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 inthe process of selling his 1200-acre ranch and the surveyor had determined that, while a survey of aportion ofthe 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 inthe survey. After the excess acreage had been appraised and a report presented tothe School Land Board, the applicant appeared before the Board and asked the Board to permit him to purchase: his fractional part ofthe excess.

You further advise that the School Land Board has never permitted an applicant to purchase afractional part ofthe excess acreage incases 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., topermit the applicant topurchase his proportionate part ofthe excess acreage and to issue a deed of acquittance covering that acreage.

Article 5421c-1, V. T..C. S., provides:

p. 623The Honorable Bob Armstrong. page 2 (H-129)

“In all cases where the area of atract ofland 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 inatitled or patented survey inwhich excess acreage exists who desires to pay for such excess acreage, shall file with the Land Commissioner a request for an appraisement ofthe land with corrected field notes inthe form now provided by law, together with astatement ofthe facts pertaining to his right to purchase, which statement shall be sworn to, and such other evidence ofhis 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 ofthe law, then the Commissioner shall execute a deed of acquittance covertig such land inthe name ofthe original patentee or his assignees with such reservation ofminerals or with nomineral reservation, accordingly as may have been the case when the survey was titled or patented. Such transfer shall inure distributively to,the benefit ofthe true and lawful owners ofthe survey inproportion to their holdings. ” The legislative intent inthe enactment ofthe quoted statute is not entirely free of question. The statute refers to “excess” interms of the entire survey or patented area. The phrase “any person owning any interest inatitled or patented survey” indicates that the LegiEilature contem-
., plated ownership ofless than the ‘en$ire area, but in $iscussing the payment for such excess and the “deed of acquittance cov er.ing the land” the Legislature speaks interms ofthe entire excess.

The last sentence inthe **statute** that, “Such transfer shall inure distributively to the benefit of the true and lawful owners ofthe survey in proportion to their holdings, I’strongly indicates that the Legislature inp. 624The Honorable Bob Armstrong, page 3 (H-129)

tended that the School Land Board issue one deed covering the entire excess and leave questions oftitle and equity to the respective owners.

InFoster 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 adeed of acquittance by an owner ofland containing excess acreage “inured to the benefit ofthe owners, whoever they may be. ” (260 S.W. 2d at 108).

We feel that, hadthe Legislature intended that the School Land Board b:einthe position of deciding questions oftitle and equity with reference to patented lands with excess acreage, itwould have expressly so provided in the statute. Inthe absence of such an express provision, it is our opinion that a sale of only apart of excessive acreage would not conform to the provisions ofArticle 5421c-1. V. T. C. S. SUMMARY The owner of title to afractional interest in apatented survey less thati total is not entitled to purchase only his proportionate share of the excess acreage inthe survey. under Article 5421c-1, XT. C.S. Xery truly yours, ,~
JOHN L. HILL

‘J Attorney General of Texas

Opinion Committee

p. 625