The mineral resources of Texas are varied and rich and since so much of the land in which minerals have been found belonged at one time to the school fund, and since there is left so much unsold mineral land whose mineral rights have been reserved by the state, the history of the disposition of these lands is one of interest and importance.

Under the laws of Spain and Mexico all mines belonged to the sovereign. The Republic of Texas by the act of June 3, 1837, provided against the location of any land grants on mineral land, and in the act of January 20, 1840, adopting the Common Law and repealing certain Mexican laws, the laws relating to the retention by the state of mines and minerals were excepted from repeal. In the case of Cowan v. Hardeman, decided in 1862, the supreme court upheld the right of the state to minerals in the soil.2

In 1866 a change of policy was adopted when by an ordinance of the constitutional convention the state released to the owner of the soil any minerals in the soil. This was readopted in the constitutions of 1869 and 1876. This provision in the Constitution of 1876 reads: "The State of Texas hereby releases to the owner or owners of the soil all mines and minerals that may be on the same, subject to taxation as other property."1 This clause was construed in 1912 to effect a release of minerals in only the land with which the state had parted ownership prior to the adoption of the Constitution of 1876.2

1 Land Office Report, 1901-2, p. 21. 226 Tex., 217.

Until 1883 nothing was done by the state in the way of conserving the mineral resources of the state or of promoting their development; the mineral lands were classified and valued only as agricultural or grazing lands, and were disposed of under such false classification.3 But in 1883 there appeared for the first time in the land sale acts a clause which reserved to the fund to which the land belonged the minerals which were found in such lands.4 The act of 1883 did not provide for the sale of mineral lands as such but provided only for the sale of the minerals.5 It was enacted that the fund to which the land belonged should receive a royalty of five per cent of the gross receipts from the operation of the mine. Only $12.25 was received from this royalty up to the year 1887.6

The law of 1883 was thus practically inoperative, and the whole situation with respect to the mineral lands was badly in need of change. Prospectors felt insecure as against the owners of the land so long as the release clause of the constitution was unconstrued; there was need of a mineral survey of the public lands in order that the mineral lands might be known and classi-fied as such, and need of a provision either for their sale or for their withdrawal from the market.7

The administration of the mineral lands during the years 1883-1895 was especially full of blunders. In 1887 a new land sale act was passed and the Land Board which had been established in 1883 was abolished, but the omission in the act of any reference to mineral lands had the effect of repealing the mineral land legislation of 1883.8 The state was left thereby without any express provision for the reservation or protection of the mineral lands or of the minerals in them.1

1 Art. 14, sec. 7.

2 Cox v. Robinson, 105 Tex., 438 (1912).

3 Land Office Report, 1881-2, p. 6.

4 Laws of 1883, p. 85.

5 Laws of 1883, p. 100.

6 Report of the State Land Board, 1886, p. 6.

7 Land Office Report, 1888, p. 9.

8 Heil v. Martin, 70 S. W. Rep., 430 (1902).

Under the law of 1883 the classification and sale of mineral lands were not provided for, but the retention of these lands by the state and their operation by private persons upon the payment of a royalty to the state was the policy adopted. The policy which had been followed up to 1883 had been to withhold known mineral lands from sale and to make no provision for the sale of the minerals. In 1889 provision was made for the sale of mineral lands as such.2 Mining claims on lands containing gold, silver, cinnabar, lead, tin, copper or other valuable minerals were limited to twenty-one acres, and the purchase price of the land was fixed at $25 an acre. Mining claims on lands containing coal, iron ore, oil, natural gas, fine clay, marble, or other deposits were limited to one hundred and sixty acres for individuals and to six hundred and forty acres for associations which had expended as much as $5,000 in developing the claim, and the purchase price of the land was fixed at $10 and $20 an acre according as it was or was not situated within ten miles of a railroad. Purchasers of mineral lands were given five years within which to pay for them. In 1888 a geological and min-eralogical survey of the state was authorized, and it was expected that this survey would enable the state to classify the mineral lands; but the work of the survey was incomplete and lands which were really mineral lands continued to be classified as grazing land and sold at $1.00 and $1.50 an acre.3

In 1895 a new mining law was passed.4 Some of the changes made by it were that the prices of the land containing the less valuable metals were fixed at $10 and $15 instead of $10 and $20, and that ten years credit with interest at 4 per cent was allowed to purchasers of such lands.

