
    (110 Tex. 1)
    SIBLEY v. ROBISON, Com’r of General Land Office, et al.
    (No. 3186.)
    (Supreme Court of Texas.
    June 11, 1919.)
    Mines and Minerals <@=>6 — Permit to Prospect for Oil and Gas — “Surveyed Land.”
    Under Acts 33d Leg. c. 173, as to permits to prospect for oil and gas upon public lands, where a certain area had been lawfully surveyed in virtue of an application made under the act, but upon which no permit issued, the field hotes being approved .by the commissioner and filed in the land office, the commissioner was authorized to treat the area, as respects a later application, as “surveyed land” within the meaning of the act.
    Original proceeding for mandamus by J. D. Sibley against J. T. Robison, Commissioner of the General Land Office, and others.
    Writ refused.
    ■ McMeans, Garrison & Pollard, of Houston, for plaintiff.
    W. W. Searcy, of Brenham, and M. Hirsch and Allan Hannay, both of Houston, for W. J. Fox.
    Carden, Starling, Carden, Hemphill & Wallace, of Dallas, for W. C. Wolff and C. D, Keen.
    E. E. Townes and G. P. Dougherty, both of Houston, for Humble Oil & Ref. Co.
    C. M. Cureton, Atty. Gen.,' and W. F. Schenck, Asst. .atty. Gen., for J. T. Robison.
   PHILLIPS, O. J.

The relator seeks a mandamus to compel the Land Commissioner to issue him a permit under the Act of 1913 (Chapter 173, General Laws of 1913) to prospect for oil and gas upon submerged land belonging to the State in Tabb’s Bay in Harris County. The relator’s application for the permit was refused by the Commissioner because of an outstanding similar permit covering the same area, issued under the Act of 1913 originally to W. J. Eox. If the permit .issued to Fox was valid, the relator is not entitled to a permit. It is contended that the Fox permit is invalid because of its being based upon an application not filed in accordance with the law. Fox, m making his application, treated the area as “surveyed land,” within the meaning of the Act of 1913, and filed his application with the county clerk of Harris County. This was proper, if the area was then “surveyed land” within the intendment of the act. Some time prior to the filing of Fox’s application, the area had been duly and lawfully surveyed in virtue of a previous application made under the act but upon which no permit issued, the field notes being approved by the Commissioner and filed in the Land Office. As the area had been once lawfully surveyed and its field notes were duly on file in his office, the Commissioner treated it as “surveyed land” within the meaning of the act, and accordingly recognized Fox’s application as valid and issued him the permit. Upon the advice of the Attorney General, this construction of the act has governed the Land Office for a number of years.

While the act directs that an application for a permit to prospect in any of the State’s bays, lakes, etc., shall be filed with the county surveyor of the county, the only purpose of the requirement is the ascertainment of the area for which the permit is sought by a proper survey. Upon the filing of such an application, it is accordingly the duty of the county surveyor, under the act, to make the survey and deliver the field notes to the applicant for filing in the Land Office. Where the area has been thus duly surveyed and the survey approved by the Commissioner and filed in his office, there could be no reason for having it resurveyed for the purpose of a subsequent permit. The Legislature is not to be credited with an intention to impose any such useless procedure. With such a survey once made, the area becomes “surveyed land” within the meaning of the act. Such is its status because it has been “surveyed” in the manner provided by law. This is .the common-sense construction of the act, and such, therefore, as should be given it.

The mandamus is refused.

Associate Justice HAWKINS will later file a statement of his views. 
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