
    NOBLE et al. v. ROBISON, Commissioner of General Land Office, et al.
    (No. 5371.)
    (Supreme Court of Texas.
    May 3, 1922.)
    Mines and minerals <&wkey;4 — Purchaser and assignees held estopped to claim land purchased under any other classification than mining land.
    Where the commissioner of the general land office reclassified land as mineral land and dry grazing land, and, on request in application to purchase land under Acts 29th Leg. (1905),. c. 103, § 5, prepared a list showing the land as “min. and dry graz.,” which was filed in the office of the county clerk, who did not enter the mineral classification on his classification and sales record, but where purchaser’s affidavit in support of such application under Rev. St. 1895, art. 3495, stated that the land had been classified as mineral land, and that applicant waived rights to the minerals, and the commissioner treated the land as mineral land as shown by the indorsement on the application, neither the purchaser nor his assignees could thereafter, in good conscience, assert that they purchased the land under any other classification.
    On motion for leave to file petition for mandamus by Herbert Noble and others against J. T. Robison, Commissioner of the General- Land Office, and otters.
    Motion denied.
    Jas. H. Kirkpatrick, of New York City, and G. B. Smedley, of Austin, for the motion.
   GREENWOOD, J.

Relators ask leave to file a petition for mandamus to compel the cancellation of an oil and gas permit on 640 acres of land in Pecos county. The facts relied on are stated in relators’ motion in language substantially as follows:

The section of land was unsold, surveyed public school land until it was purchased from the state by Fred Gibso,n. On September 27; 1901, the commissioner of the general land office, in pursuance of a requirement in act of 1901 (Acts 27th Leg., e. 125) that he make and send to the county clerks’ of all the counties in the state lists of all the unsold public school lands in such counties, showing the classification and appraisement of all such unsold school lands, prepared a list of the unsold school lands in Pecos county and forwarded it to the county clerk of said county. In said list the section of land described in the petition appeared as unsold, and classified as dry grazing, and appraised at $1 per acre. This list was received by the county clerk of Pecos county, and was duly entered in a well-bound book in his office constituting the classification and sales record of public school lands in said county.

On November 30, 1901, Commissioner Rogan, of the general land office, reclassified a large number of sections in the west part of Texas, among them being the section here in question. He made out a classification list, which showed this section as follows:

Dry grazing. 100 00

A copy of this list was mailed to the county clerk of Pecos county, and was filed by such clerk. The data in this list was not recorded by tlie clerk; that ,is, it was not noted in his record of classification and sales. That record continued to show the dry grazing classification of 1901 and the valuation of $1.

The section in question, together with a number of others, was leased for grazing in 1904, and subsequently, on November 24, 1906; this lease was assigned to Fred Gibson.

On December 11, 1908, Fred Gibson filed in the general land office his application, under section 5 of the act of 1905 (Acts 29th Leg., c. 103), to purchase eight sections, including the section in question, out of this lease. In this application he requests the Commissioner to “classify and value according to law the following surveys in Pecos county,” and then describes the eight sections.

On December 12, 1906, the commissioner of the general land office wrote a letter to Fred Gibson, iri which, after reciting the receipt of the foregoing application, he informed him that three of the sections so designated would be subject to sale “as dry grazing at $1.50 per acre each,”. but that “the balance of the sections mentioned by you- are classed as minerals and valued at $25 per acre each.” Such “balance” included the section described in the petition.

Between the date on which this letter was written and the date January 3, 1907, the assignee Fred Gibson filed in the general land office an affidavit, verified the 19th of December, 1906, in which three persons, swearing that they are in no wise interested in the purchase of the lands, swear “that there are no minerals embraced in title LXXI of the Revised Statutes of 1895 on the following described surveys,” describing the five surveys including the section in question. This affidavit is now found in the general land office.

On January 3, 1907, a classification was made by the commissioner, including the section in question and a number of other sections, and a list prepared showing such lands and the classifications. In this list the section in question is shown as “Min. and dry graz.,” with a valuation of $1.50 per acre. A copy of this list was mailed to the county clerk of Pecos county, and was filed in his office on the 8th day of January, 1907, at 8 a. m., but the clerk did not enter the mineral classification on his classification and sales record.

