Untitled Texas Attorney General Opinion ( 1973 )

8
THE ATTO
OF TEXAS
The Honorable Bob Armstrong Opinion No. H- 129
Land Commissioner
General Land Office Re: The purchase of
Austin, Texas 78701 excess acreage under
Article 54211~
Dear Mr. Armstrong:
You have asked this office for an opinion concerning the following
fact situation: On February 14, 1973, an individual made application to
purchase excess acreage under the provisions of Article 5421-c, V.T.C.S.
At the time of making this application the applicant was in the process of
selling his 1200-acre ranch and the surveyor had determined that, while
a survey of a portion of the ranch was patented for 320 acres, it contained
775.49 acres. The applicant owns 59/100ths of the acreage. There are
two other owners involved.
Your department’s personnel have concluded that there are 455. 59
acres of excess acreage in the survey. After the excess acreage had
been appraised and a report presented to the School Land Board, the
applicant appeared before the Board and asked the Board to permit him
to purchase: his fractional part of the excess.
You further advise that the School Land Board has never permitted
an applicant to purchase a fractional part of the excess acreage in cases
where he did not own all the acreage within the patented survey. You have
asked that we advise the School Land Board whether it has the right under
Article 5421c-1, V. T. C. S., to permit the applicant to purchase his propor-
tionate part of the excess acreage and to issue a deed of acquittance cover-
ing that acreage.
Article 5421c-1, V. T..C. S., provides:
p. 623
The Honorable Bob Armstrong. page 2 (H-129)
“In all cases where the area of a tract of land
titled or patented exceeds the quantity called for in
the title or patent, and where under the existing law
the title to all or any part thereof shall or may be
affected by the existence of such excess, then any
person owning such survey or having an interest therein
may pay for such excess acreage, at such price as the
empowered authority may fix. Any person owning any
interest in a titled or patented survey in which excess
acreage exists who desires to pay for such excess
acreage, shall file with the Land Commissioner a
request for an appraisement of the land with corrected
field notes in the form now provided by law, together
with a statement of the facts pertaining to his right to
purchase, which statement shall be sworn to, and such
other evidence of his right to purchase as the Commis-
sioner may require. Should it appear that such excess
actually exists and that the applicant is entitled to the
benefits of the law, then the Commissioner shall exe-
cute a deed of acquittance covertig such land in the
name of the original patentee or his assignees with
such reservation of minerals or with no mineral reser-
vation, accordingly as may have been the case when
the survey was titled or patented. Such transfer shall
inure distributively to ,the benefit of the true and lawful
owners of the survey in proportion to their holdings. ”
The legislative intent in the enactment of the quoted statute is not
entirely free of question. The statute refers to “excess” in terms of the
entire survey or patented area. The phrase “any person owning any inter-
est in a titled or patented survey” indicates that the LegiEilature contem-
.,
plated ownership of less than the ‘en$ire area, but in $iscussing the pay-
ment for such excess and the “deed of acquittance c ov er.ing the land” the
Legislature speaks in terms of the entire excess.
The last sentence in the statute that, “Such transfer shall inure
distributively to the benefit of the true and lawful owners of the survey in
proportion to their holdings, I’ strongly indicates that the Legislature in-
p. 624
The Honorable Bob Armstrong, page 3 (H-129)
tended that the School Land Board issue one deed covering the entire
excess and leave questions of title and equity to the respective owners.
In Foster v. Duval County Ranch Company. 260 S.W. 2d 103 (Tex.
Civ. App., San Antonio, 1953, error ref’d. , n. r. e. ), the court stated
that the acceptance of a deed of acquittance by an owner of land contain-
ing excess acreage “inured to the benefit of the owners, whoever they
may be. ” (260 S.W. 2d at 108).
We feel that, hadthe Legislature intended that the School Land
Board b:e in the position of deciding questions of title and equity with
reference to patented lands with excess acreage, it would have expressly
so provided in the statute. In the absence of such an express provision,
it is our opinion that a sale of only a part of excessive acreage would not
conform to the provisions of Article 5421c-1. V. T. C. S.
SUMMARY
The owner of title to a fractional interest in
a patented survey less thati total is not entitled to
purchase only his proportionate share of the excess
acreage in the survey. under Article 5421c-1, XT. C. S.
Xery truly yours, ,~
JOHN L. HILL
‘J Attorney General of Texas
Opinion Committee
p. 625