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




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