(248 S.W.) from the land the oil and gas and other min- | 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 power of attorney, and hence that her permit, if legally issued, remained in force, as against which the commissioner was with poses. 2. I conclude that at the time the application for an oil and gas permit was made by the defendants O. B. Colquitt and J. N. Graves, the three areas described in the said applica-out power to grant the permit under which tion were surveyed lands within the terms of the Mineral Act of 1917, and that the said application was regular and that under it the said Colquitt and Graves acquired the right to an oil and gas permit upon the said areas. "3. I further conclude that the defendants O. B. Colquitt, J. N. Graves, C. F. Colcord, and the Union Oil Company are the owners of a valid oil and gas permit and a valid oil and gas lease covering the said survey No. 10, and that under it they have the right to prospect for, develop, and remove petroleum oil and natural gas from the said land in accordance with the terms of the said permit and the said lease, paying the royalties as provided in the lease. 4. I further conclude that plaintiff, H. C. Bynum, has no interest in the oil and gas in and under the said land except it be to the one-sixteenth royalty interest in the same provided for in the lease referred to in the foregoing findings. "5. I further conclude that judgment should be rendered in favor of the defendants Colquitt, Graves, Colcord, and the Union Oil Company, sustaining their rights under the aforesaid permit and lease, and sustaining the validity of the aforesaid permit and lease. "H. F. Weldon, Judge." O. B. Colquitt and J. N. Graves are now claiming; that Rosa C. Graves, was the wife of J. N. Graves, and that the permit to her by the commissioner occurred during the marriage relation; that hence J. N. Graves had a community interest therein, and that O. B. Colquitt, while not interested on the face of the permit, yet was interested in the permit as shown by the testimony, and that therefore both J. N. Graves and O. B. Colquitt were not thereafter qualified, under section 19 of the act of the Legislature hereinafter referred to, to accept and hold the later permit issued to them by the commissioner of the land office, under which they are claiming in this suit; that the permit under which the defendants claimed combined the school land in controversy with the river bed land, which was not public school land under the laws of 1917, and that, under the law, the funds arising from the different classes of land are not returnable to nor subject to appropriation by the state for the same purposes; that neither river bed lands nor the school lands had been developed within the 18 months from the date of the permit, as required by the act under which the permit was issued; that the defendants pay the 10 cents per acre to the surface owner, H. C. Bynum, as required by the law; that the permit under which the defendants claim covered a divided area, in that the middle section of the river bed had theretofore been relinquished by O. B. Colquitt, who thereafter, as well as all those interested with him, was disqualified to again become a permit holder. It would perhaps be a sufficient disposi-and those holding under them had failed to tion of this case to simply adopt the trial court's findings of fact and conclusions of law and thereon affirm the judgment. We will, however, venture to add that we are the more inclined to adopt those conclusions for the reason, as we shall hereinafter more fully develop, that we gravely doubt that appellant can attack in this collateral action the proceedings of the commissioner of the general land office. It is true that, if the permit and lease issued by the commissioner of the general land office was void, in the strict sense of that term, then their nullity could be invoked and made available in beer of the general land office is unsupported, half of appellant in this action, but we are not inclined to view the proceedings complained of as authorizing the conclusion that the permit and lease are absolutely void, but rather as, at most, irregularities that are not subject to attack in this collateral action. Appellant also urges that the court's finding that the school land claimed by the plaintiff had been duly and legally classified as mineral and grazing land by the commission in that the evidence does not show affirmatively that the land had been so classified by the duly constituted authorities of Texas, under the mineral laws existing at the time of the classification. Other objections to the court's findings to the validity of the permit and lease under which appellees claim are not thought to be material to the conclusion we have reached. Briefly stated, and in so far as material to our conclusion, appellant's attack upon the proceedings may be thus summarized: 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 33d 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. 5904-5904w]) 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. 2d Called Sess. p. 249 [Ver 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 developments 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. He is in the further attitude of complaining of proceedings of which the state herself has not complained. Moreover, the donation, as we may perhaps not inaptly term it, was accompanied with a very important qualification, to wit, that purchasers of public free school lands in the attitude of appellant were excluded from the benefits of the act in cases where, at the time of their purchase, there was outstanding in others "valid permits to prospect for oil and gas" theretofore issued. See section 10, Acts 36th Legislature, supra, and section 19 of the same act also provides that "All the terms, conditions, limitations and obligations provided in the law under which permits included herein have been or may be issued and rights secured therein shall continue and remain in full force and effect except as changed or modified by this act." Hence, it was and is vital to appellant to destroy the outstanding permit and lease of appellees. As before stated, the state is not a party to this suit. The state, neither by the commissioner of the general land office, nor by any other authorized officer, is complaining herein. The only complaints are those of the appellant, as hereinbefore mentioned. Under the act of the Thirty-Fifth Legislature, under which the permit and lease of the appellees was issued, it was expressly provided in section 26 of the act that: "The commissioner of the general land office shall have the general supervision of all matters necessary for the proper administration of this act, and he is authorized to adopt rules