Under the credit provisions of the laws of 1889 and 1895 there were easy opportunities for the exploitation of a claim without adequate payment, and valuable deposits were worked in El Paso, Presidio and Brewster counties without any payment to the school fund.1 With a view to correcting the deficiencies due to imperfect classification of the public lands, mineral surveys were authorized in 1901 and 1903, but like the sur-very of 1888, their work was stopped before it was completed, and the school fund has apparently never been the beneficiary of any of the work of the several surveys. The loose and careless policy respecting classification and sale explains why the receipts to the school fund from the sale of mineral lands between 1883 and 1905 were only $17,972.2

1 Mining Co. v. Rogan, 68 S. W. Rep., 155 (1902).

2 Laws of 1889, p. 116.

3 Laws of 1888, p. 10. Land Office Report, 1899-1900, p. 28.

4 Laws of 1895, p. 197.

Amendments were made to land laws in 1905, the most important one being that the commissioner of the general land office should set the price upon the land, subject to a minimum of $25 per acre.3 Other important changes made were on account of defects in the act of 1B95 and were that one-fifth of the purchase price of the lands containing valuable minerals together with interest on the unpaid installments should be paid annually, and that one interested in a forfeited claim should not be eligible to relocate or have any interest in a relocation.

In 1907 a very important change in the law was made when it was provided that land classed as mineral could be sold for agricultural or grazing purposes, but upon the express condition that the minerals were reserved to the fund to which the land belonged.4 The significance of this provision for blanket classification can be best understood in the light of the history of certain portions of the different acts from 1883 to 1907. All of the acts reserved to the fund to which the land belonged the minerals in the land, and the acts from 1889 on reserved from sale or other disposition except as mineral lands all lands containing minerals, and a person in applying to purchase any land was required to certify that to the best of his belief there were no minerals in the land.

The reservation clause in the act of 1889, as well as that in the act of 1883, was nullified by the Revised Statutes of 1895 which in article 4041 released to the owner or owners of the land the minerals in the land.1 Though by this article the state released its mineral rights in land parted with prior to the adoption of the Revised Statutes of 1895, by article 3495 of the same statutes there were reserved the minerals in lands disposed of after the adoption of the Revised Statutes.

1 and Office Report, 1901-2, p. 42; 1903-4, p. 10.

2 Land Office Report, 1903-4.

3 Laws of 1905, p. 148.

4 Laws of 1907, First Called Sess., p. 495.

The state contended in the case of Schendell v. Rogan that the reservation clause reserved the minerals not only in lands classified as mineral lands, but also in lands classified and sold as agricultural, grazing, or timbered. The decision of the court, however, was that when land had been classified and sold by the commissioner of the general land office as agricultural or grazing land, even though it contained minerals, the action of the commissioner was conclusive upon the state.2 Since, therefore, in order for the reservation clause to be effective the land must be classified as mineral, the provisions in the law of 1907 for a double classification and for a reservation of the minerals make it possible to dispose of the land without impairing the right of the state to the minerals in it.

Despite more than seventy-five years of ownership and management of the public lands, the state in 1912 had a most unsatisfactory mineral land law on the statute books. The commissioner of the general land office wrote regarding the situation that valuation of mineral lands was "simply guess work, and purely arbitrary. A precious mineral location might be rich in ore and the owner extract large quantities in a short while, exhaust the deposit and abandon it in a year or so without liability in excess of the nominally appraised value. As yet few have found mining on school land profitable. In the case of the baser minerals, such as oil, coal, etc., the average prospector does not prospect, but waits for his neighbor to develop. He is likewise slow to do much real prospecting before buying (the land), lest something should be found, and the price fixed proportionately."3

The imperfections of the law of 1907 for promoting mining development and the need of some provision for the sale of minerals found on land which had been sold but the mineral rights to which had been reserved to the state led to the legisla-tion of 1913.1 The law of 1913 provides that the prospector for oil or gas shall take out a permit, the possession of which gives him the exclusive right for a certain period of prospecting on the land. In the event of the discovery of oil or gas in commercial quantities, the owner of the permit has the right to lease the land and operate the well or wells upon payment of $2 per acre per annum in advance and of a royalty annually of one-eighth of the value of the gross production of the oil or of 10 per cent of the meter output of the gas sold. In the case of land which has been sold by the state with a reservation of the min-erals, the annual charge to the prospector for the permit to prospect for oil or gas, amounting to twenty-cents an acre, accrues to the owner of the land. There are no similar permit fees for prospecting for other minerals and no absolute lease charge per acre in addition to the royalty. The royalty payable in the case of coal is six cents a ton; for lignite, four cents a ton; and for other minerals, stones, etc., five per cent of the value of the gross output.

1 Heil v. Martin, 70 S. W. Rep., 430 (1902).

294 Tex., 585 (1901).

3 Land Office Report, 1911-12, p. 13.