(dissenting).
I respectfully dissent for reasons which might be headnoted as follows:
(1) Article 5397 simply authorizes the Land Commissioner as agent of the State to rescind the State’s executory contract of sale with the owner of a mineral award upon the owner’s default in the payment of rentals. Fristoe v. Blum, 92 Tex. 76, 45 S.W. 998 (1898); Island City Savings Bank v. Dowlearn, 94 Tex. 383 60 S.W. 754 (1901); Underwood v. Robison, 109 Tex. 228, 204 S.W. 314 (1918).
(2) In dealing with its land the State acts in a proprietary capacity and is subject to the same rules of law, including the principles applicable to rescission, as would be applied to private persons in similar circumstances. Fristoe v. Blum, supra.
(3) Under an executory contract for the sale of land, there must be an unequivocal act of rescission by the seller before tender by the defaulting purchaser to defeat the right of the latter to make good the default. Island City Savings Bank v. Dowlearn, supra; Tom and Wife v. Wollhoefer 61 Tex. 277 (1884); Albright v. Hoyt, Tex.Civ.App., 57 S.W.2d 342, writ ref. (1933).
The majority opinion correctly states that the Land Commissioner’s subjective intent to forfeit Cobra’s mineral awards, if he had any such intent, would have been ineffective because it would afford no record of the forfeiture. The majority opinion may consider the overt act of forfeiture to have been the stamping of Cobra’s awards, the Commissioner’s letter refusing *899to accept the rentals, or his notification of forfeiture through a letter written Cobra a month after the rentals were tendered. But, whatever the overt act, it occurred after Cobra had tendered all rentals due.
I find nothing in the majority opinion or in respondent’s affidavits disputing Cobra’s assertion that no act of forfeiture took place prior to the tender of the rentals. If the majority’s holding is based upon a contrary premise that is supported by anything in the record, an issue of fact is presented; and the proceeding should be dismissed because of this Court’s want of jurisdiction to determine the issue.
The statute before this Court in Fristoe v. Blum, 92 Tex. 76, 45 S.W. 998 (1898) read as follows:
“ ‘If upon the first day of August of any year the interest due on any obligation remains unpaid, the commissioner of the general land office shall indorse on such obligation “Land forfeited,” and shall cause an entry to that effect to be made on the account kept with the purchaser, and thereupon said land shall be forfeited to the state without the necessity of re-entry or judicial ascertainment and shall revert to the particular fund to which it originally belonged and be resold under the provisions of this act or any future law.’ ” (92 Tex. 81-82, 45 S.W. at 1000) 1
The Court first ruled that when the State deals with its lands “the same law applies to it as under like conditions governs the contracts of an individual.” (92 Tex. 80, 45 S. W. 999.) The Court then held that the statute gave the Land Commissioner the authority to rescind rather than to forfeit, stating:
“The word ‘forfeiture’ is inaptly used in the statute. * * * This assertion of the paramount title in the state was no more a ‘forfeiture’ than it would have been if Bennick had bought the land from an individual who, for the same reasons, declared a rescission of the sale.” (92 Tex. at 85, 45 S.W. at 1002.)
In Island City Savings Bank v. Dowlearn, 94 Tex. 383, 60 S.W. 754 (1901), this Court held that the attempted forfeiture [rescission] by the Land Commissioner was invalid and then said:
“ * * * The contract not being lawfully forfeited, the rights of the plaintiffs remained intact, and they had the right to pay up the past-due interest and such penalties as were required by law. The sale to the defendant was without authority on the part of the land commissioner and conferred no title on him.” (94 Tex. at 389, 60 S.W. at 756.)
The statute considered by this Court in Underwood v. Robison, 109 Tex. 228, 204 S.W. 314 (1918) provided as follows:
“A failure to file either of the sworn statements herein provided for and within the time specified, or the filing of a statement untrue or false in material matters, or the failure to expend, the sum named in a bona fide effort toward the development of the area or areas, shall work a revocation of said permit and the termination of the rights of the owner. Such termination shall be endorsed by the Commissioner of the General Land Office upon a duplicate copy of the permit retained in the General Land Office.” (Acts 33rd Leg., R.S. 1913, Ch. 173, Sec. 7, pp. 411-412.)
