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(248 S.W.) from the land the oil and gas and other min-1 wise inoperative, for the reason that it had erals in and under the same, and for ingress not been shown that J. N. Graves joined Rosa and egress in and upon said land for said pur. C. Graves, his wife, in acknowledging the poses.

power of attorney, and hence that her per-
12. I conclude that at the time the appli- mit, if legally issued, remained in force, as
cation for an oil and gas permit was made by against which the commissioner was with-
the defendants O. B. Colquitt and J. N. Graves, out power to grant the permit under which
the three areas described in the said applica-
tion were surveyed lands within the terms of 0. B. Colquitt and J. N. Graves are now
the Mineral Act of 1917, and that the said ap- claiming; that Rosa c. Graves, was the wife
plication was regular and that under it the of J. N. Graves, and that the permit to her
said Colquitt and Graves acquired the right to by the commissioner occurred during the
an oil and gas permit upon the said areas. marriage relation; that hence J. N. Graves

"3. I further conclude that the defendants had a community interest therein, and that'
O. B. Colquitt, J. N. Graves, C. F. Colcord, and 0. B. Colquitt, while not interested on the
the Union Oil Company are the owners of a face of the permit, yet was interested in
valid oil and gas permit and a valid oil and the permit as shown by the testimony, and
gas lease covering the said survey No. 10,
and that under it they have the right to that therefore both J. N. Graves and 0. B.
prospect for, develop, and remove petroleum Colquitt were not thereafter qualified, un-
oil and natural gas from the said land in ac- der section 19 of the act of the Legislature
cordance with the terms of the said permit and hereinafter referred to, to accept and hold
the said lease, paying the royalties as provided the later permit issued to them by the com-
in the lease.

missioner of the land office, under which they
“4. I further conclude that plaintiff, H. C. are claiming in this suit; that the permit
Bynum, has no interest in the oil and gas under which the defendants claimed com-
in and under the said land except it be to the bined the school land in controversy with
one-sixteenth royalty interest in the same pro-
vided for in the lease referred to in the fore- the river bed land, which was not public
going findings.

school land under the laws of 1917, and that, “5. I further conclude that judgment should under the law, the funds arising from the be rendered in favor of the defendants Col- different classes of land are not returnable quitt, Graves, Colcord, and the Union Oil Com- to nor subject to appropriation by the state pany, sustaining their rights under the afore- for the same purposes; that neither river bed said permit and lease, and sustaining the valid- lands nor the school lands had been developed ity of the aforesaid permit and lease. within the 18 months from the date of the "H. F. Weldon, Judge."

permit, as required by the act under which

the permit was issued; that the defendants
It would perhaps be a sufficient disposi- and those holding under them had failed to
tion of this case to simply adopt the trial pay the 10 cents per acre to the surface own-
court's findings of fact and conclusions of er, H. C. Bynum, as required by the law;
law and thereon affirm the judgment. We that the permit under which the defendants
will, however, venture to add that we are the claim covered a divided area, in that the
more inclined to adopt those conclusions for middle section of the river bed had thereto-
the reason, as we shall hereinafter more fore been relinquished by 0, B. Colquitt, who
fully develop, that we gravely doubt that thereafter, as well as all those interested
appellant can attack in this collateral action with him, was disqualified to again become
the proceedings of the commissioner of the a permit holder.
general land office. It is true that, if the Appellant also urges that the court's find-
permit and lease issued by the commissioner ing that the school land claimed by the plain:
of the general land office was void, in the tiff had been duly and legally classified as
strict sense of that term, then their nullity mineral and grazing land by the commission-
could be invoked and made available in be- er of the general land office is unsupported,
half of appellant in this action, but we are not in that the evidence does not show atfirma-
inclined to view the proceedings complained tively that the land had been so classified by
of as authorizing the conclusion that the per- the duly constituted authorities of Texas,
mit and lease are absolutely void, but rather under the mineral laws existing at the time
as, at most, irregularities that are not sub- of the classification. Other objections to the
ject to attack in this collateral action. court's findings to the validity of the permit

Briefly stated, and in so far as material and lease under which appellees claim are
to our conclusion, appellant's attack upon not thought to be material to the conclusion
the proceedings may be thus summarized: we have reached.
That the relinquishment of Rosa C. Graves The legislative acts that have entered
was not effective, notwithstanding its ac- into our consideration are those approved
ceptance by the commissioner of the general April 9, 1913 (see Gen. Laws 3d Leg. p.
land office, for the reason that she at the 409), and act approved March 16, 1917 (see
time was the wife of J. N. Graves, and he Gen. Laws 35th Leg. p. 159 [Vernon's
did not join in its acknowledgment, and also Ann. Civ. St. Supp. 1918, arts. 5901-5904w])
in that the relinquishment in her name by O. and act approved July 31, 1919 (see Gen.
B. Colquitt as her attorney in fact was like-Laws 36th Leg. 20 Called Sess. p. 249 (Ver-