and regulations and to alter or amend them from time to time as he may deem necessary for the protection of the interest involved and not inconsistent with the provisions herein." "No one but the United States can take advantage of a breach of a condition subsequent in a federal railroad grant or question the title based upon the grant because of such breach"-citing cases from Idaho, Iowa, Louisiana, Missouri, Montana, Washington, and United States. In the case of Quinby v. Conlan, 104 U. S. 420, 26 L. Ed. 800, by the Supreme Court of the United States, it was said, quoting from the headnote, that: "The courts cannot exercise any direct appellate jurisdiction over the rulings of officers of the Land Department, nor can they reverse or correct them in a collateral proceeding between private parties." In Heil v. Martin, 70 S. W. 430, it was held by the Court of Civil Appeals at San Antonio, writ of error refused, quoting from the headnote, that: "The action of the commissioner of the general land office in issuing a patent to an actual settler on state land, set apart for certain educational and charitable institutions under Laws 1887, c. 99, conferring on such officer full charge of such state land, is not open to collateral attack." In Heman v. Schulte, 166 Mo. 409, 66 S. W. 163, it was said by the Supreme Court of Missouri, quoting from the headnote, that: "The acts of a municipal body under a power vested in it are conclusive on the courts, unless they are so unreasonable, oppressive, and subversive of the rights of the citizen, in the general purpose declared, as to clearly indicate an attempted abuse, rather than a legitimate use, of the power." In Decourt v. Sproul, 66 Tex. 368, 1 S. W. 337, it was held that, while the state might institute a suit to set aside a patent obtained by fraud, such patent could not be collaterally avoided. In Carter v. Clifton, Tex.) (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 homestead quired 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 O. 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 consideration had been expended on the land, was conclusive of that fact. The author of 27 Cyc. p. 626, par. 3, states, upon the authority of certain Canada cases cited in a note not available to us, that: "The issuance of a mining lease cures any irregularities in the application for a license or in the license itself, in the absence of fraud on the part of the licensee." "An owner may relinquish a permit or lease at any time by having the deed or relinquishment acknowledged, recorded by the proper county clerk and filed in the general land office accompanied by one dollar filing fee. The commissioner of the general land office shall mail notice to the proper county clerk of the filing of the relinquishment and when said notice has had time through due course of mail to reach said clerk the area shall be subject to applications as in the first instance." Section 19 of the same act thus reads: [1, 2] In the light of the authorities so briefly noticed, can it be said that in this ac"If a permit or lease should be issued upon tion appellant has successfully discharged a statement by the applicant which is false or the burden of proof that must, at least, be untrue in material matters, or should the ownsaid 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 permit fail or refuse to apply for a lease within be presumed that the several relinquishments the prescribed time, or should the owner of 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 material matters relating hereto when requested, her during her marriage with J. N. Graves, or fail to make the annual payment on the 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 impossible of performance the required conditions So, too, with reference by a married woman. to the acceptance by the commissioner of the relinquishment of Rosa C. Graves and of the several relinquishments of the other appellees, there is no affirmative evidence to the contrary showing that the husband of Rosa C. Graves did not join her in her relinquish ment, or join her in the acknowledgment of the power of attorney under which O. B. Colquitt acted. But if it be admitted that the relinquishment of Rosa C. Graves did not take effect, we yet fail to see how appellant can take advantage of that fact. She is not complaining nor is the state complaining. On the contrary, it is a fair inference that Rosa C. Graves surrendered whatever interest she may have acquired by the permit to her, in that it appears that she never proceeded | forfeiting owner. ject the permit or lease to forfeiture he may. declare same forfeited by proper entry upon the duplicate permit or lease kept in the general land office. When forfeiture has been declared a notice of that fact shall be mailed to the proper county clerk and the area shall be subject to the application of another than the forfeiting owner when the notice has had time to reach the county clerk through due course of mail; provided, the commissioner may exercise large discretion in the matter of requiring one to develop gas wells, and provided further, that all forfeitures may, within the discretion of the commissioner be set aside and all rights reinstated before the rights of another intervene." [3] It will be noted that it is only in cases where an applicant has violated the requirements of section 19 that an application for a permit must be from a person other than the 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 stat- 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 December 2, 1918. During the interim-two months lacking a few days-the land was subject, in so far as the record shows, to application by any person, including appellant. There is an entire absence of evidence indicating that the former relinquishment was for the purpose of avoiding the time requirements of development or for avoiding any other requirement of the act, and it is evident, from a consideration of the act as a whole, that the laws authorizing permits to prospect for oil and gas was the principal consideration of their passage, and we feel unable to say, as a matter of law, that the mere fact that at one time J. N. Graves or O. B. Colquitt, or both of them, had an interest in the original permit issued to Rosa C. Graves precludes them from holding the permit under which they now claim, particularly in view of the fact that the interest of Graves rests upon the presumption and that of Colquitt upon his testimony which wholly fails to define the character of interest he had therein. [4] Stress is also laid upon the fact that development of the river bed section and upon the school land in question did not take place within the time limit of the act. It may be that for this reason appellees' permits were subject to forfeiture and that the commissioner might have so declared, but he did not do so and we think it must be presumed that, in the absence of any intervening right and the interest of the general purpose of the Legislature, he waived such failures in development as were shown, for reasons deemed by him sufficient at the time. This is particularly true, we think, in view of the concluding language of section 19, of the act of 1917, above quoted, wherein it is said: DRAKE et al. v. YAWN et al. (No. 921.)