Hon. W. L. Edwards Opinion No. V-379 County Attorney Victoria County Re: Ownership of minerals Victoria, Texas in ded.icated parks; and the best bid for mineral lease on county owned land.
Dear’Sir:
ie refer .to your letter of Aue;ust 6, 1947) supplemented by~avery helpful brief received onAugust 16, 1947. Your,fa+ual statement is,: I,

‘gy plet and dedication in the year 1907 a Realty Company,, known.as Burton, Wharton andWilson, laid’ out what is knownas the Bloomington Townsite in this county. Certain, blocks were designated as ‘Parks’
, and the dedication accompanying the plat, stated amongother things:

‘Wedo hereby dedicate to the public all our right, title snd interest aoquired or to begaoquired ‘in and to.the parks, sohool gn,unds, avenues, streets and alleys of said Townas shownby said map.’

“About seven (7) months after the original dedication, C. A. Burton, who had acquired Wharton andWilson’s interest in the said townsite, fi,led anamended map, which designated the sameblooks as ‘Parks,’ and in the dedication accompanying the amended mapappears the following:

‘I hereby dedioate to the public all myrights, titles and interest ac- ,quired or to be acquired not heretofore dedicated in and to the parks, school grounds, avenues, streets and alleys of said Townas shown buythe maphereto attached,

.’. .



### Hon. 3. L. Edwards, Page 2, V-379

“About 1912, the town of Bloomington incorporated and operated under said corporate charter until about the year 1929, when it was abolished as.provided by law, and it is still unincorporated. The corporate limits included said parks.”
Your questions are: *Oil has been discovered on and near the said townsite. The question nowarises as in who holds title to said parks. Incidentally, the parks were never used as such, andthere have been no conveyances affecting the title to the same other than the dedications above mentioned.
*Ihave been unable to find any law specifically regulating the title to such parks by virtue of said dedications. It would, there-

‘fore, appear that the commonlaw 

### Taverns. The most succinct statement of the commonlaw resgulating such dedications that I have been able to find is contained in 16American Jurisprudence 402, Paragraph 56.

“Without reference as to howthe above question is answered, I would also like your opinion as to the construction of Article 5400-A. The county owns the fee title by regular deed to a tract of land. Insascertaininq what constitutes the highest bid, can the Commissioners’ Court take into consideration the potential value of a drilling contract in addition to the regular cash bonus?”

We note your suggestion that no,title maypass by a dedication in the absence of a grantee,. The rule 

### in that regard is stated in American Jurisprudence, Vol. 16, page 356, Section 14, as follows:

*‘Aded,ication does not require the exlstence of acorporation to which it is made or in which the title should vest. Adedication maybe valid without any specific grantee in being at the time it is made.

. . . The interests of those beneficially entitled to eesements or dedications of a public, charitable, or religious character are not allowed toHon. W - L. Edwards, Page 3, V-379

lapse or fail for want of what is teohnioally called ‘a person’ to take the legal title, the public being an ever-existing grantee capable of taking the dedication, ‘”
The rules which pertain to mapor plat dedications are stated in American Jurisprudence, Vol. 16, pages 365 and 367, Sections 22 and 23, as follows:

“Analogous to dedication by deed, and sometimes merely avariant phase thereof, and likewise closely allied to the doctrine of incidents and appurtenances to grants by deed, andto certain doctrines referable to the subjects of easements, private ways, and vendor and purchaser, is the doctrine of dedication by plat or map. Dedication by

. plat or mapis a commonmethod of dedicating streets, public sidewalks, and public parks

‘*Thedoctrine of dedication by plat is frequently~ connected with the sale of lots shown on the plat. The owner of a tract of land is held to dedicate such portions thereof as are designated for publid use on the plat with reference to which he sells. lots out of the traot. The sale of even one lot under these circumstances amounts to a dedication. ”

. . .The rule whioh applies to proprietary rights and titles in parks isstated in American Jurisprudence, Vol. 39, page 809, Section 12, as follows:

nWhere land is dedicated by the owner by a common-law dedidation, a different rule applies. The effect of a dedication of land as a park or square is generally considered to create an easement in favor of the public, oo-extensive with the purposes to which pub110 parks’or squares in such localities are usually applied. Where thare is a corporation to represent the public, and take charge of Its interests, the easement vests in such corporation, which thus becomes the trustee of a US8; the naked fee remains in the original proprietor and hia’ successors in interest.

. . .‘*i

. 

### Bon, 3. L. Edwards, Page 4, V-379



### The **town**

### of BLoomington haolna 

### been inoorporrrted**in** 

### 1912, weaaaume that 

### the dedlaatore sold lots to purchasera, 

### wlth referenaes to the recorded msp whloh oonfelaed a dedication of the perks, streets, eto. in Bloomington. 

### whloh are shown on such **map,**

### and, if that aeeumptlon 

### be true, weare of the opinion that euah pumhaeea oonetituted an aaaeptance of suoh dedlcatlon, whloh then beoame irrevocable.

