
    SAWYER v. ROBISON, General Land Office Com’r, et al.
    (No. 6334.)
    (Commission of Appeals of Texas, Section A.
    Jan. 28, 1925.)
    1. Mandamus <3=^85 — Mandamus held not proper proceeding to avoid mining lease granted by commissioner of general land office.
    Where general land office has leased oil and gas rights under Acts 1917, c. 83 (Vernon’s Ann. Civ. St. Supp. 1918, art. 5904 et seq.), and state has recognized and received benefits for three years, mandamus held not proper proceeding to compel commissioner to avoid lease, which is analogous to grant from state and which commissioner has no power or authority to. avoid; proper action being by state to cancel lease.
    2. Mines and minerals <®=>5 — Grant of lease of oil and gas rights by general land office precludes attack on it by all parties except state or holders of prior equities.
    Grant of lease of oil and gas rights by commissioner of public land office, reciting compliance with Acts 1917, c. 83 (Vernon’s Ann. Civ. St. Supp. 1918, art, 5904, et seq.), held, to preclude attack on its validity because of irregularities, fraud, or collusion by all parties except state or holders of prior equities.
    3. Mines and minerals <®==>6 — 'Two applications for permit to prospect for oil and gas for same area, one of which abandoned, not violation of statute.
    Two applications under Acts 1917, c. 83 (Vernon’s Ann. Civ. St. Supp. 1918, art. 5904 et seq.), for permit to prospect for oil held not violation of section 16 (article 5904p), providing “no permit, lease or patent shall embrace the area in two or more applications,” and “no application, permit, lease or patent shall embrace a divided area,” where first was abandoned, and both embraced same area.
    4. Mines and minerals <®=»6 — Complaint as to form of permit and field notes complying with statute relating to prospecting for oil without merit.
    Complaint that formal permit and field notes purported to be in accordance with Acts 1917, e. 83, §§ 3, 4 (Vernon’s Ann. Civ. St. Supp. 1918, arts. 5904b, 5904c), instead of under section 4 only, held technical and without merit; it appearing that all proceedings were taken as under section 4.
    5. Mines and minerals Beginning of survey prior to filing application for permit to prospect for oil immaterial to validity of permit.
    Beginning survey ten days before filing application for permit to prospect for oil and gas under Acts 1917, c. 83 (Vernon’s Ann. Civ. St. Supp. 1918, art. 5994 et seq.), held immaterial as to validity of permit, where survey completed, and adopted after filing of application and in reference to it.
    6. Mines and minerals <®=»6 — Complaint as to correctness of field notes and plat accompanying application for permit to prospect for oil held to present question of fact.
    Complaint as to correctness of field notes and plat accompanying application under Acts 1917, c. 83 (Vernon’s Ann. Civ. St. Supp. 1918, art. 5904 et seq.), for permit to prospect for oil and gas, held merely to present question of fact.
    7. Mines and minerals — Designation of area, covered by application for permit to prospect for oil, as 494 acres instead of 413, held immaterial to validity of permit.
    Designation of area covered by application under Acts 1917, c. 83 (Vernon’s Ann. Civ. St. Supp. 1918, art. 5904 et seq.), for permit to prospect for oil, as 493 acres instead of 413, held immaterial to validity of permit and lease, especially where payments were made on basis of 493 acres.
    8. Mines and minerals <S=>6— Failure of survey- or to make actual survey held not to void permit and'lease, secured under statute, to prospect for oil.
    Failure of surveyor to make actual survey of ground held not to void permit and lease to prospect for and develop oil and gas, as provided under Acts 1917, c. 83 (Vernon’s Ann. Civ. St. Supp. 1918, art. 5904 et seq.), in vi„ew of fact that area could be accurately described without survey.
    9. Evidence <⅞=»89 — Affidavit of surveyor impeaching certificate made in course of duty held of no probative force, in view of presumption as to officer having done his duty.
    Affidavit of surveyor tending to impeach his certificate as to actual ground survey made in course of duty held to have no probative force, in view of presumption that he did his duty and stated truth in his certificate.
    10. Evidence <⅝=>83(3) — Commissioner, having issued permit to prospect for oil, presumed to have done duty in securing necessary data.
    Commissioner of general land office, having issued permit to prospect for oil and gas, under Acts 1917, c. 83 (Vernon’s Ann. Civ. St. Supp. 1918, art. 5904 et seq.), is presumed to have done his duty under section 5 (article 5904d), secured necessary data and information, and found field notes correct.
    11. Mines and minerals <©==>6 — Failure to file statement as to work done under permit to prospect for oil within prescribed time after permit granted held not to ipso facto work forfeiture.
    Filing of statement as to work done under permit to prospect for oil, under Acts 1917, c. 83 (Vfernon’s Ann. Civ. St. Supp. 1918, art. 6904 et seq.), 18 months after it was granted, rather than 13 as required, held not to work forfeiture ipso facto; purpose of statement being to show efforts made under permit during first 12 months, and presumption being commissioner applied law and found actual work complied with requirement.
    12. Mines and minerals <g=x>5 — State only oan complain if commissioner waives strict compliance with statute providing for lease of oil lands.
    Where oil has been discovered and developed, and state has accepted ample consideration for lease, granted under Acts 1917, c. 83 (Vernon’s Ann. Civ. St. Supp. 1918, art. 6904 et seq.), only state can complain of waiver by commissioner of strict compliance with requirements of statute.
    Motion for leave to file petition for mandamus by O. B. Sawyer against J. T. Rob-ison, ás Commissioner of the General Land Office, and others.
    Motion overruled.
    Howth, Adams, O’Eiel & Hort, and Jos. A. Wisong, all of Beaumont, and Dies, Stephenson & Dies, of Orange, for relator.
   GERMAN, P. J.

