
    LANDRY v. ROBISON, Com’r, et al.
    (No. 3183.)
    (Supreme Court of Texas.
    March 10, 1920.)
    1. Mines and hiñerais <&wkey;9 — Bed or navigable STREAM NOT OTHER “PUBLIC LANDS” WITHIN STATUTE AUTHORIZING PROSPECTING THEREOF.
    The bed of a navigable river within Kev. St 1911, art. 5338, was not open to prospecting for and development of petroleum prior to Laws 1917, c. 83 (Vernon’s Ann. Civ. St. Supp. 1918, arts. 59O4-5904w), notwithstanding Laws 1913, c. 173, opening to mineral prospecting “all public school, university, asylum and the other public lands, fresh water lakes, islands, bays, marshes, reefs, and salt water lakes, belonging to the state of Texas”; the bed of a navigable river not being other “public lands” within such statute.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Public Land.]
    2. Mines and minerals <$=9 — Land not “surveyed land” where survey was VOID.
    The actual survey of the bed of a navigable stream by county surveyor under application for the right to prospect and develop petroleum in such land under Laws 1913, c. 173, did not make such land “surveyed land” within act of March 16, 1917 (Laws 1917, c. 83, Vernon’s Ann. Civ. St. Supp. 1918, arts. 5904-5904w), relating to prospecting for petroleum in such land, since the survey, having been made under former statute which did not open up such land to prospecting for petroleum, was void.
    3. Public lands <&wkey;180 — Status of land as SURVEYED NOT AFFECTED BY VOID SURVEY AND FIELD NOTES.
    In order for the status of land, as surveyed or unsurveyed land to be affected by approved field notes on file in the General Land Office, the survey of the land and the filing and approval of the field notes by the land commissioner must not be void because violative of law.
    4. Public lands <&wkey;180 — Instruments not ARCHIVES WHERE FILING NOT AUTHORIZED.
    Under Rev. St. 1911, art. 82, instruments deposited or filed in a General Land Office do not become archives thereof, unless their deposit or filing was authorized by law.
    Original proceedings for mandamus by Mrs. Clara Landry against J. T. Robison, Commissioner, and others.
    Writ awarded.
    T. M. West, of San Antonio, John W. Parker, of Houston, and W. H. Russell, of San Antonio, for plaintiff.
    C. M. Cureton, Atty. Gen., W. F. Sehenck, Asst. Atty. Gen., and Huggins & Kayser, of Houston, for defendant.
   GREENWOOD, J.

Respondent P. J. Duffy, being duly 'qualified, and desiring to obtain the right to prospect for and develop petroleum and natural .gas in 195 acres of land in the bed and channel of the San Ja-cinto river, near Humble, in Harris county, under chapter 173, approved April 9, 1913, of the General Laws of the Thirty-Third Legislature, p. 409, filed his written application therefor, on January 12, 1916, with the county surveyor of Harris county, who immediately filed and recorded same, and within 90 days, surveyed the 195 acres and delivered to said respondent field notes, together with said application, and thereupon said application and field notes, with fee, were filed with the Commissioner of the General Land Office, who, on April 9, 1916, approved same, and issued to respondent Duffy a permit to prospect for and develop the petroleum and natural gas that might be under the. surface of said 195 acres of land.

The San Jacinto river is a navigable stream within the meaning of R. S. art. 5338, retaining an average width of more than 30 feet.

Relator, Clara Landry, is the owner of whatever right was acquired by her deceased husband, Emmett Landry, who, being duly qualified, and desiring to obtain the right to prospect for and develop the petroleum and natural gas that may be in 156.3 acres of the bed and channel of the San Jacinto river in Harris county, being a part of the 195 acres surveyed for respondent, Duffy, filed a written application for said right with the county surveyor of Harris county on June 20, 1917, under chapter 83, approved March 16, 1917, of the General Laws of the Thirty-Fifth Legislature, page 158 (Yernon’s Ann. Civ. St. Supp. 1918, arts. 5904-59O4w), and paid the filing fee, and the surveyor filed and recorded the application, and within 90 days surveyed and platted the 156.3 acres. Emmett Landry thereafter, on June 30, 1917, filed the application, field notes, plat, and proper affidavit in the General Land Office, paying the filing fee and 10 cents per acre for each acre applied for, and the commissioner found same to be correct.

