THE ORNEY GENERAL 

August 30, 1957 

Hon. Earl Rudder 

Commissioner 

General Land Office 

State of Texas 

Austin 14, Texas 

Dear Sir: 

Opinion No. WW-248 

Ret Whether the description of land contained 

in an advertisement for 

bids fop mineral lease 

controlsover an ambiguous description contained in a lease executed subsequent to an 

award to the successful 

bidder. 

Your request .for official op:nion, dated July 24, 

1957, is based upon the factual situation briefly outlined 

below: 

On December 3, 1946, the School Land Board advertised 

for oil and gas lease a portion of the Canadian River as 

"Tract 1, Canadian River bed, 

acres (see sketch ;itta.&&)" D 

contalning approximately 1742 

The sketch referred to clearly 

discloses the e&e,.? i,oundarg of the lease as being a line extending from a pc,int ~her? the east line of Sect:on 16, Block 

47, H&TC RaIlway Company Survey, intersects the north bank 

of the river, to a point where the east line of Section 58, 

Block 46 of safd survey intersects the south bank of the river. 

The west boundary of the area to be leased clearly was shown 

by said plat to be from a point where the west line of Section 

19 said Block &7 intersects the north bank of the river to a 

point where tne west lrne of Section 62, Block 46 intersects 

the south bank of tS.e river. 

The 3.M. Huber Corporation, as high bidder, was awarded a lease. On December II, 1946, lease No. M-30403 was issued 

to that company. A deacrfptlon of the property as contained 

in the lease was the same as that set forth in the advertisement for lease with an additional reference to "field 

notes on file Pn the General Land Office M.F, 1864”. T'he field 

notes in the file referred to encompass less area than that 

depicted on the plat wh9@h formed the basis of the bid. 

Stated briefly, the ffeld notes call for an easterly and westerly boundary of the strip to be leased as running north and 

south whereas the sketch or plat show these boundaries as 
- -. - 

Hon. Earl Rudder, page 2 (Ww-248) 

running a few degrees off of north, The net result is that 

two pie-shaped tracts (one on either end of the area described by the f"ield notes) were included in the sketch but 

excluded by the field notes. Since the field notes as well 

as the sketch were incorpcrated in the lease there results 

an ambiguity in the description ,of the property leased. 

You ,Purther nointed out that in Cause No. 59581. 

State v. Whfttenburg, 

--- 

in the Diat:riet Court OP Travis County, 

Texas;, 53rd ~Jzdi.cia,l 91 y*;,pEc",, a-"fP;-med in l.j7 S.W. 2d 691, 

the State rec~~~~ered Land ihiah :i? genera; is desoribad in 

accorc?ance w%h the %l.dd nfx3 I!xreinabove referred to. In 

that Judgment hit was held th,%t fkmer lease No. 18164 embraced the same lanl and was in .%ll force and effect. In 

“I21 C%E J.M. Huber Co~~oratian now @lai.m 

that Lease No0 M-304n- us covera the acreage siwwn 

on tne pl,a% in ,v:Lew of" its knowl.edge of the 
. e -- 

Hon. Earl Rudder, page 3 (~~-248) 

WhittTbure, case ,and the description eontalne In he judgment therein, as reflected 

by the assignment executed by the said J.M, 

Hilber CoIpopation in 19547 

"(3) If the lease covers the aPea as 

shown on the @at, wl.l:, lb; be neseesary .that 

an amendment to the leage be executed by the 

Commssslaner? 

Further, sir:@ I,., t,p: ;+-r's is not the slightest indication 

of knowledge or 2h.e J~:?A of” 1:‘r e 3t;zt* 01” of filber regarding 

the disparity he,t_wce:~:~ ?:!T%F: :'Seld nobles and the sketch, there 

is no ba.s:i.s for a c~i:,t:n%:,~*,~~ of a novat,l,on or "new contract" 

upon the exet:utfo:c,, ii:; .?,s;;~ ,~er~y ,?:f the lease pra~ar. For the 

same reaso.rp,, w? be.!.:r?j~e *,f,,;it, no pa.rticular signi.ficance can 

in f&;,s c:ilse tie, af<;,r::cc:,fQj .f; a the Pact ,that BLiber,9 Ln a subsequent t:Fti.:<:ls:l"er nf L,'!L* lance ..~ _c_, referFed to the Pleld note 

descript1,or:. ~~tai.ne-1~ !n the Whlttenbus _ t g case ,as, ameans of 

dese?i,bf,ng ,L;he prsperty wh,i.'c:h i3ube;; hen thougnt was aecurately re?lec,t;ed. by SV% .f"!,eld notes. It Is manl.fest that 

Huber',; reference to CL% :?:,eld notes was the result of a 

mistake c,f fact, just as b:tb Iiuber and the State executed 

the lease ~u.rAer an f~irr~~~:!,aal :?&sapprehensi.on of fact ~ 
-. - . 

Hon. Earl Rudder, page 4 (WW-24.8) 

It is settled law in this State that upon the aeceptance of a bid a binding aontraclt is formed between the 

parties whjeh may not be altered by subsequent unilateral 

action. Lane and Nearn v. Warren, 115 S.W. 903 (Civ. App. 

1909, error ref.). Although this decision relates to a aontract between individuals the doatrine thereof applies with 

equal force to an agreement between the State and an individual. Jumbo Cattle 79 Tex. 

Mk&;890) ; State v. 