O. B. Sawyer is seeking leave to file a petition for writ of mandamus against J. T. Robison, as commissioner of the general land office, and James N. Parker and several others are named as respondents.' His purpose is to require the commissioner by mandamus to cancel and set aside a certain oil and gas permit and lease heretofore granted to James N. Parker, and to compel him to issue to relator an exclusive oil and gas permit and lease on certain land in Orange county, Tex., being the bed or channel of’ Cow bayou between certain designated points. The following statement will reflect the essential facts:

1. December 4, 1919, James N. Parker filed with the county clerk of Orange county his application for permit to prospect for and develop oil and gas in the bed or channel of Cow bayou. No action appears to have ever been taken under this application.

2. December 11, 1919, James N. Parker filed with the county surveyor of Orange county his application for permit to prospect for and develop oil and gas in the bed or channel of Cow bayou, which he designates as unsurveyed land, describing the same as containing approximately 494 acres, giving a general but accurate description of the land. This application was made under the provision of chapter 83, Act approved March 16, 1917 (Vernon’s Ann. Civ. St. Supp. 1918, art. 5904 et seq.).

3. December 26, 1919, Parker filed in the general land office the application filed by him with' the county surveyor December 11, 1919, together with field notes and plat made by Jáek Noguess, county surveyor of Orange county, to which field notes was attached the certificate of the surveyor to the effect that the survey was made by him on the ground and according to law, and that the boundaries, corners, etc., are truly described in the field notes. This certificate is dated December 23, 1919, and shows that the survey was made December 1 to 23,1919. In addition to several hundred meander calls these field notes accurately describe the land covered by the application by beginning at the intersection of the west bank of the bayou with Sabine river; thence up the west bank with its meanders to the northwest • corner of the Henrie survey, thence across the bayou to its east bank; thence down its east bank with meanders to the intersection with the Sabine river; thence to the beginning.

4.May 5, 1920, the commissioner of the general land office issued to James N. Parker oil and gas permit No. 6814, based upon his application of December 11, 1919, covering 494 acres of land, describing it as above set out, which permit recites that Parker had fully complied with all the provisions of chapter S3, Act approved March 16, 1917, with reference to the matter of obtaining such permit.

6. October 31, 1921, the commissioner issued to the said Parker another permit, which recites that by inadvertence the first permit was partly prepared on blank form of permit used for university lands, and the second permit was issued in lieu of and as a substitute for the first. This second permit recites full compliance with the law, and contains all the requirements of the act of March 16, 1917.

In the first permit granted, in which form for university lands was used, it is provided that before the expiration of 18 months from its date the'owner shall in good faith commence actual work necessary to the development, and, if oil is not developed within 18 months, then the owner, within 30 days after the expiration of the 18 months, shall file in the general land office a sworn statement that actual work was begun within the 18 months. The second permit contains a like clause, but the time for commencing actual work is limited to 12 months instead of 18 months.