On July 6, 1917, the permit to respondent Duffy was canceled by the Commissioner of the General Land Office for failure to comply with the terms of the permit to said respondent.

On July 6, 1917, the respondent N. E. Meador, who was duly qualified, filed with the county clerk of Harris county a written application for the right to prospect for and develop petroleum and natural gas in the 195 acres surveyed for respondent Duffy, referring for description of the land to the permit issued to Duffy and the field notes on which the same was based, and the county clerk filed and recorded the application and made the appropriate notation, and thereafter, when the Commissioner of the General Land Office received said application, and accompanying sworn statement, he filed same, and on August 10, 1917, lie issued to respondent Meador a permit, purporting to confer on liini and his assigns tile exclusive right to prospect for and develop petroleum and gas within the area of said 195 acres of land. The claim of respondent Meador has since passed to the respondent West Production Company, save a r/24 royalty interest reserved by respondent Meador.

The Commissioner of the General Land Office rejected the application of Emmett Landry because he was of the opinion that the act of April 9, 1913, authorized the application of respondent Duffy and the survey and permit thereunder, and because he was also of the opinion that, even if these proceedings were unauthorized, they had the effect to convert the 195 acres into “surveyed land,” and that hence the application of respondent Meador alone complied with the act of March 16, 1917, and therefore said respondent and his assigns had the exclusive right to prospect for and develop the petroleum and gas in the land.

The relator has succeeded to the right of an applicant who complied with every requirement prescribed by the act of March 16, 1917, to entitle one to a permit to prospect for and develop petroleum and gas in the 156.3-acre tract, in the channel and bed of the San Jacinto river, provided said 156.3-acre tract was, on June 20, 1917, “unsur-veyed land” in the river channel and bed within the meaning of that act. Unless the 156.3 acres became “surveyed land” by virtue of the proceedings under the Duffy application, manifestly the tract had no such status.

We are of the opinion that the act of April 9, 1913, under which the proceedings by Duffy were had, in no wise authorized same, and that Duffy’s application, survey, field notes, and permit were void.

It is the contention of respondent that the bed or channel of a navigable river comes within the meaning of “other public lands” in section 1 of the act of April 9, 1913, whereby “all public school, university, asylum and the other public lands, fresh water lakes, islands, bays, marshes, reefs, and salt water lakes, belonging to the state of Texas,” are declared “included within the provisions of this act” and “open to mineral prospecting, mineral development and the lease'of mineral rights therein.”

Had there been no statutory reservation of the beds or channels of navigable rivers, we do not think that such general language as “other public lands” could be held to include the soil beneath .navigable waters. For our decisions are unanimous in the declaration that by the principles of the civil and common law soil under navigable waters was treated as held by the state or nation in trust for the whole people. The trust impressed thereon withdraws such soil from the operation of general provisions like those of the act of April 9, 1913, for the reason that nothing short of express and positive language can suffice to evidence the intention to grant exclusive private privileges or rights in that held for the common use and benefit. City of Galveston v. Menard, 23 Tex. 390; Rosborough v. Picton, 12 Tex. Civ. App. 116, 31 S. W. 791, 43 S. W. 1033; Hynes v. Packard, 92 Tex. 49, 45 S. W. 562; Wiel on Water Rights in the Western States, § 898.

It was determined in De Merit v. Robison, 102 Tex. 358, 116 S. W. 796, that submerged land under the shallow waters of San Ja-cinto Bay, covered by the flow of the tide and uncovered by the ebb of the tide, did not com'e within the meaning of the phrase “public land” as used in Act of 1895, p. 197, carried as article 5904 into the Revised Statutes of 1911. It had previously been declared in Roberts v. Terrell, 101 Tex. 577, 110 S. W. 733, that an island was not subject to be appropriated by location of a land certificate, notwithstanding the Legislature had provided for the location of the certificate “upon any of the vacant public lands of the state either within or without the several reservations heretofore created by law.” To meet these decisions, the act of April 9, 1913, expressly made subject to mineral exploitation “fresh water lakes, islands, bays, marshes, reefs, and salt water lakes.” The act of March 16, 1917, introduced for the first time, as the subject of mineral permits, “river beds and channels.” The express addition, in 1917, of “river beds and channels” to the lands to be subjected to mineral exploitation and development shows the legislative construction that the language of the act of April 9, 1913, did not embrace the beds and channels of rivers.