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non's Ann. Civ. St. Supp. 1922, arts. 5904016 In other words, the commissioner of the 5904034]). As appears from the court's find general land office is made the state's agent ings of fact, appellant's title rests upon the for the disposition of the public free school purchase made by him on May 2, 1918, dur- lands and for the issuance of the permits to ing the operation of the act of 1917; that develop unsurveyed lands and school lands his purchase, as shown by his application in which the mineral rights had been reand by his award, was of the surface, the served to the state, and while as such agent minerals in the land in controversy therein he must, of course, be confined to the powers, being expressly reserved to the state. Ap- expressly or by necessary implication, given pellant's only claim, therefore, to the miner- to him, nevertheless, we think the consideraals in the land as now presented is under tion of the several acts relating to the subthe act of the Thirty-Sixth Legislature, which ject will show that he is given no little disrelinquished to purchasers of the state school cretion. As already seen, he may make rules lands fifteen-sixteenths of the oil and gas and regulations; he is given power to forfeit thereunder, As shown by the preamble to permits already issued for nonperformance the act of 1919, the law was passed to pro- of the conditions of the permit on the part mote the development of the oil and gas re- of the permittee, but the act of 1917 (Thirtysources of the state and the relinquishment Fifth Legislature) nowhere declares that a was made in consideration for the services a failure of a permit holder to make the payof the donees in so promoting the develop- ments required by the act, or to develop the ment of the land. The appellant's situation, lands within the period specified, shall ipso therefore, with reference to his title is that facto nullify the permit. In 32 Cyc. p. 969. of a mere donee who thus far without dis- it is said: pute has rendered no service to the state.

"No one but the United States can take He is in the further attitude of complaining advantage of a breach of a condition subseof proceedings of which the state herself bas quent in a federal railroad grant or question not complained. Moreover, the donation, as the title based upon the grant because of such

breach"-citing

from we may perhaps not inaptly term it, was ac

Idaho, Iowa, companied with a very important qualifica- United States.

Louisiana, Missouri, Montana, Washington, and tion, to wit, that purchasers of public free school lands in the attitude of appellant were In the case of Quinby v. Conlan, 104 U. S. excluded from the benefits of the act in cases 420, 26 L. Ed. 800, by the Supreme Court of where, at the time of their purchase, there the United States, it was said, quoting from was outstanding in others "valid permits to the headnote, that: prospect for oil and gas" theretofore issued.

"The courts cannot exercise any direct apSee section 10, Acts 36th Legislature, supra, pellate jurisdiction over the rulings of officers and section 19 of the same act also provides of the Land Department, nor can they reverse that

or correct them in a collateral proceeding be

tween private parties." “All the terms, conditions, limitations and obligations provided in the law under which

In Heil v. Martin, 70 S. W. 430, it was held permits included herein have been or may be by the Court of Civil Appeals at San Anissued and rights secured therein shall con- tonio, writ of error refused, quoting from the tinue and remain in full force and effect ex- headnote, that: cept as changed or modified by this act.”

"The action of the commissioner of the gen.

eral land office in issuing a patent to an acHence, it was and is vital to appellant to tual settler on state land, sét apart for cerdestroy the outstanding permit and lease of tain educational and charitable institutions unappellees. As before stated, the state is not der Laws 1887, c. 99, conferring on such ofa party to this suit. The state, neither by ficer full charge of such state land, is not the commissioner of the general land office, open to collateral attack." nor by any other authorized officer, is com

In Heman v. Schulte, 166 Mo. 409,.66 S. W. plaining herein. The only complaints are

163, it was said by the Supreme Court of those of the appellant, as hereinbefore men: Missouri, quoting from the headnote, that: tioned. Under the act of the Thirty-Fifth Legislature, under which the permit and

"The acts of a municipal body under a power lease of the appellees was issued, it was vested in it are conclusive on the courts, unexpressly provided in section 26 of the act less they are so unreasonable, oppressive, and that:

subversive of the rights of the citizen, in the

general purpose declared, as to clearly indi"The commissioner of the general land office cate an attempted abuse, rather than a legitishall have the general supervision of all mat- mate use, of the power." ters necessary for the proper administration of this act, and he is authorized to adopt rules

