Blevins v. Terrell, Commissioner , 96 Tex. 411 ( 1903 )

Relator filed his petition in this court against Charles Rogan, Commissioner of the General Land Office, and A.S. Gage, praying for a writ of mandamus against the Commissioner of the Land Office for the purposes as set out in the petition. Rogan's term of office having expired, Terrell was elected to succeed him and qualified according to law, after which he was made party defendant to the proceeding.

The petition alleges, in substance, that on the 11th day of June, 1902, he was an actual settler in good faith on section No. 2, block No. 347, certificate No. 33650, Gulf, Colorado Santa Fe Railway Company original grantee, situated in Brewster County, Texas, and on the said day the said relator filed with the county clerk of the said county his application to purchase the said section for a home, complying in all respects with the requirements of the law in making the application and the affidavit, making the first payment upon the land and executing his obligation. On the same day relator filed his applications to purchase as additional lands to his home section each of the following described sections of land, situated in the same county, and each being within a radius of five miles from the first described section, to wit: section No. 2, in block No. 9, certificate No. 1-689, Galveston, Harrisburg San Antonio Railway Company original grantee, and section No. 4, in block No. 347, certificate No. 3366, Gulf, Colorado Santa Fe Railway Company original grantee. In making the applications for the last named sections the relator complied in all respects with the law; and on the 13th day of June, 1902, the said clerk of the County Court of Brewster County filed the applications and the several obligations with the Commissioner of the General Land Office, and deposited with the Treasurer of the State of Texas the one-fortieth part of the price of each section paid by relator thereon, and on the same day the Commissioner of the Land Office approved each of the said applications and awarded each of the said sections of land to the relator as purchaser thereof. Each of the said sections of land belonged to the public free school fund, and, prior to the making of said applications, had been classified as dry grazing land and appraised at $1 per acre, and at the same time the applications were made each of said sections was duly on the market for sale under the laws of this State.

After he had accepted relator's applications and awarded the lands to him, the Commissioner of the Land Office canceled and set aside the award and contract made for the purchase of section No. 2, block No. 347, upon the ground that the land was, at the time the application was made, under a valid lease to A.S. Gage, which lease was then in full force and in good standing. On September 24, 1892, the Commissioner of the General Land Office leased section No. 2, block No. 347, and other lands, to T.F. Swann, for five years, and while the said lease was in force, to wit, August 1, 1896, Swan transferred all of his interest in the said lands under the lease to A.S. Gage. The Commissioner of the Land Office, on August 17, 1896, canceled the said lease by consent of Gage, and on the same day executed to the said Gage a new lease for section No. 2, block No. 347, for ten years from the first day of August, 1896, and afterwards, to wit, on February 28, 1900, Charles Rogan, then Commissioner of the General Land Office, canceled the lease made to A.S. Gage and leased the said section of land to him for ten years from the second day of February, 1900. Relator charges that both of the leases made to Gage were void and made for the purpose of giving him control of the land for greater period of time than was permitted by law. The petition prayed that the writ of mandamus issue against the Commissioner of the Land Office requiring him to reinstate the application, award and the contract of the relator for the said section No. 2, block No. 347.

Terrell, as Commissioner of the Land Office, and A.S. Gage, as co-respondent, answered by general demurrer and also by answer admitting the facts as stated in the petition to be true except in so far as they charged upon the respondents an intention to violate the law in making the said leases. It was alleged in the answer that the first lease was made to Gage in conformity to the previous customs and rulings of the Commissioners of the Land Office, and that the second lease was made in compliance with the decision of this court.

The lease made to Gage on the 17th day of August, 1896, was void, because the Commissioner had no power to cancel the existing lease which was in good standing and at the same time to execute another to him. Ketner v. Rogan, 95 Tex. 559. If the lease which had been made to Swann and assigned to Gage was not canceled by the transaction between Gage and the Commissioner of the General Land Office, it expired on the 24th day of September, 1897, and the land was on the market for sale or lease from that time until it was leased to Gage on the 28th day of February, 1900, at which time there was no obstacle to making a valid lease to Gage. By the execution of the lease of February 28, 1900, the land was withdrawn from sale during the continuance of that lease, and at the time relator made his application it was not on the market; hence, he acquired no right by his application, nor by his settlement upon the land. It is unnecessary to discuss the motive which may have prompted the Commissioner of the Land Office to make the last lease to Gage, for, while there are no facts charged which show an improper motive, yet, if it were true as charged, it could not affect the relator, because he had no right in the land, and the act of leasing being lawful and done in a lawful manner vested the right of a lessee in Gage during the term for which it was made.

The writ of mandamus will be refused in this case, and all cost of this proceeding will be taxed against the relator.

Refused.