6. October 4, 1921, Parker filed on the land office a sworn statement, made under date of October 1, 1921, to the effect that within the period of 18 months allowed in the permit of March 5, 1920, he had begun actual work for the development of the land covered by his permit, which statement fully complies with the law in the matter of showing the work done, the expenses incurred, etc., and is supported by the affidavit of two disinterested persons. It also shows that during a part of the time bona fide litigation existed with reference to his right to the possession of the land covered by the permit. There is nothing in the statement to show the exact date when the actual work of development was done.

7. May 8, 1922, Parker filed in the general land office his affidavit under date of April 27, 1922, showing that on April 22, 1922, petroleum oil in commercial quantities had been developed from the area covered by his permit No. 6814. There is attached to this affidavit a log of the well, and it appears to be in compliance with the law in other respects. In connection with said statement he makes application for a mineral, oil, and gas lease covering the land embraced in his permit.

8. On May 17, 1922, the commissioner of the general land office issued to Parker a lease for' the purpose of operating for and developing the oil and gas in and under the land covered by the permit; it being described in general terms as above set out. This lease appears to comply with the terms of the law with reference to payment of rentals royalty, etc. Among other things, it recites: “It appearing that the said James N. Parker has complied with all the provisions of the law relating to said permit.”

Relator alleges that on January 12, 1924, he filed with the county surveyor of Orange county his application, for permit to prospect for and develop oil and gas in the bed or channel of Cow bayou; that in due time he caused, an actual survey to be made, and that said application and field notes were properly filed in the general land office April 19, 1924; that he has tendered the sum of money necessary for obtaining a lease, it having already been pointed out to the commissioner that oil in paying quantities had been theretofore produced on said lands; that he has in all respects complied with all the requirements of the law, and has made demand upon the commissioner to grant him a permit and lease, which the commissioner has refused to do.

The basis of relator’s request for mandamus is that, due to certain alleged fraud on the part of the county- surveyor, which was ratified by Parker, the failure of Parker to comply with certain requirements of the law and certain alleged irregularities in connection with the application, the permit, and lease were ipso facto forfeited, and are null and void, and that by reason of his application he is entitled to a permit and lease for developing said land for oil and gas.

Before setting out the contentions upon which he relies we briefly refer -to- two propositions of law which we think conclusively destroy the foundation of relator’s alleged right to obtain by mandamus the ends sought by him.

The lease to Parker was granted May 17, 1922, and has therefore been recognized by the state for nearly 3 years. Large developments have been made thereunder, and the state has received substantial benefits in the way of royalties, etc. No action has been taken by the state to annul the same. We therefore think it occupies exactly the same legal status as a grant from the state to land. It concedes to the lessee and his assigns all the right and title of the state to the estate dealt with, under the conditions stated therein, the same as a patent conveys the title of the state to land. The act in question does not give the commissioner of the general land office power or authority to declare said lease void and grant rights in conflict with it. He should therefore not be compelled to do so in a proceeding of this kind. That there has been no ipso facto forfeiture of the permit or lease by reason of any provision of the law we think is certain. Underwood v. Robison, 109 Tex. 228, 204 S. W. 314. If the lease has been wrongfully granted, the proper procedure is an action by the state to cancel same. Taking the position, as we do, that the lease is entitled to the same legal consideration as a patent from the state, the opinion of the Supreme Court-in the case of Fitzgerald v. Robison, 110 Tex. 468, 220 S. W. 768, becomes directly applicable.

Again, it is disclosed that the alleged rights of relator accrued about 4 years after issuance of the permit to Parker and about 2 years after the granting of the lease. He therefore has no prior equities. The granting of the permit and oil lease by the commissioner of the general land office, reciting that all provisions of the law with reference thereto had been complied with, precludes all parties, other than the state and those holding prior equities, from attacking the validity of same because of irregularities, fraud, or collusion. Logan v. Curry et al., 95 Tex. 664, 69 S. W. 129; Barnes v. Williams, 102 Tex. 444, 119 S. W. 89; Campbell v. Elliott (Tex. Civ. App.) 151 S. W. 1180 (writ refused).

It is wholly unnecessary to notice all of the propositions relied upon by relator. We refer to some of the more substantial ones:

1. Complaint is made because Parker filed two applications for permit, one with the county clerk December 4, 1919, and the other with the county surveyor December 11, 1919; it being claimed that this was in violation of that section of the law (Vernon’s Ann. Civ. St. Supp. 1918, art. 5904p) which provides that “no permit, lease or patent shall embrace the area in two or more applications;” and “no application, permit, lease or patent shall embrace a divided area.” The record is conclusive that each and every subsequent step, taken in the matter was under the application of December 11, 1919; it is very evident that the application of December 4,1919, was abandoned. As the two embraced the same area, the section of the law quoted has no application whatever.

