In truth the only effect of the judgment sought by appellant would be to impress upon the land the status of unsurveyed land dedicated to the public free school fund, and subject to purchase by him, rather than land surveyed and dedicated to the permanent fund of the University as theretofore recognized and claimed by the authorized agents of the state so to be.

We very much doubt if article 5323, R. S., has any application to such a state of facts. But, for the purpose of this appeal, it will be assumed that the action is authorized by said article, subject, as later held, to the necessity of joining the state as a party.

Persons interested in the object and subject-matter of a suit, and whose rights will be directly affected by the judgment rendered, are necessary parties. Waldrep v. Roquemore, 60 Tex. Civ. App. 138, 127 S. W. 248; Stahlman v. Riordan (Tex. Civ. App.) 227 S. W. 726, 729; ...