not mineral lands, and because of this discussion in the opinion, the Colquitt-Tigner case has been considered an authority holding that the Commissioner is empowered to classify or designate public school and asylum land as mineral land. What the case in fact holds is that public school and asylum land may be within the terms of the Mineral Act of 1895 and mineral rights may be acquired in the land under that Act, even though it has not been formally designated as such for the mineralogical and geological survey, it being within the authority of the Commissioner to determine from information obtained otherwise than from such survey whether or not the land is mineral for the purpose of disposition under the mineral law. Although the question was not directly before the Court whether the Commissioner for the purpose of sales under the Sales Act was authorized to class or designate public school and asylum land as mineral land, with the result that the minerals would be reserved to the State in the event of sale, the reasoning in the opinion tends strongly to indicate, and indeed is practically convincing, that he has such authority. This is especially true of that part of the opinion to the effect that the Commissioner, being charged with the duty of disposing of the land under the two laws, must determine in some way the character of the land, as mineral or not, in order to know which law is to govern his action.

It is true that a purpose is disclosed by Article 3498b of the Mineral Law of 1895 that the geological and mineralogical survey shall examine all the public lands and designate, for the purposes of the law, such tracts as are apparently mineral bearing. Such survey was first authorized to be made in the year 1888 under the direction of the Commissioner of Agriculture, Insurance, Statistics and History (Acts First Special Session, Twentieth Legislature, p. 10; 9 Gammel's Laws, p. 1008). An appropriation of $15,000.00 was made for that purpose. Attention was called in the opinion of the Colquitt-Tigner case to the fact that the Legislature, which passed the Mineral Act of 1895, at the same session refused to make an appropriation for the continuation of the mineralogical and geological survey. Later, in the year 1901, an act was passed directing the Board of

Regents of the University to make a mineral survey of all the lands belonging to the public schools, the university and asylums, and an appropriation of $10,000.00 was made for that purpose. (Acts, Regular Session, Twenty-seventh Legislature, p. 32.) Some work was done under both of these Acts, but it covered comparatively very little territory, and inquiry at the Land Office discloses the fact that from these surveys no data or information has come into that office in any way adequate for the designation of the public lands of the State as mineral or non-mineral. Because there has been no adequate mineralogical and geological survey, and acting under the authority of the Colquitt-Tigner case, or under the reasoning of the opinion in that case, it has been the practice of the Commissioner of the Land Office for many years, upon information obtained from any available sources, to designate certain of the public school and asylum lands as mineral. The practice has been to treat and make this designation as a part of the classification of the lands, although strictly speaking it is not a classification, because statutory authority is given to classify these lands only as agricultural, grazing or timbered lands. (R. S. 1911, article 5407.) In the opinion in the Schendell case (94 Tex. p. 595) attention is called to the fact that no "class" as mineral land is recognized by the law, but that it is contemplated that lands which have been classified as agricultural, pasture or timbered lands, and are found to be apparently mineral bearing, shall be designated as mineral lands. The distinction between technical classification as agricultural, grazing or timbered lands and designation as mineral lands may become important. For example, notification to the county clerk is essential to the completion of a classification (Article 5407, R. S. 1911), but it may very well be doubted whether it is essential that the county clerk be notified of the designation of the land as mineral.

The statutes may be searched in vain for any express authority on the part of the Commissioner of the Land Office to designate lands as mineral, so that when disposed of under the Sales Act the minerals are reserved to the State. Such authority rests upon implication, along the line of reasoning contained in the Colquitt-Tigner case, and upon departmental construction and practice. It seems to

have been assumed by the Legislature in the enactment of Section 6f of the Sales Act of 1907 (Article 5433, R. S. 1911), providing that land classed as mineral might be sold for agricultural or grazing purposes but that such sales should be with reservation of the minerals, that the Commissioner of the Land Office had the authority to class lands as mineral. In the case of Camp vs. Smith (166 S. W. 22), in which application for writ of error was refused, it seems to have been assumed by the Court of Civil Appeals that the Commissioner has authority to class lands as mineral and that when the land is so classed the minerals are reserved to the State. Some lawyers seriously question the existence of such authority and take the position that when land has been so classed and sold the purchaser has acquired all of the minerals as well as the surface, because of a lack of power on the part of the Commissioner to designate the land as mineral. It seems more than likely, however, that the authority may be sustained, by reason of the decisions above referred to, and on account of long continued departmental practice.

