Untitled Texas Attorney General Opinion

TMEATTORNEYGENERAL
OFTEXAS
December 19, 1950
Hon. Bascom Qiles, Conunlssloner
General Land Office
Austin, Texas Oplnlon~No. V-1134.
Re: Right of the State to
recover for minerals
taken from forfeited
Dear Sir: school lands.
You have requested an opinion as to whether
the State Is entitled to the 011 produced on school
1ands'"during the time In which these lands stood for-
feited" for nonpayment of Interest and, if the State is
entitled to the 011, 'the portion of such 011 which
should be demanded from the operators of the producing
wells situated on the tracts of land" forfeited.
The certificate of facts accompanying your
request reflects that the land In question was orlgln-
ally sold under a "watered grazing classification and
forfeited for nonpayment of Interest by the Commlsslon-
er of the General Land Office on April 17, 1943. Sub-
sequently, and during the period of forfeiture, an 011
and gas lease was executed without State approval, and
production was obtained.
' It Is well settled that a forfeiture of land
by the'land commissioner for nonpayment of Interest
"restores the land to the public domain and reinvests
the title in the state." BoykIn v. Southwest Texas 011
& Gas co.. 256 S.W. 581 (Tex.COIIUQ.ADD. 1923): Lawless
V. Wright; 86 S.W. 1639 (Tex.Cly.App: lg&jJj~Gulf Pro-
duction c'o.v. State, 231 S.W. 124 (Tex.Clv.App. lg2I
'error Oil Co. of Texas v. Reese-Corrlhdr
Lumber Co., 18KKiYFs.w. 115).
The rr,c~ht. of reinstatement Art. 5326, V.C.S.) or repur-
. ..- * * 1.1
C:hase TArt. 5326a, V.C.S.) iIs not a title." Wilson v.
Cone 179 S.W.2d 784 (Tex.Clv.App. 1944); Mac:Rae v. Mac-
RicET'114 Boykln v. South-
S.W.2d 120 (!h?X.Clv.ADD.1940): :
~~ ~..~~~
west Texas 011 &-Gas ‘Co., sup~h) liobtk 011.Co. of
Texas v. Reese-Corrlher Lumber -~-.,
Co supra; Lawless v.
%rlght, suprz
Hon. Bascom Glles, Commissioner, Page 2, V-1134.
In Boykln v. Southwest Texas 011 & Gas Co.,
supra, the court said:
"Under that article ,&t. 5423, R.C.S.
1911, now Art. 5326, V.C.S,-/the act of the
land commlssloner In forfeiting the purchase
of land has the effect of restoring the land
to the public domain of the state. The pro-
vision that 'the purchasers, or their vendees,
may have their claims reinstated on their
written request, by paying Into the treasury
the full amount of Interest due on such claim
‘UP to the date of reinstatement, provided that
no rights of third persons may have Intervened'
In no way weakens or affects the proposition
that a forfeiture restores the land to the
public domain and reinvests the title in the
state. Lawless v. Wright, 39 Tex.Clv.App. 26,
86 S.W. 1039 (writ of error refused); Jones v.
Roblson, 104 Tex. 70, 133 S.W. 879. Likewise,
we think the provision In chapter 160 of the
Ac.tsof the Thirty-Third Legislature that the
'owner of such land at the date of forfeiture***
shall have the right for a period of ninety
days after notice of classlflcatlon and ap-
praisement of his land *+* to repurchase' It,
'In no way weakens or affects the proposition
that forfeiture restores the land to the pub-
lic domain and reinvests the title In the
state.'...
"....
"The statute In terms gives the previous
owner only the preference right to repurchase
the land. It gives him no right In the land.
It gives him a right, In preference to others,
to acquire rights in the land--the title. From
the date of forfeiture until the date of the
reaward of the land to him by the state, the
ownership Is out of him and not In him. It IS
In the state." (256 S.W. at 582-583)
Since the land belongs to the State after for-
feiture and before reinstatement or repurchase, the tak-
ing of minerals from the land during this period without
authority from the State fs actionable under Article
5325, V.C.S., which provides:
Non. Bascom Qlles, Commissioner, Page 3, V-1134.
"If any person who has no authority or
right to do so ... removes any mineral ...
from the school land belonging to the public
free school fund, judgment shall be rendered
against the defendant In behalf of the State
In a sum of money equal to the value of the
substance so ... removed, which shall be col-
lected as under execution; and when collected,
the money shall be remitted to the State
Treasurer, and by him credited to the fund to
which the land belongs."
You are therefore advised that a demand should
be made upon the operators of producing wells situated
on the tracts of land forfeited for an amount of money
equal to the value of the minerals removed without the
State's authorization during the period of forfeiture.
SUMMARY
Upon forfeiture for nonpayment
of Interest by the Commissioner of
the General Land Office of "watered
grazing" classified land, the title
reverts to the State. Persons tak-
ing minerals from the land during
the period of forfeiture under a
lease executed during such period
without authority from the State are
liable to the State for the value of
the minerals taken.
Yours very truly,
APPROVED: PRICE DANIEL
Attorney General
H. D. Pruett, Jr.
Land Division
Charles D. Mathews
First Assistant
JPL:pwb