That statute could more easily have been construed as providing for forfeiture in the true sense of the word than could Article 5397. The underscored language so reflects. Moreover, that statute had to do with the mineral estate. Nevertheless, this Court by reason of “The policy of our laws, as expressed in various earlier statutes relating to public lands, and as worked out and declared in several decisions of this court construing them” [109 Tex. 228, 204 S.W. 314] held that the statute merely allowed the Land Commissioner to rescind the contract and *900did not provide for a true forfeiture. It is submitted that the majority opinion ignores “The policy of our laws” that was honored in the Underwood case.
The majority opinion concedes “that contracts, such as those Cobra had with the state, are executory and that statutes which authorize a forfeiture are ‘to be treated as merely making provision for the exercise of the right of the state to rescind executory contracts of sale for the failure of purchasers to perform the conditions on which the continuance of their rights depend, and as conferring authority upon the officer of the State to act for it in effecting such rescission.’ ” But the opinion nullifies this concession by holding that Article 5397 in some way restricts the Land Commissioner’s authority to accept past due rentals. As I understand the majority opinion, it does so because (1) Article 5397 prescribes no procedure for evidencing the act of rescission; (2) there are other differences between Article 5309 and similar statutes that reflect legislative intent to restrict the Commissioner’s authority to accept past due rentals on mineral awards; (3) the legislative history of Article 5397 itself shows legislative intent so to restrict the Commissioner’s authority; (4) such restriction is necessary to protect the State against the loss of its mineral resources; and (5) Cobra has not shown that its right to a writ of mandamus is free from doubt. I disagree.
Before discussing in detail what to me are the fallacies in the reasoning of the majority opinion, I emphasize that the only issue presented is whether Article 5397 automatically and without any action on the part of the Land Commissioner terminates the State’s executory contract with the owner of a mineral award if the latter fails to perform within the thirty day grace period or whether the contract remains in effect until the Land Commissioner acts. If the latter, then the statute simply allows the Land Commissioner to rescind the contract, and principles applicable to cases of rescission must be applied. Once it be admitted, as to me it must be admitted, that Article 5397 does not provide for ipso facto termination of the contract upon default by the purchaser of the award, Cobra is entitled to prevail.
No question of restricting the authority of the Land Commissioner to accept late payments is involved. If the contract automatically terminates upon the purchaser’s default, the Land Commissioner has no discretion; and if the contract continues in effect until the Land Commissioner acts, then’he'does have discretion which he may exercise at any time before the purchaser cures the default.
That Article 5397 does not prescribe the procedure to be followed by the Land Commissioner in rescinding the State’s execu-tory contracts is irrelevant. It may be assumed, as does the majority, that the Commissioner may rescind in any manner that offers satisfactory record evidence thereof. But the question is not how the Commissioner must rescind in order to preclude the defaulting purchaser from making the default good. The issue is when the Commissioner must act in order to prevent the defaulting purchaser from making the default good.
The cases relied upon by Cobra, at least to me, clearly hold that the defaulting purchaser may make good the default at any time prior to an act of rescission by the Land Commissioner. Here Cobra’s contracts had not been rescinded when the rental payments were tendered. Assuming with the majority that the Land Commissioner could have rescinded in different ways, the fact remains that he had done nothing to rescind prior to tender of the rentals. Therefore, Cobra had the absolute right to pay, and the Land Commissioner had no right to refuse to accept the tendered rentals.
Aside from the fact that Article 5397 prescribes no procedure to be followed by the Land Commissioner in rescinding, no distinction whatsoever can be drawn between that statute and the legislation involved in Fristoe v. Blum and like cases. The statutes before this Court in Fristoe v. Blum, Island City Savings Bank v. Dowlearn and *901Underwood v. Robison have already been considered. Each fixed a definite deadline for performance by the purchaser; and each on its face was mandatory.
No distinction between Article 5397 and the other statutes can fairly be drawn because Article 5397 provides that the Commissioner shall forfeit “when sufficiently informed of the facts,” whereas the other statutes contain no such language. The quoted language would seem to give the Commissioner more discretion than did the other statutes that on their face ordered the Land Commissioner to forfeit forthwith. If anything, the quoted language enlarges rather than restricts the discretion of the Land Commissioner.
To me the majority’s conclusion that “the Commissioner’s discretion to accept late payments is in fact discouraged by the terms of Article 5397” is untenable. The Commissioner’s discretion to accept late payments could not be any more discouraged than it was by the language of the statutes before this Court in Blum, Dowlearn and Underwood, — statutes that provided that the Commissioner shall forfeit or shall terminate. That language is quite mandatory.