On January 4, 1907, the commissioner wrote the following letter to Fred Gibson:

“General Land Office, State of Texas, Austin.
“John J. Terrell, Commissioner.
“J. T. Robison, Chief Clerk.
“Jan. 4, 1907.
“Mr. Fred Gibson, Ft. Stockton, Texas— Dear Sir: Replying to yours of the 7th ult. in which you as the assignee of lease 36362 state that you desire to purchase sections 2, 8, 12, 14 and 18, block 141, T. & St. L. Ry. Co. Pecos county you are advised that those tracts will be subject to sale to you as designated as dry grazing at $1.50 per acre provided by Act April 15, 1905.
“Yours truly, Stubblefield, Commissioner.”

The above- letter of January 4, 1907, was copied in the letter press copy books kept in the general land office, and a carbon copy of the letter was retained in the general land office and was filed among the papers relating to the lease above referred to. A duplicate, signed by the commissioner, of the letter of the 4th of January, 1907, was mailed to the county clerk of Pecos county, was received by that clerk, and was filed by him on the 8th of January, 1907, at 8 a. m., among the records of his office relating to classification and sales of school land.

On the 8th day of January, 1907, at 8 a. m., the county clerk of Pecos county thus received two documents from the general land office. The first document was the list of January 3, 1907. This list stated a classification of mineral and dry grazing, and showed a valuation of $1.50. The second document was the carbon of the letter of January 4, 1907. This carbon stated a classification of dry grazing, with a valuation of $1.50.

.At that time the county clerk’s classification and sales record showed, in respect to the section in question, a classification of dry grazing and a valuation of $1, being the original September, 1901, classification by Commissioner Rogan. On the 8th day of January, 1907, the county clerk noted in this record a new valuation of $1.50. He did not change the dry grazing classification shown on his record, and his record has continued to show a dry grazing classification and a valuation of $1.50.

On the 8th day of January, 1907, the as-signee, Fred Gibson, verified eight applications for the eight sections described in his application as assignee, including the section in question. In the application for the land in question the classification is given as dry grazing, and the price at $1.50 per acre. The application for the section in question, being survey No. 12, and seven other applications for other sections were filed in the general land office on January H, 1907. The application for section 12 bore an indorsement máde in the general land office as follows: “Class: D. G. & M.” — evidently meaning that the section was classified as dry grazing and mineral land. The application was accompanied by an affidavit as follows:

“The State of Texas, County of Pecos.
“Before me, the undersigned authority, on this day personally appeared Fred Gibson, who, after being by me duly sworn according to law, deposes and says that to the best of his knowledge and belief there are no minerals embraced in title LXXI of the Revised Statutes'of 1895 on—
Sur. Bl. Cert. No. Orig. Grantee. Acres. County.
8 141 272 T. & S. L. Ry. Co. 640 Pecos
12 141 274 T. & S. L. Ry. Co. 640 Pecos
14 141 275 T. & S. L. Ry. Co. 640 Pecos
18 141 277 T. & S. Li. Ry. Co. 640 Pecos
“That said land has heretofore been classed as mineral land, and, believing that there is no mineral thereon, and hereby waiving all rights to the minerals on said surveys to the state of Texas, should there be any mineral deposits of any character hereafter found in or on said land, and in the event of a sale to me of the foregoing lands or any part thereof, it is expressly agreed and understood that I acquire no right, title or interest in or to any minerals that are now or may hereafter be known or found to exist in or on said land.
“Sworn to and subscribed before me this 8th day of January, 1907. Fred Gibson.
“[Seal.] O. W. Williams,
“Notary Public, Pecos Co., Texas.”

The county clerk of Pecos county was duly notified of the sale to Fred Gibson, and noted in his record of unsold lands “Fred Gibson” as the purchaser of these five sections, and “January 11,'1907,” as the date of sale. Due settlement was made by the purchaser, and the conditions as to occupancy and improvement performed. The interest payments have been made, and the sale is in good standing on the records of the general land office. The relators, through regular chain of title, are the owners of all the rights acquired by Fred Gibson in his purchase of the land in question.