Company v. Bacon, 5, 14 S-W. 

Robison, 119 Tex. 202, 30 S.W. 2d 292, 

D 

The foregoing authorities are decisive of the main 

question here under considerat,ion. Whether a aontraot came 

into existence between HuSer and the State upon compliance 

by Huber with t,hz sales act, in acoordanee with the holdings 

in the Jumbo Cattle Company case and the Robison case, supra, 

OP whether such contract did not eome into being until the 

acceptance by the School Land Board of the Huber bid, it 

is u,nnecessary to decide. rSre disoussions of! this question 

in Schneider v, Lipscomb C,unty Na,t. Farm Association, 146 

Tex. 66, 202 S,W, 2d 832. 836 (1947). In either view a 

binding-contract was re,%&e3 between the State and Huber not 

later than upon acceptance oJ" Huber's bid by the State School 

Land Board. This, OP course, was prior to the execution of 

the lease in questio?. Th?ref"ore, the lease must necessarily 

conCorm w!,th the prior -onSraat between the parties and when 

so confomfed embrac~ef3 the property depicted in the sketch 

or pl:,t by wh:.ch, th,e bi.d was inv.ited and made. 

With respect to th+ various specific questions propounded it is WY op.:n4on aad you are so advfseds 

(1) That We easte,rly and westerly limits of the 

lease M-30403 leg&ll:; a::?~! as depicted on the plat attached 

to the notice fsr bids. S:ince the field nates are inconsistent with the e;rete,b t%y legally form no part of the contract 

between Huber and t,he State and must be rejected. 

(2) That the reference bi Huber in its subsequent assignment to the field notes forms no basis for an estopel 

because !.t is evident that such referenee was the result of 

an innocent mistake. Moreo,-;er, the State had no occasion to 

and in fact did not in any way rely on nor was it prejudiced 

by such reference and in ,the absence of such a showing an 

estopel w-1.11 not l,ie. Ktlehne v. Benson, 148 Tex. 54, 219 S.W. 

2d 1,006, 1,008-1~009, j:1.949j 0 
Hon. Earl Rudder, page 5 (~~-248) 

(3) Since the lease, as now drawn, aontains an ambiguous description of the property an amendment correotly 

descrlblng the property should be executed by the Commlsaioner. 

(4) The oorreotlve amendment should have the approval 

of the School Land Board. Article .5&1c-3, 10, V.C.S. 

(5) According to the notice for bids the tract was 

leased on an "app.roxim&te" acreage basis. The bonus paid 

therefor need not be adJu?ted unless the Increase in acreage 

occasioned by the Iraelusion of the triangles in 

unreasonable, Rich v. F+rguson, 45 Tex. 

Clark, 237 S.W. 2d 4.30 (C~V. App. 1951); 

396 (1%: 

;flesx 

); Sla le v 

see also Woo en v. 

State, 142 Tex& 23,8, 17: S.W. 28 57, 58 (1944). Since we do 

not at this ,tZ.me know the amaant of a,creage contained in the 

two trfangles we are unzhle to determine ,whether ti;e addition 

thereof w.Z: csIlat-i+.&te an "Y~n?easonable ' Increase. With 

respect to ?n L*:crease in the payment of rentals your attention Z.s i,nvl,ted to Par~-%pb~ 2 ,of the lease wherein Huber has 

agreed to pay T"enua +-Is rrpm~ the actual acreage after the 

amount thereof has been de%zmined by a survey acceptable to 

the Commia~ioner. Thl,s o,3fra,ctual provIsion iS controlling 

(as to rectal, payments~) armi if a survey OS the entire area 

reveal 8 'rice t:!lq"r ;7&1 irjws, the actual acreage should form 

the baals for ti& c&;p?.f,at.Uo?m of all ren%sis accruing subsequent to the surve::. 

(.2) An fnmcent yeferenoe by a lessee fn 

an ase~gment of a ?,esse to an erroneous descrfpticn of the property embraced, when not 

rel,fed on by ~310 prejudicial to the interests 

cf the State, w,ill not estop the lessee from 

a,3 se-rL,:!.r~,~ a r3.ghi; to ~ei%n the lease to confocmi wi,t,ll i ~:52r contract. 

(3) A lease purporting to document a preexisting contract and containing an erroneous 

property desc:rlpt'Ion should be amended or reformed -t-m2 conform with suoh prfor @ontract. 
Hon. Earl Rudder, page 6 (W-248) 

(4) The Commisstoner of the General Land 

Office is authorized to smend and oorreet an 

erroneous lease only upon approval thereof by 

the Sahoo& Land Board. 

an “a$p5ioZmate” 

ere a lease is entered into upon 

acreage basis no adjustment 

of the bonus pa:d legally is requfred unless 

the excess In aoreage is unreasonable. The 

rentals payable under the lease Pm question 

are, a@cording to the zontraot itself, determinable ‘by the a@trzal acreage content after 

such aoreage 3.2 detem9ned by a aw-vey acceptable to the kmmissioner of tRe General. Land 

Offic3e o

Respect,$kl.ly submsmitted, 

WILL WILSON 

Attorney Gene-al of Texas 

JHR:d-b 

APPRCXED: 

OPINION GOMMIFTEE 

H. Grady Chandler, ‘%?2rman 

/s/ Howar? mys 

Sam Lane 

James W. Wilson 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: 

Geo. P, Slackbwn