In Decourt v. Sproul, 66 Tex. 368, 1 S. and regulations and to alter or amend them W. 337, it was held that, while the state from time to time as he may deem necessary might institute a suit to set aside a patent for the protection of the interest involved and obtained by fraud, such patent could not be not inconsistent with the provisions herein.” | collaterally avoided. In Carter v. Clifton,

(248 S.W.) 44 Tex. Civ. App. 132, 98 S. W. 209, it was thereunder to prosecute development as reheld that a patent to land as a homesteadquired by the act and as having apparently donation could not be collaterally attacked acquiesced in the present claim of her husby defendant, in an action of trespass to try band and 0. B. Colquitt. At this point we title by the patentee. In United States v. wish to quote parts of the act of the ThirtyKing, 9 Mont. 75, 22 Pac. 498, it was held Fifth Legislature, supra. Among its general that the certificate of the surveyor general provisions in the latter part of section 16, p. that $500 in labor or improvements as re- 164, it is declared: quired by the statutes there under considera

“An owner may relinquish a permit or lease tion had been expended on the land, was con- at any time by having the deed or relinquishclusive of that fact. The author of 27 Cyc. ment acknowledged, recorded by the proper p. 626, par. 3, states, upon the authority of county clerk and filed in the general land of. certain Canada cases cited in a note notifice accompanied by one dollar filing fee. The available to us, that:

commissioner of the general land office shall

mail notice to the proper county clerk of the "The issuance of a mining lease cures any ir- filing of the relinquishment and when said noregularities in the application for a license tice has had time through due course of mail or in the license itself, in the absence of fraud to reach said clerk the area shall be subject to on the part of the licensee."

applications as in the first instance." [1, 2] In the light of the authorities so

Section 19 of the same act thus reads: briefly noticed, can it be said that in this ac

"If a permit or lease should be isgued upon tion appellant has successfully discharged the burden of proof that must, at least, be untrue in material matters, or should the own

a statement by the applicant which is false or said to rest upon him to show that the per- er of a permit fail or refuse to begin in good mit and lease under the appellees' claim are faith the work necessary to the development of void, and that hence, as donee, under the act the area within the time required, or should of the Thirty-Sixth Legislature, he is en- the owner of a permit fail or refuse to protitled to the minerals relinquished to pur- ceed in good faith and with reasonable dilichasers of public free school lands? We gence in a bona fide effort to develop an area think not. In the absence of evidence show- included in his permit after having begun the ing affirmatively otherwise, we think it must development, or should the owner of a perbe presumed that the several relinquishments the prescribed time, or should the owner of

mit fail or refuse to apply for a lease within of permits detailed in the record were ac

a lease fail or refuse to proceed in good faith cepted and acted upon by the commissioner and with reasonable diligence and in a bona under circumstances not in violation of his fide effort to develop, operate and put out the rules and regulations, or in opposition to any mineral or other substance at any time durpositive law. There is no affirmative evi- ing the life of the lease, or should the owner dence offered to show that the interest evi- of a lease fail or refuse to make proper redenced by the permit to Rosa C. Graves was mittances in payment of royalty or other payother than a separate interest to her. Ap. ments or fail or refuse to make the proper pellant relies upon the mere presumption statement, or fail to furnish the required evithat, inasmuch as that permit was issued to dence of the output and market value and maher during her marriage with J. N. Graves, or fail to make the annual payment on the

terial matters relating hereto when requested, it was community property, yet it was not area when requested so to do the permit or necessarily so.

Under our laws a married lease, as the case may be, shall be subject woman may purchase and acquire property to forfeiture, and when the commissioner is and secure the same in her own right, and sufficiently informed of the facts which subthere is nothing in the act rendering impos- ject the permit or lease to forfeiture he may. sible of performance the required conditions declare same forfeited by proper entry upon by a married woman. So, too, with reference the duplicate permit or lease kept in the gen

eral land office. to the acceptance by the commissioner of the

When forfeiture has been derelinquishment of Rosa C. Graves and of the the proper county clerk and the area shall be

clared a notice of that fact shall be mailed to several relinquishments of the other appel- subject to the application of another than the lees, there is no affirmative evidence to the forfeiting owner when the notice has had time contrary showing that the husband of Rosa to reach the county Clerk through due course C. Graves did not join her in her relinquish of mail; provided, the commissioner may exment, or join her in the acknowledgment of ercise large discretion in the matter of rethe power of attorney under which 0. B. quiring one to develop gas wells, and provided Colquitt acted. But if it be admitted that further, that all forfeitures may, within the the relinquishment of Rosa C. Graves did not discretion of the commissioner be set aside take effect, we yet fail to see how appellant and all rights reinstated before the rights of can take advantage of that fact. She is not