All doubt upon this question seems dispelled by section 2 of the act of December 14, 1837, being article 5338 of the Revised Statutes of 1911, formerly article 4147, whereby all lands surveyed for individuals on navigable water courses are required to front one-half of the square on the water course, and whereby all streams so far as they retain an average width of 30 feet are declared navigable streams, and whereby it is provided that such streams shall not be crossed by the lines of any survey. This court construed the statute in the case of the City of Austin v. Hall, 93 Tex. 597, 57 S. W. 565, in the following language:

“The apparent object of the Congress of the Republic in enacting the law which is now embodied in article 4147 and of the several Legislatures which have continued it in force was to prevent locators upon the public domain from monopolizing the water of the state. At the time the act was passed, the great body of the lands of Texas was public domain, and was subject to location by many grants already in existence, as well as- those necessarily to be issued in the future, and the Congress, foreseeing the necessity of preserving in that territory the streams which afforded water, that the public might have the use of them, enacted this statute. By requiring the grant to be located, one-half of its front upon the stream, the locator was prevented from extending it up and down the margin and thereby controlling largely the water front on one side. By the prohibition against crossing the stream with the lines of a survey, the locator was likewise prevented from controlling the water front of the stream on both sides, and thus the water of such streams would be preserved in a larger measure to those who were entitled to locate the lands of the state. But, in addition thereto, by declaring such streams to be navigable, the state reserved the title to the beds thereof, which are subject to the control of the state.”

Of course, we could not say such general language as that used in the act of April 9, 1913, related to lands which had been continuously reserved by the state from appropriation, by means of express statutory enactments, for more than 75 years. Day Co. v. State, 68 Tex. 552, 4 S. W. 865.

Section 21 of the act of December 14, 1837, was not expressly repealed by the act of April 9, 1913, and it is plain that there is no such positive contradiction between section 21 and any of the terms of the 1913 act as to result in an implied repeal of said section. Hence the terms of section 21 forbade a survey, under the act of April 9,1913, for an individual, of any part of the bed of a stream declared navigable because of the impossibility of constructing such a survey without a line thereof crossing the stream in whole or in part.

It was decided in Land Co. v. Thompson, 83 Tex. 179, 17 S. W. 920, that surveys astride Devils river, made in 1876 and 1877, constituted no appropriation of the land, to protect it from subsequent location, because forbidden by the statute, and therefore illegal.

It follows that until the Legislature passed the act of March 16, 1917, the law did not authorize, but forbade, the grant by the state to individuals of any right in the bed or channel of such a river as the San Ja-cinto.

We do not agree with the view that the actual survey of the 195 acres, by the county surveyor, under Duffy’s application, and the approval and filing of the field notes, by the Commissioner of the General Land Office, made the 195 acres “surveyed land” within the meaning of the Act of March 16, 1917.

In order for the status of land, as surveyed or unsurveyed, to be affected by approved field notes, on file in the General Land Office, the survey of the land, and the filing and approval of the field notes by the Land Commissioner must not be void because violative of law.

Instruments deposited or filed in the General Land Office do not become archives thereof unless their deposit or filing was authorized by law, and it would be a strange rule which would fix the status of public land by instruments in the Land Office forming no part of its archives. Article 82, R. S.

In Sibley v. Robison, 212 S. W. 933, the court announced that land acquires the status of “surveyed land” when it “has been ‘surveyed’ in the manner provided by law.”

As the land covered by the application of Emmett Landry was “unsurveyed land,” at the date of his application, and he caused all things to be done entitling him to the mineral permit applied for, we think it was clearly the duty of the Commissioner of the General Land Office to issue the permit, and the mandamus applied for is awarded relator. 
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