* (Court of Civil Appeals of Texas. Beaumont. 1. Schools and school districts 33, 40-At- Where local trustees of two school districts lying in different counties agreed to consolidate the two districts, and the agreement trustees and approved by the county superinwas reduced to writing and signed by such tendents of both counties, but no action was taken by the commissioners' court as required by Acts 1911, c. 100, § 1 (Vernon's Sayles' Ann. Civ. St. 1914, art. 2815a), superseding Acts 1905, c. 124, § 55, then in force, the atof such officials and was utterly invalid. tempted consolidation was beyond the powers 2. Schools and school districts 40-Attempted ratification by school officials of void consolidation of county line school districts held of no effect. An attempted consolidation of two school districts lying in different counties, invalid because not created by commissioners' court as provided by Acts 1911, c. 100, § 1 (Vernon's Sayles' Ann. Civ. St. 1914, art. 2815a), could not be ratified by the county superintendents and local school trustees and all the school officials of the two counties. 3. Estoppel 62 (4) No estoppel against questioning void consolidation of school districts. Where attempt to consolidate two school districts was invalid and null, the fact that the school officials of both districts had for a numand one of the districts, having hired an addiber of years acquiesced in the consolidation, tional teacher, built an addition to the school building and incurred other expenses on the faith of the consolidation, does not estop the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes officials of the other district from denying the validity of the consolidation; an estoppel cannot be based on the act to which the incapacity relates. 4. Schools and school districts tion of school districts by the agreement of local district trustees. Appeal from District Court, Tyler Coun 22-Attempt- ty; D. F. Singleton, Judge. ed consolidation of school districts held not within statute validating attempted consolidations. An attempted consolidation of two county line school districts, invalid because not created by a commissioners' court under Acts 1911, c. 100, § 1 (Vernon's Sayles' Ann. Civ. St. 1914, art. 2815a), superseding Acts 1905, c. 124, § 55, was not validated by Vernon's Ann. Civ. St. Supp. 1918, art. 2749a, validating districts "attempted to be established by the proper officers of any county and heretofore recognized by such county authorities as such school district," there being no attempt to establish or recognize such districts by the commissioners' courts. On Motion for Rehearing. 5. Appeal and error 392-Objection to jurisdiction of Court of Civil Appeals for insufficiency of appeal bond held too late on motion for rehearing. An objection to the jurisdiction of the Court of Civil Appeals on the ground that the appeal bond was defective, no objection having been made until motion for rehearing, is too late, even though well taken, if made on motion to dismiss the appeal. 6. Appeal and error 509-Jurisdiction of Court of Civil Appeals depends on notice of appeal being given, not on the record of such fact. Where all of the defendants gave notice of appeal but transcript did not name all of them, the judgment of the Court of Civil Appeals in reversing lower court applies to all the defendants, because the jurisdiction depends on the notice of appeal being actually given, and not on the record of such fact. 7. Appeal and error 1180(3)-Judgment on appeal held to affect parties not appealing where single question involved. Where the question in litigation was the validity of a consolidated school line district, it being a single question, the judgment of the Court of Civil Appeals reversing the judgment of the lower court affected all defendants not appealing as well as defendants appealing; the interest of parties defendant not being severable. Suit by John Yawn and others against Rod Drake and others. From a judgment and injunction in favor of plaintiffs, defendants appeal. Reversed, and injunction dissolved. Coe & Combs, of Kountze, for appellants. Coleman & Lowe, of Woodville, for appellees. O'QUINN, J. This is an appeal from a judgment of the district court of Tyler county, Tex., adjudging that common school district No. 2 of Hardin county and common school district No. 40 of Tyler county be and compose consolidated common school county line district No. 40 of Tyler and Hardin counties, and that the management and control of the school in said district be vested in the board of county school trustees of said Tyler county, and said judgment permanently restrained the trustees of said common school district No. 2 of Hardin county and the board of county school trustees of said Hardin county, and the county superintendent of said Hardin county, from in any manner interfering with common school county said consolidated line district No. 40, and commanded the county depository of said Hardin county and its officials to transfer the funds coming into its possession belonging to the territory designated as common school district No. 2 of Hardin county to the proper depository and officials of said Tyler county for the benefit of said consolidated common school county line district No. 40, and that no school be maintained in any part of said district and no funds expended except on order of said county school trustees of said Tyler county. The record discloses that in the year 1915, school disthe local trustees of common trict No. 2 of Hardin county and the local trustees of common school district No. 40 of Tyler county, the said districts adjoining, mutually agreed in writing that the two districts should be consolidated for school 8. Statutes 211-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 33-Statute additional room should be built to said schoolhouse, another teacher employed, and held not to authorize consolidation of school districts by local boards of school trustees. a transfer wagon bought and operated for Vernon's Sayles' Ann. Civ. St. 1914, art. 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 teachwas employed, and a transfer wagon terested," and not to authorize the consolida- er For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |