THE ORNEY GENERAL

August 30, 1957

Hon. Earl Rudder Commissioner General Land Office State of Texas Austin 14, Texas

Dear Sir: OpinionNo. WW-248
Ret Whether the description of land contained in an advertisement for bids fopmineral lease controlsoveran ambiguous descriptioncontained in a lease executed subsequent to an award to the successful bidder.
Your request .forofficial op:nion, dated July 24, 1957, is based upon the factual situationbriefly 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 clearlywas shown by saidplat 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, leaseNo. M-30403 was issued to that company. A deacrfptlonof the property as contained in the lease was the same as that set forth in the advertisement for leasewith an additionalreference to "field notes on file Pn the General Land Office M.F, 1864”

. T'hefield 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 runningnorth and southwhereas 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 (oneon either end of the area described by the f"ield notes) were included in the sketchbut excluded by the fieldnotes. Since the field notes as well as the sketchwere incorpcrated in the lease there results an ambiguity in the description ,ofthe property leased.

**You ,Purther**  nointed out that in CauseNo. 59581. State v. Whfttenburg, --- in the Diat:riet

Court OP Travis County, Texas;,53rd ~Jzdi.cia,l 91y*;,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 ,andthe descriptioneontalne In he judgment therein, as reflected by the assignment executedby 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 executedby the Commssslaner?

Further, sir:@

I,., t,p: ;+ -r's is not the slightest indication of knowledge or 2h.e J~:?A of ” 1:‘re 3t;zt* 01” of filber regarding the disparityhe,t_wce:~:~ ?:!T%F: :'Seld noblesand 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 leasepra~ar. For the same reaso.rp,,

w? be.!.:r?j~e

*,f,,;it, no pa.rticular

signi.ficance

can in f&;,sc: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 referFed to the Pleld note ..~ _c_, descript1,or:.

~~tai.ne-1~

!n the Whlttenbus

t g case ,as,

a means of

_ dese?i,bf,ng

,L;he prsperty wh,i.'c:h

i3ube;; hen thougntwas aecurately re?lec,t;ed.

by SV% .f"!,eld

notes. It Ismanl.festthat Huber',;

reference to CL% :?:,eld notes was the result of a mistake c,ffact, 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 alteredby subsequentunilateral 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 applieswith equal force to an agreementbetween 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 authoritiesare decisive of themain questionhere under considerat,ion. Whether a aontraot came into existencebetween HuSer and the State upon compliance by Huber with t,hzsales act, in acoordaneewith the holdings in the Jumbo Cattle Company case and the Robison case, supra, OP whether such contract did not eome into being until the acceptanceby the School Land Board of the Huber bid, it is u,nnecessary

to decide. rSredisoussionsof!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-contractwas re,%&e3between 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 leasemust necessarily conCormw!,ththe prior -onSraatbetween 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

andmade. With respect to th+ various specific questionspropounded 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:incethe field nates are inconsistent with the e;rete,b t%y legally form no part of the contract between Huber and t,he State andmust be rejected. (2)That the referencebi Huber in its subsequent assignment to the field notes forms no basis for an estopel because !.tis evident that such refereneewas the result of an innocentmistake. 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 estopelw-1.11

not l,ie.

Ktlehne

v. Benson, 148 Tex. 54, 219 S.W. 2d 1,006,1,008-1~009, j:1.949j 0Hon. Earl Rudder,page 5 (~~-248)

(3) Since the lease, as now drawn, aontains an ambiguous descriptionof the property an amendment correotly descrlblng the property shouldbe executedby the Commlsaioner.(4)The oorreotlveamendment shouldhave the approval of the School Land Board. Article .5&1c-3, 10,V.C.S.

(5)According to the notice for bids the tractwas leased on an "app.roxim&te" acreagebasis. The bonuspaid thereforneed not be adJu?tedunless the Increase in acreage occasionedby 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 trfangleswe are unzhle to determine ,whetherti;e addition thereofw.Z: csIlat-i+.&te an "Y~n?easonable

' Increase.With respect to ?n L*:crease in the payment of rentalsyour attention Z.si,nvl,ted

to Par~-%pb~ 2 ,ofthe leasewherein Huber has agreed to pay T"enua

+-Is rrpm~the actual acreage after the amount thereofhas been de%zmined by a survey acceptable to the Commia~ioner.Thl,so,3fra,ctual provIsion iS controlling (as to rectal,

payments~)

armiif a survey OS the entire area reveal8 'ricet:!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 yeferenoeby 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 shouldbe amended or reformed -t-m2

conformwith suohprfor @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 thereofby the Sahoo& Land Board.

an “a$p5ioZmate”

ere a lease is entered intoupon acreagebasis no adjustment of the bonus pa:d legally is requfredunless the excess In aoreage is unreasonable.The rentalspayableunder the lease Pm question are, a@cording to the zontraot itself, determinable ‘bythe 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