Is there a land vacancy?

By LYNN MONTGOMERY | East Texas Edition

Feb. 3, 2005 - "Is there a land vacancy in Upshur County?" is the question yet to be answered.

The question has been the source of debate during a civil trial conducted in Gilmer.

State District Judge Paul Banner is now deliberating the question after lawyers concluded their arguments on Jan. 25. The lawyers were representing people such as landowners, gas and oil companies, churches, the State of Texas and the state's land commissioner.

The land vacancy in question, known as William King Survey and entailing 4,662 acres between Gilmer and Longview, was brought forth by W.L. Dixon and Barton McDonald. In 2003, the duo filed an application about the land with the Texas General Land Office. In early 2004, Land Commissioner Jerry Patterson sided with the landowners that there was not a vacancy. Dixon and McDonald then filed suit against the commissioner and the state, hence the trial that began Jan. 18 in Gilmer.

The lawsuit alleges the acreage in question lies 2 1/2 miles west of the current documentation.

If this is the case ... if this land's boundaries are not where they were originally documented ... where does that put other landowners' property today. Is it really their land?

At one time, the question of why a vacancy ruling on one tract wouldn't affect the neighboring tracts was asked by Banner. Similarly, Texas and New Mexico have been arguing for years about ownership of land in the Panhandle. But, Dixon and McDonald want the matter cleared so Dixon can pursue building a golf course.

During the recent trial, McDonald was asked, under oath, the reasoning for the lawsuit.

"To clear the title," he replied.

"Is the only reason (for the lawsuit) to clear the title?" the lawyer asked.

"Yes, sir."

But the landowners affected by the lawsuit argue a clear title is not the reason. They stated Patterson had given them a clear title when he found their wasn't a vacancy.

"They are destablizing their own title," said landowner Tom Mitchell. "They're seeking to attempt to suspend Isaac Newton's third law (of motion) with a judicial writ. You can't put two objects in the same place."

In reference to the writ, Banner wrote three writs which separated 766 acres of Dixon's land from the original 4,662 acres of the King survey.

Landowners say the reason for the lawsuit involves money. Texas law provides an incentive for unclaimed state lands, known as a "finder's fee." The fee is 1/32 to 1/16 of oil and gas royalties, and in this case, would be millions of dollars.

For now, all interested parties are in a wait-and-see situation; and the case is far from over.

A lawsuit, against Dixon and McDonald for damages, is in the works by the affected landowners. Their lawsuit is pending, based upon the outcome of this case ... and appeals.

Expectations are for the judge's decision to be issued by Feb. 7.