To sum up, as a result of the Schendell case, the Colquitt-Tigner case and the statutes above referred to, the rule seems to be, as to all sales of public school and asylum land from 1895 to the present time (not made under the Mineral Act of 1895) that when the Commissioner of the Land Office before the sale formally classed, or designated, the land as mineral, the minerals were in the sale reserved to the State, but when the land at the time of the sale had not been formally classed, or designated, as mineral and the purchaser did not know that it contained valuable minerals, the purchaser acquired the minerals as well as the surface. It may be, as suggested in the Schendell case, that when the purchaser knows at the time that the land contains valuable minerals, although it has not been so classed, the State could set aside the sale as against such original purchaser, but it seems that as against subsequent innocent purchasers, relying upon the absence of a formal mineral designation, the sale could not be set aside.

It is essential, therefore, in order to ascertain whether the State in the sale of a tract of public school land or asylum land since 1895 reserved the minerals, to examine the

records of the General Land Office and ascertain whether at the time of the sale the land was formally classed or designated as mineral. Such information may generally be obtained from the sales register, but for the sake of accuracy it should be sought in the classification records. Recitals in the application for the purchase of the land as to mineral classification or as to waiver of the minerals are not controlling, for whether these matters are correctly reflected by the application or not, it is the operation of the law and not the language of the application that reserves the minerals to the State in lands classed as mineral. Nor, in determining the ownership of the minerals, can complete reliance be placed in the recitals in the patent, when the land has been patented, for until about the year 1911 it was the practice of the Land Office, even where the minerals had been reserved to the State in the sale, to issue patents containing no reference to the minerals but in the usual form granting and releasing to the patentee all of the State's interest in the land. Such patent, however, could not enlarge the rights acquired by the purchase or deprive the State of the minerals which it had reserved in the sale, because it has been uniformly held that the issuance of a patent is a ministerial act and that its issuance contrary to law cannot prevent even an individual from enforcing against the patentee, or one holding under him, a right existing prior to the issuance of a patent. See: Kempner vs. State (72 S. W. 888); Day Land and Cattle Company vs. State (68 Tex. 526, 4 S. W. 865); Dunn vs. Wing (103 Tex. 393, 128 S. W. 108); Kirby vs. Conn (109 Tex. 540, 212 S. W. 469). If an individual can enforce such existing right against a patent, it certainly cannot be true that a patent, making no reference to reservation of minerals, can deprive the State of its right to the minerals reserved when the sale was made. Since 1911, and especially since the case of Cox vs. Robison was decided (November 27, 1912, 105 Tex. 426), it has been the practice in the General Land Office, in the issuance of patents to school and asylum land, which were sold with reservation of the minerals, to insert in the patent a clause showing such reservation.

II. LAWS UNDER WHICH OIL AND GAS RIGHTS ARE ACQUIRED.

(1) THE RELINQUISHMENT ACT OF 1919.

The foregoing tedious discussion of the reservation of the minerals in the sales of school land would have been unnecessary, had the Act of 1919 (Acts, Second Called Session, Thirty-cixth Legislature, p. 249) been a full and unconditional release of the minerals to the land owners, but because, as has been noted, it is but a partial and conditional relinquishment, it is necessary, in order to know where the right to the oil and gas in a particular tract of surveyed school or asylum land lies, to ascertain whether the land was sold with or without reservation of minerals in the State. If it was sold without reservation of the minerals, the right to the oil and gas is in the land owner, and he is, of course, at liberty to dispose of such right upon any terms and conditions that may be agreed upon. But if the land was sold by the State with reservation of the minerals and no one fixed a right to the oil and gas under the law in effect prior to the time when the 1919 Act went into effect (October 21, 1919), then the land comes within the terms of the 1919 relinquishment Act. By its terms it releases to the owner of surveyed school and asylum land heretofore or hereafter sold with reservation of the minerals, an undivided fifteen-sixteenths interest in all oil and gas in the land and makes such land owner the agent of the State for the purpose of selling or leasing the oil and gas on such terms and conditions as the owner may deem best, provided the lessee or purchaser must in every instance pay to the State ten cents per acre and in case of production the undivided one-sixteenth of the value of the oil and gas. The Act requires the land owner, lessee or other person in charge, to protect the land by drilling offset wells under penalty of termination and reversion to the school fund of the relinquishment granted by the Act. Similar termination is provided for in the event of the failure of any person operating under the Act to pay the royalty or other money due the State, it being provided, however, that the interest of the owner of the soil in the oil and gas shall not on that account be forfeited. In the event of the termination of the relinquishment or of the rights of the per