another intervene." complaining nor is the state complaining. On [3] It will be noted that it is only in cases the contrary, it is a fair inference that Rosa where an applicant has violated the requireC. Graves surrendered whatever interest she ments of section 19 that an application for a may have acquired by the permit to her, in permit must be from a person other than the that it appears thať she never proceeded forfeiting owner. The language, as will be

noted from the above quotation from section, "The commissioner may exercise large dis16, makes no such requirement in cases cretion in the matter of requiring one to dewhere there is a mere relinquishment of a velop gas well, and provided further, that all permit. It is true that, in the case of Fox forfeitures may, within the discretion of the v. Robison, 111 Tex. 73, 229 S. W. 456, our commissioner be set aside and all rights reinSupreme Court held that under the act of stated before the rights of another intervene.' 1913 a surrendering permittee could not im We will not extend this opinion, already mediately thereafter take out another per- too long perhaps, by a discussion of other mit, although under that act there was no questions presented, further than to add express prohibition to that effect. That act, that the evidence fully supports the trial however, provides for development with stato court's findings that all sums of money reed periods, and it was held that to authorize quired of appellees under the terms of the a surrendering permit holder to immediate- law and under their permit and lease have ly take out thereafter another permit was to been paid, and that the evidence sufficiently indirectly enable him to violate and avoid shows that section 10—the land claimed by the time requirements relating to develop- appellant and in controversy—was duly ap- . ment. But that case, we think, is distin- praised as grazing and mineral land. guishable from the case before us, in that We conclude that the trial court's findings there the surrendering permit holder made of fact and conclusions of law should be his application within a few minutes after ac- adopted, and the judgment affirmed ceptance of a relinquishment of an earlier permit. In 'the case before us, however, the relinquishment of Rosa C. Graves was on October 11, 1918, and the permit to appellees Graves and Colquitt was not issued until DRAKE et al. v. YAWN et al. (No. 921.)* December 2, 1918. During the interim-two months lacking a few days—the land was (Court of Civil Appeals of Texas. Beaumont. subject, in so far as the record shows, to Jan. 19, 1923. Rehearing Denied application by any person, including appel

Feb. 21, 1923.) lant. There is an entire absence of evidence 1. Schools and school districts m33, 40-At. indicating that the former relinquishment tempted consolidation of county line school was for the purpose of avoiding the time re districts by local board without sanction of quirements of development or for avoiding county court held invalid. any other requirement of the act, and it is Where local trustees of two school dis. evident, from a consideration of the act as a tricts lying in different counties agreed to conwhole, that the laws authorizing permits solidate the two districts, and the agreement to prospect for oil and gas was the principal trustees and approved by the county superin

was reduced to writing and signed by such consideration of their passage, and we feel tendents of both counties, but no action was unable to say, as a matter of law, that the taken by the commissioners' court as required mere fact that at one time J. N. Graves or by Acts 1911, c. 100, § 1 (Vernon's Sayles' 0. B. Colquitt, or both of them, had an in- | Apn. Civ. St. 1914, art. 2815a), superseding terest in the original permit issued to Rosa Acts 1905, c. 124, $ 55, then in force, the at

tempted consolidation was beyond the powers C. Graves precludes them from holding the of such officials and was utterly invalid. permit under which they now claim, particularly in view of the fact that the interest 2. Schools and school districts w40_Attempt.

ed ratification by school officials of void con. of Graves rests upon the presumption and

solidation of county line school districts held that of Colquitt upon his testimony which

of no effect. wholly fails to define the character of in

An attempted consolidation of two school terest he had therein.

districts lying in different counties, invalid be[4] Stress is also laid upon the fact that cause not created by commissioners' court as development of the river bed section and up- provided by Acts 1911, c. 100, $ 1 (Vernon's on the school land in question did not take Sayles' Ann. Civ. St. 1914, art. 2815a), could place within the time limit of the act. It not be ratified by the county superintendents may be that for this reason appellees' per- and local school trustees and all the school mits were subject to forfeiture and that the oflicials of the two counties. commissioner might have so declared, but he 3. Estoppel Om62(4) - No estoppel against did not do so and we think it must be pre

questioning void consolidation of school dis.

tricts. sumed that, in the absence of any intervening right and the interest of the general purpose

Where attempt to consolidate two school of the Legislature, he waived such failures districts was invalid and null, the fact that the in development as were shown, for reasons ber of years acquiesced in the consolidation,

school officials of both districts had for a numdeemed by him sufficient at the time. This and one of the districts, having hired an addiis particularly true, we think, in view of the tional teacher, built an addition to the school concluding language of section 19, of the act building and incurred other expenses on the of 1917, above quoted, wherein it is said: faith of the consolidation, does not estop the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and lodexes

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(248 S.W.) officials of the other district from denying the tion of school districts by the agreement of validity of the consolidation; an estoppel can- local district trustees. pot be based on the act to which the incapacity relates.

