Caples v. ColeCaples v. Cole
- Reporters:
- Before:
- Sharp
In оur original opinion we held that that part of subdivision 4 of article 5329, Vernon’s Annotated Texаs Civil Statutes, which reads, “no sale made without сondition of settlement shall be questioned by thе State or any person after one year from the date of such sale,” controls this case.
Cole acquired this land from the State at a price of $12.50 per acrе, and it was treated for the purposes of the sale .as surveyed school land. The sale was made without condition of settlemеnt. Section 2 of H.B. No. 358, Acts 1931, c. 271 (Vernon’s Ann. Civ.St. art. 5421c, § 2), рrovides how all surveyed school land may be sold under said act, but also provides “that all such land within five miles of a well producing oil оr gas in commercial quantities shall be subject to lease only, and the surface rights shall nоt be sold.” The agreed statement “that said land was within five miles of a producing oil well” is all the testimony upon this question, contained in the rеcord. Therefore, it is not shown indisputably that thе land commissioner was not called upоn to determine an issue of fact and to exercise his judgment and discretion in making the salе. Under such state of facts that provision оf subdivision 4, supra, would apply.
We do hold, however, that all sales of public school lаnd must he authorized by law. As to any sale of publiс school land neither authorized by law nor mаde under color of law, the one-yeаr statute of limitation above cited would not apply. Kirby v. Conn, 109 Tex. 540, 212 S.W. 469; Id. (Tex.Civ.App.) 156 S.W. 232; Rainer v. Durrill (Tex.Civ.App.) 156 S.W. 589 (writ refused).
Part of section 5 of H.B. No. 358 (Vеrnon’s Ann.Civ.St. art. 5421c, § 5) reads as follows: “Any headright survey, homestead donation, pre-emption survеy, scrip survey or other survey heretoforе awarded or sold, which survey has been held and claimed in good faith by any party for a period of ten years prior tq the date of application for patent and which surveys cannot be patented under existing laws, may be patented on payment of One Dollar ($1.00) an acre to the Land Commissioner.”
The facts of this case do not bring beforе us for construction the foregoing provisions of section 5, and therefore we are not called *4upon to hold that land desсribed therein cannot be acquired by purchase if it is situated within five miles of a producing oil or gas well. Upon that question we express no opinion herein.
With the foregoing statements, plaintiff in error’s motion for rehearing is overruled.