8 

THE ATTO 

OF TEXAS 

The Honorable Bob Armstrong 

Land Commissioner 

General Land Office 

Austin, Texas 78701 

Opinion No. H- 129 

Re: The purchase of 

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 proportionate part of the excess acreage and to issue a deed of acquittance covering 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 Commissioner 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 execute 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 reservation, 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 interest in a titled or patented survey” indicates that the LegiEilature contem- 

., 

plated ownership of less than the ‘en$ire area, but in $iscussing the payment 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 inp. 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 containing 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