What is said above is applicable to the majority’s statement that “The enactment of Article 5397 ameliorated the strictness of the former law, but it did so with guarded language.” I am unable to find the “guarded language” the majority has in mind. There is nothing guarded about the language that the Commissioner “shall forfeit” the awards. Yet the same language was used in the statutes before this Court in Blum, Dowlearn and Underwood, all of which held that the Commissioner was given the same authority to rescind that a private individual would have in similar circumstances.
The majority opinion gets some comfort from the fact that Article 5326 “leaves open the matter of how late the payments should be before he acts,” that is, before rescission. This feature is compared to the language in Article 5397 that “treats lateness in terms of thirty days.” But the statutes involved in Blum, Dowlearn and the other cases relied upon by Cobra did not “[leave] open the matter of how late the payments should be before he acts.” As already mentioned, those statutes provided deadlines for payment; and when the deadline passed without payment, the Land Commissioner could rescind.
Moreover, the statement that Article 5326 “leaves open the matter of how late the payments should be” before rescission is subject to challenge. The language that “If any portion of the interest on any sale should not be paid when due, the land shall be subject to forfeiture by the Commissioner,” etc., would seem to give the defaulting purchaser no grace period whatsoever. On its face, the statute imports that the Commissioner may forfeit [rescind] immediately after the State’s purchaser fails to pay “the interest * * * due.”
Nor can I agree with the majority’s statement that “It is our further opinion from our study of the history of Article 5397 that his discretion on the side of an acceptance of late rentals * * * was more restricted than is the case with the acceptance of late rentals on contracts concerning other state lands.” As originally enacted, Article 5397 provided for forfeiture in the true sense. No action by the Land Commissioner was required. The majority opinion so states.
When the 43rd Legislature amended Article 5397 in 1934, it made it plain that it intended to substitute for the harsh provisions of the statute the language of other statutes that gave the Land Commissioner the discretion to rescind the State’s executory contract. Not only does the language of Article 5397 as amended so reflect; other provisions of the amendatory legislation likewise so prove. In this connection Sections 3 and 4 thereof read in part as follows:
“Sec. 3. Laws providing for payment of rental on mineral claims during the month of January, 1934, are suspended for a period of one year from the effective *902date of this Act as provided in Section I hereof * * * ”
“Sec. 4. The fact that an extraordinary financial emergency and depression exists within the State and elsewhere, and that many citizens are about to lose their mining claims, on which they had paid rentals for several years, and done valuable and expensive assessment work, dire to their inability at this time to pay their rentals, and by reason thereof imminent danger exists whereby citizens may be subject to distressing losses and lose the accumulations of a life time, and the fact that great and irreparable wrong and injury will be done by the State against its own citizens unless immediate relief as aforesaid hereby be granted, create an emergency,” etc. (Acts 43rd Leg., 2nd C.S.1934, Ch. 20, p. 62.)
The majority opinion states that “Protection of the State from exhaustion or loss of mineral resources was the object in stating a short period of grace for late payments.” This is followed with the assertion that “if the law permitted long periods of delinquency as to mineral land, it would be possible for a claimant to enter upon lands, do extensive assessment and development work, and prove the claim was valueless.” The issue of whether or not “a short period of grace” for late payments is desirable is irrelevant. The period of grace given by Article 5397 is thirty days. No period of grace was given by the statute involved in Fristoe v. Blum. The statute construed in the Dow-learn case provided two periods of grace. Other statutes of the kind under consideration here have allowed different grace periods.
The question here presented is what happens when the period of grace, whether long or short, has expired. Upon such expiration, is there a true forfeiture, or is the Land Commissioner given the discretion to rescind the contract? Under the uniform holdings of this Court, Article 5397 provides the latter instead of the former remedy. And under Blum, Dowlearn, Underwood, the defaulting purchaser may make good the default prior tb rescission by the Land Commissioner.
Presumably the Land Commissioner will perform his duty under Article 5397. If the payments are not made within the grace period, he will evaluate the facts and either rescind the contract or attempt through threat of rescission to induce the purchaser to perform.
The claimant will not be allowed “to enter upon lands, do extensive assessment and development work, and prove the claim was valueless” unless the Land Commissioner chooses so to allow. I suggest that it is not the function of this Court to provide safeguards for the State that the Legislature did not choose to provide when it amended Article 5397.