Appeal from District Court, Tyler Coun4. Schools and school districts w22-Attempt.ty; D. F. Singleton, Judge. ed consolidation of school districts held not Suit by John Yawn and others ag within statute validating attempted consolida- Rod Drake and others. From a judgment tions.

and injunction in favor of plaintiffs, deAn attempted consolidation of two county fendants appeal. “Reversed, and injunction line school districts, invalid because not created

dissolved. by a commissioners' court under Acts 1911, c. 100, $ 1 (Vernon's Sayles' Ann. Civ. St. Coe & Combs, of Kountze, for appellants. 1914, art. 2815a), superseding Acts 1905, c. Coleman & Lowe, of Woodville, for ap124, $ 55, was not validated by Vernon's Ann. pellees. Civ. St. Supp. 1918, art. 2749a, validating districts "attempted to be established by the

O'QUINN, J. This is an appeal from a proper officers of any county and heretofore recognized by such county authorities as such judgment of the district court of Tyler school district," there being no attempt to county. Tex., adjudging that common school establish or recognize such districts by the district No. 2 of Hardin county and com commissioners' courts.

mon school district No. 40 of Tyler county

be and compose consolidated common school On Motion for Rehearing.

county line district No. 40 of Tyler and Har5. Appeal and error 392–Objection to ju- din counties, and that the management and risdiction of Court of Civil Appeals for in control of the school in said district be sufficiency of appeal bond held too late on vested in the board of county school trusmotion for rehearing.

tees of said Tyler county, and said judgAn objection to the jurisdiction of the Court ment permanently restrained the trustees of Civil Appeals on the ground that the appeal of said common school district No. 2 of bond was defective, no objection having been Hardin county and the board of county made until motion for rebearing, is too late, school trustees of said Hardin county, and even though well taken, if made on motion to the county superintendent of said Hardin dismiss the appeal.

county, from in any manner interfering with 6. Appeal and error 509—Jurisdiction of said consolidated common school county

Court of Civil Appeals depends on notice of line district No. 40, and commanded the appeal being given, not on the record of such county depository of said Hardin county fact,

and its officials to transfer the funds comWhere all of the defendants gave notice ing into its possession belonging to the terof appeal but transcript did not name all of them, the judgment of the Court of Civil Ap- ritory designated as common school district peals in reversing lower court applies to all No. 2 of Hardin county to the proper de the defendants, because the jurisdiction depends pository and officials of said Tyler county on the notice of appeal being actually given, for the benefit of said consolidated comand not on the record of such fact.

mon school county line district No. 40, and

that no school be maintained in any part 7. Appeal and error 1180(3)-Judgment on

of said district and no funds expended exappeal held to affect parties not appealing cept on order of said county school trustees where single question involved.

of said Tyler county. .
Where the question in litigation was the
validity of a consolidated school line district,

The record discloses that in the year 1915, it being a single question, the judgment of the tho local trustees of common school disCourt of Civil Appeals reversing the judgment trict No. 2 of Hardin county and the local of the lower court affected all defendants not trustees of common school district No. 40 appealing as well as defendants appealing; the of Tyler county, the said districts adjoining, interest of parties defendant not being severa- mutually agreed in writing that the two

districts should be consolidated for school 8. Statutes w211_Headline to a statute in purposes, and that the school therein should the revision is no part thereof.

be conducted in the Tyler county school A headline to a statute in the revision of building in district No. 40, and the managestatutes is no part of the statute.

ment of the school to be in the hands of

the authorities of Tyler county; that an 9. Schools and school districts ww33—Statute additional room should be built to said held not to authorize consolidation of school districts by local boards of school trustees.

schoolhouse, another teacher employed, and Vernon's Sayles' Ann. Civ. St. 1914, art.

a transfer wagon bought and operated for 2762, held to provide only for transfer of the the purpose of transferring the children in school funds and school children from one dis- the territory of district No. 2 of Hardin trict to another "upon such terms as may be county to and from school. The room was agreed upon by the trustees of the districts in built to the schoolhouse, an additional teachterested," and not to authorize the consolida was employed, and a transfer wagon

emFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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