The caee of Sanborn vs. City of Amarillo, 92 9. W.473 (writ of error’refused), states the rule appLl

### eable in ceaes where a dedioetion of e perk is made by dellneetine: it on amapby refcrenoe t’owhich lots are eold, as follows:

*In this aountry the word 

### *Perk’ wrltten upoa a blook of land represented upon a 

### mapor plan or 

### e olty or town ’is (18

### al@fla8nt of a deQioatlon to the pub110 ae the word ‘Street’ written on suah plan. The popular **end**

### natural meanly OSthe term when 80 wed 1s **a**

### plaae aet apart ror the enjoyment, oomfort, and reoreation of the inhabitants of t,he city **or**

### town in 

### whlah it is looated, end this rignlfloanoe la unequlvooal, and the grantor **in** 

### such lnetanoe can not be heard to say that he entertained adifferent, eeoret intention. And, as will be seen fmm an examination of the authorltlea above, the legal effsot of swh platting, filing, and eelllng with referenoe thereto, ie not varied bP the Sact that the word *Park’ ie preoeded by some quellfylna word, as Worrle Pa**,

‘Annette Pa**, Wsnen Pa,&‘, or ‘Bllwood Park’

. The Uedloetlon, then, belng oomplete and frrevooeble on the pert of Appellant, it beoomer llrmeterlal whether the City of Amarillo ever tonnallg aoaepted the dsdiaetlon, so Ser as its right to mlnteln the dsienss OFdedioation to the Offer to ded

### B

ubllo is oonoerned. Appellant’s oete waa aufflaiently aooepted 

### by the pub110 when some of its lndlrldual members 

### eoted upon the ofier, end purohassd with referenoe to the exhibited maps, Nor could the faota, if proved, 

### that Appellant had rendered the property **for** 

### taxes apd 

### paid taxes thereon es belonging to himself, have ohsnged the result. Belther the city offlalela nor 

### any other public orfiolel would have any 

### power to defeat the right of the publio in property thus dadloeted to pub110 use.”Hon. W. L. Edwards, Page 5, V-379

The’Court, cites the cases,‘of Oswald. vs.Grenet 22Tex. 94; City of Corsicana vs. Zorn, 70S.-W. 924;Lai mar County va. Clementa, 49Tex. 347, andmanyother authorities supporting Its decision. Wealso refer to Seotions 24, 27, 29, 37, 38, 39 under ~~dedioation” in Vol. 14, Texas Jurisprudence, paSes 714, 719, 722, 733, 734.

It Is elementary law In Texas that the fee tltle In a dedicated street Is vested In the abutting owners, subject to use by the public for purposes of free travel and municipal uses, under municipal control; and that the fee title to a park, dedicated to the. public, remains In the dedicator, subject to an~easement In the public for customary perk uses, regardless of the ‘question as to whether the town was Incorporated.

Answering your first question basedcon the faotual situation presented In your letter:

..

The dedication of parks In the town ,of Bloomington by the owners “to the publiov~ are valid dedioations, .although nograntee Is’ named. Whena ,lot was sold by.the dedicator to a purchaser with reference to the mapof Bloomington, such sale and purchase constituted accept- I anoe of such dedicationfor the purchaser and the publio; such dedication then became Irrevoceble by the dedicator. Eidelbaoh vs. Davis; 99S. W. (26) 106~7. such dedioations maybe vacated as provided In Art. 7227 V.CiS., and are subject to abandonment for non-use or If use for park purposes becomes impossible.

Your second question asks for a oonstruotion of Article 5400a, and if a Commissioners’ Court can take Into consideration the potential value of adrilling oontract In addition to a cash bonus.

ArtIole 5400a of Vernon’s Civil Statutes appears In the Acts 1937, 45th Legislature
, Chapter 279, as follows:

**AnAct authorizing political subdivisions of the State of Texas to lease lands owned by such subdivisions for mineral development purposes and prescribing the ~method ana manner of‘making suoh leases, anddeclaring an emergen0.y.
*Be It enacted by the Legislature of the State of Texas:,,.

. 