Any one of the statutes that gives the Land Commissioner discretion to rescind the State’s executory contract for the sale of land upon default by the purchaser, instead of providing for a forfeiture in the true sense of that term, places the matter of protecting the interest of the State in the hands of the Land Commissioner. If the Legislature had intended to protect absolutely the State against the evils of “long periods of delinquency” as to mineral land, insofar as Article 5397 is concerned, it would never have amended that statute. It would have left it as it was, that is, as a statute providing for an ipso facto termination of the interest of the defaulting purchaser. Instead the Legislature chose to rely upon the discretion of the Land Commissioner, a discretion he may exercise prior to the purchaser’s making good the default.
Finally, the majority’s conclusion that Cobra’s right to the writ is not free from doubt is based upon the majority’s interpretation of Article 5397. Upon the basis of such construction, the majority overrules Cobra’s contention “that the Commissioner had no discretion with respect to the decision of whether to accept or decline the tendered late rentals.” Of course, if a matter concerning the Commissioner’s *903discretion to rescind after tender is presented, Cobra is not entitled to the writ because its right thereto is not free from doubt.
But when Article 5397 is properly interpreted, the Land Commissioner had no discretion after tender by Cobra. He had no more discretion than did the Land Commissioner in the Dowlearn case, where this Court held that “The contract not being lawfully forfeited, the rights of the plaintiffs remained intact, and they had the right to pay the past-due interest and such penalties as were required by law.” (94 Tex. 389, 60 S.W. 756.)
Under Article 5397, when properly construed, if the owner of a mineral award is in default at the expiration of the thirty day grace period, the Land Commissioner has discretion either to rescind the execu-tory contract or to allow it to remain in effect. Such discretion continues until the Commissioner takes appropriate action to rescind or until the defaulting purchaser prior to any appropriate action of rescission by the Commissioner makes good the default. The continuing right of the purchaser to make good the default is cut off by an appropriate act of rescission by the Land Commissioner. By the same token, the continuing right of the Commissioner to rescind, his discretion to do so, is terminated by action of the purchaser curing the default prior to rescission by the Commissioner.
DISSENT TO THE CONCURRING OPINION
The concurring opinion of Mr. Justice Smith is on an entirely different basis from the opinion of Mr. Justice Pope, and it must be dealt with separately.
The position taken in the concurring opinion is that since Cobra failed to make the initial payment within the time prescribed, no contract of sale by the State was created; and hence there was no contract for Sadler to rescind or to forfeit. The period of delinquency is referred to as one during which Cobra “says it had rights but no obligations, and the State had obligations but no rights.” In this connection it is stated that under Article 7, Section 4, of the Texas Constitution, there must be a sale; otherwise one collides with the constitutional prohibition against gifts of public lands.
This approach completely overlooks the fact that the legislature may put the State’s lands to use prior to selling them; and then when Cobra received its awards, it acquired from the State not the title to the land subject thereto, but the right to mine the lands, a valuable right for which Cobra has expended approximately $12,000.
Consideration of the legislation here involved as originally enacted, Acts 36th Leg., 2nd C.S., 1919, Ch. 79, pp% 241-246, convinces me that the initial payment of rentals is not a condition precedent to the issuance of an award and the creation of rights and obligations between the State and the owner of an award. This legislation and the amendments thereto make it clear that it is the “owner” of a mineral award who is to pay the rental of 50⅞⅜ per acre, including in this connection the rental for the first year. This means that the payment of the first rental of 50⅞5 per acre is not a condition precedent to the issuance of an award. If so it could never be paid by the “owner” of an award. It would be paid by a “locator” or “applicant.”
Since its enactment in 1919, the legislation before us has made a clear distinction between the locator of a mineral claim or an applicant therefor, and the “owner” thereof. Speaking broadly, the legislation provides that the staker of a claim is a “locator” or “applicant” until he receives a mineral award. Thereafter he is an “owner” of the claim.
For example, Sec. 3 of the statute as originally adopted (now Article 5390) provided how “The locator of any mining claim” shall post his claim. (Acts 36th Leg., 2nd C.S., 1919, pp. 241-242.) Sec. 4 (now Article 5391) required “The locator” *904to file an application for survey with the county surveyor. {Id., p. 242.)
