## 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'"duringthe time In which these lands stood forfeited" for nonpayment of Interest and, if the State is entitled to the 011, 'theportion of such 011which shouldbe demanded from the operators of the producing wells situated on the tracts of land" forfeited.

The certificateof facts accompanyingyour request reflects that the land In questionwas orlglnally sold under a "wateredgrazing classificationand forfeited for nonpayment of Interest **by** the Commlssloner of the General Land Office on April 17, 1943. Subsequently, and during the period of forfeiture,an 011 and gas leasewas executedwithout State approval, and productionwas obtained.

'It Is well settled that a forfeiture of land by the'land commissionerfor nonpayment of Interest "restoresthe 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 Production 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.** 

. ..- * * 1.1 of reinstatement :haseTArt. 5326a,V.C.S.) i Art. 5326, V.C.S.) or repur**C** Is not a title."Wilson v. Cone 179 S.W.2d 784 (Tex.Clv.App.1944); Mac ET'114 S.W.2d 120 (!h?X.Clv.ADD. 1940): : :Raev. MacRic ~~ ~..~~~ Boyklnv.Southwest Texas 011 &-Gas‘Co., sup~h) liobtk 011. Co. of Texas v. Reese-CorrlherLumber Co %rlght, suprz -~-., supra; Lawless v.Hon. Bascom Glles, Commissioner,Page 2, V-1134.

In Boykln v. SouthwestTexas 011 & Gas Co., court said: supra, the
"Under that article ,&t. 5423,R.C.S. 1911, now Art. 5326, V.C.S,-/ the act of the land commlssloner In forfeiting thepurchase of land has the effect of restoring the land to the public domain of the state. The provision that 'thepurchasers, 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 personsmay have Intervened' In no way weakens or affects the proposition that a forfeiturerestores 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 (writof 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 'ownerof such land at the date of forfeiture*** shall have the right for a period of ninety days after notice of classlflcatlonand appraisement of his land *+* to repurchase' It, 'Inno way weakens or affects the proposition that forfeiturerestores the land to the public domain and reinvests the title In the state.'... "

.... "The statute In terms gives the previous owner only the preferenceright 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 forfeitureuntil 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 forfeiture and before reinstatement or repurchase, the taking of minerals from the land during this periodwithout authority from the State fs actionableunder Article 5325, V.C.S.,which provides:Non. Bascom Qlles, Commissioner, Page 3, V-1134.

"Ifany personwho 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 collected 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 thereforeadvised that a demand should be made upon the operators of producingwells situated on the tracts of land forfeited for an amount of money equal to the value of the minerals removed without the State's authorizationduring the period of forfeiture.

SUMMARY

Upon forfeiture for nonpayment of Interestby the Commissioner of the General Land Office of "watered grazing" classified land, the title reverts to the State. Persons taking minerals from the land during the period of forfeitureunder a lease executedduring such period without authority from theState are liable to the State for the value of the minerals taken.
Yours very truly,
APPROVED:
H. D. Pruett, Jr. Land Division PRICE DANIEL Attorney General

Charles D. Mathews First Assistant JPL:pwb