. The west half of • one of the sections of land purchased by Gibson at the time he purchased the section in question, and the facts as to the classification of which are the same as the facts as to the section in question, was patented by the state in 1910, and in the patent no reference was made to the minerals, and no recital appeared undertaking to reserve the minerals.

On January 3, 1920, the respondent, the commissioner of the general land office, upon an application theretofore filed issued to one Stokes, under the Mineral Act of 1917 (Vernon’s Ann. Civ. St. Supp. 1918, arts. 5904-5904w) an oil and gas permit on the land in question treating the land as if sold by the state with reservation of the minerals. The respondent Grant Oil Corporation of Texas is now by assignment the owner of that permit. The commissioner has refused to comply with the demand of relators to cancel the said permit and to make entries on the records of his office showing that the rela-tors are the owners of the oil, gas, and other minerals in the land and that the sale by the state was without reservation of minerals.

The further allegations are made in the petition that the land has never been examined and designated as mineral by the geological and mineralogical survey and that at the time the attempted mineral classifications of November 30, 1901, and January 3, 1907, were made by the commissioner they were made without his having examined or inspected, or caused the land to be examined or inspected, for the purpose of determining whether or not it was mineral land, and that, when the land was sold by the state to Gibson, it was not known to be mineral land or mineral bearing.

After due consideration we have concluded to refuse leave to file relators’ petition.

In so far as relators base their right to the award of the mandamus on their attack on the validity of classifications of the section of land as mineral by the commissioner of the general land office on November 30, 1901, and January 3, 1907, no more need be said than to refer to the opinions of this court recently delivered by Special Chief Justice Brooks in the case of Johnson v. Robison, Commissioner (Tex. Sup.) 240 S. W. 300, and by Associate Justice Pierson in the case of Clements v. Robison, Commissioner (Tex. Sup.) 239 S. W. 902. These opinions are decisive in maintaining the'validity of these classifications as against relators’ attack.

Relators’ principal contention is that their vendor, Fred Gibson, became the purchaser of this land under its classification by the land commissioner as dry grazing land on 'the 4th day of January, 1907. There would be much force in this contention, supported by the land commissioner’s letter of January 4, 1907, together with the transmission of a copy thereof to the county clerk, were it not for the fact that the land commissioner’s acts as a whole created uncertainty as to his real intention with respect to the classification of this land as “dry grazing and mineral” or as “dry grazing” alone at the time Gibson forwarded his application, and Gibson himself then construed the commissioner’s classification of the land as “dry grazing and mineral.” We do not think that Gibson or his assignees could thereafter in good conscience assert that they purchased the land under any other classification. The fact that Gibson intended and agreed to buy the land under its mineral classification is made plain by the affidavit which accompanied his application. The affidavit is to the effect that the land had been classed as mineral land; that he waived all rights to the minerals; and that, in the event of a sale of the land to him, he expressly agreed that he should acquire no right, title, or interest in or to any minerals then or thereafter known or found in or on the land. This affidavit seems to have been made under article 3495 in title 71, of the Revised Statutes of 1895, which provided that, when application was made to buy any of the public school, university, asylum, or public lands containing valuable mineral deposits—

“except where the application is made under this title, the applicant shall make oath that there is not, to the best of his knowledge and belief, any of the mineral embraced in this title thereon, and when the commissioner has any doubt in relation to the matter he shall forbear action until he is satisfied. 'And any sale or disposition of said lands shall be understood to be with a reservation of the mineral thereon to be subject to location as- herein provided.”

The land commissioner treated the application, together with the affidavit, as relating to land under mineral classification, as shown by the indorsement on the application, and by the issuance of the oil and gas permit.

With both the applicant and the land commissioner dealing with the land at the date of, and subsequent to, the application, as under a mineral classification, and as subject to the terms of article 3495 the minerals must be considered as reserved by the state. It follows that the oil and gas permit was not invalid, and hence we refuse the motion for permission to file the petition for mandamus.

OURETON, O. J., took no part in this decision. 
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