But Sec. 6 (now Article 5394) provided that “After the date of an award the owner shall have the exclusive right to the possession,” etc. {Id., pp. 241-243.) Then Sec. 8 (now Article 5397) provided that “Failure of the locator or owner of any claim or claims to comply with any provisions of this Act,” etc., shall forfeit the claim. It also referred to “Any claim which shall have been forfeited by an locator or locators, owner or owners,” etc. {Id., pp. 243-244.) These references both to “locator” and to “owner” were accurate.
It follows that prior to the granting of a mineral award the staker of the claim is a “locator” or “applicant,” whereas after the issuance of the award he is an “owner.” This is conclusively proved by Article 5394 (Sec. 6 of the original legislation) which states that “After the date of an award the owner shall have the exclusive right to the possession,” etc. The “locator” or the “applicant” becomes an “owner” after the award is issued to him.
Of course, the owner of a claim is to be distinguished from the owner of the mineral estate. The owner of a claim, that is, a claimant who has obtained a mineral award, has the right to possession of his claim and the right to work the claim. He is not, however, the owner of the mineral estate. He does not become such until the State concludes its sale of the minerals to him by issuing the patent provided for by Article 5398.
It follows that the payment of the first rental of 50‡ per acre is not a condition precedent to the granting - of a mineral award by the land commissioner. If so, the payment would be made by a “locator” or “applicant” and not by an “owner.” If the position of the concurring opinion be adopted, the “locator” cannot become an “owner” until after he pays the first rental. But if this be so, the first rental is paid not by the “owner” as required by Article 5395 but by the “locator” or “applicant.” That article says that all rental payments, including the first, are to be paid by an “owner.” And, as has already been set out in considering the interpretation of Article 5395, my construction of that article, together with the 30-day grace period allowed by Article 5397, mean that if the first year’s rental is paid during such grace period, it is paid by an “owner.”
In support of the position that Article 5395 must be interpreted as requiring the payment of the first year’s rental in advance of the issuance of a mineral award, the concurring opinion invokes Article 7, Section 4 of the State Constitution that requires public free school lands to be “sold.” The concurring opinion asserts that if the owner of an award may work his claim prior to payment of any rental, there has been no sale as required by the Constitution. In this connection, it interprets Article 5395 and its companion articles as in no way obligating the owner of a mineral award to pay annual rental or to do anything else there prescribed. The claimed consequence is that unless the first year’s rental be extracted in advance the legislation is unconstitutional in that the State has given away its minerals instead of having sold them.
While I have grave doubt as to the soundness of the contention that Articles 5388 et seq., place no firm obligations upon the locator of a mineral claim, it is unnecessary to decide that question. The position of the concurring opinion ignores the fact that the legislature may validly provide for utilization of the State’s lands prior to the sale of such lands. The legislation here involved contemplates utilization of the mineral estate in the State’s lands prior to the actual sale thereof, such utilization to be followed by a sale.
While the legislature is required by Section 7, Article 4 of the Constitution to sell public free school lands, the legislature has the absolute discretion to determine when a sale shall be made and the terms upon which the sale shall be made. Since there may be long delay in selling the lands the *905legislature may, in its discretion, utilize the lands for other purposes prior to sale. For example, public free school lands that are not minerally classified may be leased for grazing purposes instead of sold. Smisson v. State, 71 Tex. 222, 9 S.W. 112 (1888); Reed v. Rogan, 94 Tex. 177, 59 S.W. 255 (1900).
Similarly, the legislature, instead of a sale of the mineral estate in public free school lands, may prior to such sale utilize it in other ways. See, for example, Acts 18th Leg., R.S.1883, Ch. 97, pp. 100-101; 9 Gammel’s Laws, 406^407. That legislation provided that when a prospector or miner should discover any coal, iron, tin, et cetera, on public lands, he could stake his claim; have his claim surveyed; and file a copy of said survey, together with specimens of the ore taken from the mine, with the State Land Board. It further provided that “After the filing of such survey and specimens, the discoverer or his assigns shall work said mine for his own benefit and for the benefit of the fund to which said mine belongs, said fund to receive five per centum of the gross receipts from said mine * * *.” There was no provision for the issuance of a patent to the prospector or miner.