2. Complaint is also made because the permit and field notes purport to have been made in accordance with the provisions of sections 3 and 4 of chapter 83 (Vernon’s Ann. Civ. St. .Supp. 1918, arts. 5904b, 5904c), instead of under section 4 only. It is apparent from an examination of these papers that they were prepared on forms which had been printed so as to be applicable and to be used by persons applying under the provisions of either section. It appearing that all proceedings were taken as under section 4 of the act, this contention is purely technical and without merit.

3. It is claimed that the application is not valid because the survey was made between the dates of December 1st and December 23d, while the application was not filed until December 11th. It occurs to us as wholly immaterial that a part of the work may have been done before the application was filed, if it were completed and adopted by the surveyor after the filing of the application, as applying to the application in question.

4. It is asserted that the field notes and plat which accompanied the application do not correctly represent the true course of the bed of the bayou, and the courses and distance called for cannot be found on the ground. This presents a question of fact. Besides it is presumed that the commissioner of the general land office, as required by section 5 of the act (Vernon’s Ann. Oiv. St. Supp. 1918, art. 5904d), examined the field notes and found them correct. Complaint is also made in this connection that the application designates the area as containing approximately 494 acres, while in fact there are only 413 acres. Barker appears to have made payments on the basis of 494 acres, and if there was a less acreage certainly the state nor any one else has a right to complain.

5. Relator strenuously insists that the permit and lease are void, because it appears from a consideration of the field notes and the plat that the county surveyor did not make an actual survey of the land on the ground, and that therefore his certificate to that effect is false; that by reason of this fraudulent representation made by the surveyor, and ratified by Parker, and the fact that there was no actual survey made on the ground, the permit and lease are void. The failure to make an actual survey on the ground, especially, as here, when the area can be accurately described without a survey, does not render the permit void. Fin-berg v. Gilbert, 104 Tex. 539, 546, 141 S. W. 82. Besides, it is presumed that the surveyor did his duty and made a truthful statement in his certificate until the contrary is proven. This, as we see it, presents an issue of fact, and we think the affidavit of the surveyor filed herein, which tends to impeach his certificate, could, if necessary, be treated as having no probative force. See Johnston v. Ry. Co., 146 Tenn. 135, 240 S. W. 430.. But we call attention to the fact that section 5 of the act (Vernon’s Ann. Civ. St. Supp. 1918, art. 5904d) provides that, “if upon examination the application or the application and field notes are found correct and the area applied for is within the provisions of this act,” the commissioner shall issue the permit. The commissioner having issued the permit in this instance, it is presumed that he did his duty; that he had all the necessary data, knowledge, and information upon which to base his action; and that he found the field notes to be correct. Clements v. Robison, 111 Tex. 449, 239 S. W. 902. The area in question, being the bed or channel of the bayou, was susceptible of accurate description without a survey, and the commissioner evidently found in the field notes and application all necessary data for computing the acreage.

6. Relator strenuously contends that the lease is void and that there was a forfeiture of the permit by operation of law, because the sworn statement of Parker as to the beginning of actual work was not filed until October 4, 1921, whereas the law required the filing of such statement within 13 months after the issuance of permit. That this did not work an ipso facto forfeiture see Underwood v. Robison, supra. The purpose of such statement no doubt was to advise the commissioner as to what bona fide efforts were being made to prospect and develop the land; it being evidently contemplated that such efforts would be begun within 12 months, from the date of the permit. The affidavit of Parker shows that substantial work was done within a period of 18 months, but it does not follow from this that it was not begun within a period of 12 months. It will be presumed that the commissioner ascertained that the law with reference to actual work begun and done was complied with, and it seems to us to be immaterial that the affidavit was not filed within the time specified.- If further appears that oil was discovered and developed in paying quantities, within a period of 2 years from the issuance of permit, as a result of the efforts of Parker, which the state accepted as sufficient consideration for granting the lease, and we certainly think that no one other than the state is in position to complain if a strict compliance with the requirements of the law was waived by the commissioner.

This disposes of every substantial conten-tention made by relator, and we recommend that the motion for leave to file the petition for mandamus be denied.

CURETON, C. J. The opinion of the Commission of Appeals on motion for leave to file the petition for mandamus is adopted, and the motion is overruled. 
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