In discussing the foregoing legislation, Chief Justice Phillips in Greene v. Robison, 109 Tex. 367, 378, 210 S.W. 498, 502 (1919), said:
“The mining Act of 1883, which has been once referred to, has an important bearing on this question. It was a contemporaneous Act with that of April 12, 1883, in which the reservation here relied upon by the relator and which likewise is the basis of the personal position of the Land Commissioner, was expressed. It was approved two days later. Each is to be construed in the light of the other. The subject matter of the mining Act was the minerals in the school and asylum lands. It was enacted to give beneficial effect to the reservation of those minerals expressed in the Act of April 12 and repeated as one of its own sections, by providing a method whereby they might be made of use to the State as well as individuals. The plan adopted did not involve their sale, but provided for the granting of mining claims for the working of mines containing the minerals, upon a royalty basis.”
It will be noted that Chapter 97 did not require the prospector to pay the State any cash or other consideration for the right to work his mine. The statute only required the prospector or miner to share the gross receipts of such mine with the State.
The act did not violate the requirements of Article 7, Section 4 of the Constitution, because no sale of the mineral estate was involved; no patent was ever to issue. As the Court stated, the act merely provided for the working of mines upon a royalty basis.
Another illustration is Chapter 100, Acts 21st Legislature, R.S.1889, pp. 116-120; 9 Gammers Laws 1144-8. That act is quite similar to the legislation now before this Court. It provided for the staking of a mining claim; for the making of a survey thereof; and for the doing of annual development work in the minimum amount of $100.00. Further, it required that the locator “shall in addition to this amount of work, annually pay to the treasurer of the state the sum of fifty ($50) dollars on each and every claim filed upon, which amount shall be credited to the fund to which the land belongs upon which the claim is located.” The statute did not require advance payment of any sum to the State.
But when the 1889 legislation got to the point of a “sale” of the State’s minerals, that is, to the issuance of a patent, it did require advance payment of the cash consideration of $25.00 per acre.
The 1889 legislation was a sales act that contemplated much development work prior to the “sale.” It did not require advance payment of the annual rental for the annual development work because at such point *906there was no sale and hence no constitutional requirement that payment be made in advance. The constitutional requirement was met because prior to issuance of the patent, that is, prior to the conclusion of the sale, the entire consideration therefor had been received by the State.
Turning now to the legislation before the Court, it is apparent that such legislation, like the Act of 1889, is a “sales” act having two phases. Phase one involves the activity of the locator of a mining claim before any sale of the minerals by the State, that is, before the issuance of a patent. Such phase is in no way subject to the requirements of Section 7, Article 4 of the Constitution because during such phase no sale is concluded.
The second phase involves concluding the sale of the minerals to the owner of the mining claim, that is, the issuance of a patent to such owner. Here cash in advance is required; a sale is concluded. Article 7, Section 4 of the Constitution is applicable and its requirements are met.
In locating his claim (Article 5390); in making the survey (Articles 5391 and 5392); in obtaining his award (Article 5393) ; in the development of his claim (Article 5394) ; and in paying rental and royalty (Article 5395) ; the locator of the claim is acting under the terms and provisions of a sales act but prior to conclusion of the sale of the mineral estate to him by the State. Section 4, Article 7 of the Constitution is inapplicable. But when the locator of a mining claim seeks to conclude the sale by obtaining a patent thereon (Article 5398) cash in advance is required. The constitutional provision is applicable and its requirements are met.
To my mind, Luckel v. Phillips Petroleum Co., Tex.Com.App., 243 S.W. 1068 (1922), is in point. There the Court had to consider the old Mineral Permit Act that allowed the Land Commissioner to issue permits to prospect state lands for oil and gas. In considering such a permit, the Court said,
“The permit only entitled the owners or applicant to prospect for and develop petroleum and natural gas. It did not confer upon them a right to such minerals. It was not even a lease of the land, but only a basis for obtaining a lease thereon. It was a merely optional right to acquire an interest in the land, equitable in its nature, and the only interest purchased by Roeser or the Phillips Petroleum Company was equitable. National Oil & Pipe Line Co. et al. v. Teel et al., 95 Tex. 587, 68 S.W. 979.” 243 S.W. 1068-1069.
Here the mineral awards only entitled Cobra to mine the lands subject thereto. The awards gave Cobra no interest in the mineral estate but only the right to obtain such interest upon meeting certain requirements.
In my opinion the writ of mandamus should issue.
HAMILTON, REAVLEY and McGEE, JJ., join in this dissent.
. All emphasis in this opinion is supplied unless otherwise indicated.