### Hon. W.L. Ldwaraa, Page 6, V-379

wSeotfon 1. Political subdivisions which are bodies oorporate with reaognized and deflnad areas, are hereby suthorfzea to lease r0r 

### mineral development purposes eny end all lands whloh maybe owned by any such political subdivision.
Yea. 2. The right to lease suah lands shall be exercised by the governing board, the aouunisslon or commlsaloners of such political subdivision whioh are by law aonstitutea wlth the management, control, and supervision of such subdivision, sandwhen in the discretion of auah governing body they shall aetezmira tha.t Lt la advisable to make a lease of any auoh lands belonging to such district or sub-’ division, such governing body shell give notlce,ot Its lntentlon to lease suoh lands, deaoriblng same, by publlaaffon of auoh n,Ofice in some newspaper published in’the oounty, having a

### general olrculation therein, onae a 

### weak ror a period or thres (3) oonaeoutlrs weeks, dsalgnatlng the tl’iue and plsoe after auoh’publloation where suoh gov,erning body will receive and oonslder bids for such mineral leasea as auah govern1 2 body maydetermine to make. Onthe date sbeo ‘fled in said notloa, such governing board or body shall reoelvs and 

### abnsider any and all blaa s,ubmltted for the leasing of said lands or any portions theraod which are advertised for leaalng, and in the dlacretion of such governing body shall award the lease to the highest and best bidder, submitting a bid therefor, pmvlded that if in the submiudgment of such governing body the blda tted do not represent the fair value or such leaaea, suoh governing body in their dlsoretlon msy reject same and again give 

### notloe and call for additional bias, but no leases shall In any ‘event be made exoept upon pub110 ’ hearing and aonsideretlon of said bids and af- ter the notioe as herein provided.
Yieo. 2a. Provided that all auoh leases my be

### granted by pub110 auction and that no leases shall be executed in any oaae exoept and unless the lessor shall retain at least one-eighth royalty, provided further that In no ease shall the primary term of aaid lease. .

Hon. W. L. Edwards, Page 7, V-379

be for more than a period of. ten (10) years, ~.>‘!.:~ from the date of execution and’approvai there\,;~i”“’ of. !.,;I

“Sec. .3. The’fact that political subdi-’

-’” vIsIons of the State have ,lands owned, held, and used for public purposes but which purposes will not be hindered or Interfered with by the development of said ‘lands ‘for mineral, purposes, andthat some of said l,ancls*have. possibilItIea of mi’nerals therein and that development of said lands for mineral purposes Is necessary In order to conserve said mineral estate Andy’ prevent the loss thereof, create an.emergency, : and,an imperative public necessity that the Constitutional Rule requiring bills .to be read on three several days in’eaoh House be suspended and said ,Rule Is hereby suspended; ~~and’thfe ,Act shall take effect ~%ndbe Inforce from and.ifter ,ita passage, andrit, isso ’enacted;‘!

.’

,,. , ‘

. There Is no requirement In the~law that ‘the consideration for amineral lease shall be cash. The pertinent provisions In Secti,ons 2and Ra,aie.,n;;‘

. . Onthe date specified In said notioe, such ~governing aboard or body shall receive and conaider ‘any e~rid ‘a,lllbId,s submitted ~for the’leasing of said lands or any portion thereof which are advertised for leasing, and In the,discretIon of such governing body shall award the lease to the highest and best bidder submitting a bid therefor.

. . Noleases shall be executed in any case except and unless the lessor shall retain at least one-eighth royalty.” Th.eonly limitation on the discretion of the Commissioners1 Court in that regard Is that the royalty shall not be less than one-eighth.

In lt. ‘G,~Wilmot ‘Coal Co. v. State Purchasing Cosimlssion,, ,54,; S. W. (2d) 634, 86A.L.R. 127, It Is held that in determining who Is‘the “lowest and best biddernthe. purohasing commission must consider not only the amount of the bid, but also business judgment, capacity, skill, I!+ sgons ibility of bidder, and qua1ity of goods proposed to* be furnished

. (Emphasis’ added)

Weare of the opinion that Article 6400a of Vernon’s Civil Statute& requires that the Commissioners’ Court exercise Its discretion In passing on the question as to what constitutes the highest and best bid for amineral lease, which bid maybe an offer of aroyalty based on a fractional part of mineral produced ,from the land to be leased, or Mayo be for part cash plus a royalty of not less than one-eighth of such production. The Commissioners’ Court Is authorized to consider all of the circum-1..

.



### Don. W.L. Edwards, Page 0, 

### V-379

stances and, In its discretion, decide whether potential prospects of 

### discovery of 

### mlherela and the value of 

### a drllllng contract with a lessee aa dlatlngulshea from an

“unless lease”, whloh authorizes extenalona by

### payment of rentals, will be ln the interest of the county. SWARY
DedlostIOn of a perk to the public **doea** 

### not require a grantee, and if made upon a recorded map of a townsite, ssle of lots in suah 

### townslte by the dedicators, with referenoea to suoh map, constitutes aoceptanae of suo,h dedlcation onbehalf of such purchasers and also on behalr of the public, which thereupon becomes 1rravoaabl e. Such dedloatlon and aoceptanoe oreate separate easements ,for oustomery park uaea 

### in the publio and also in auoh lot purchasers, with the fee title rermlnlng in the aealaator. Suoh a dedication maybe vacated aa to the publla aa provided ln Art. 7227, V. C. 8., 

### Eldelbaah t. Davis, 999. W. (2d) 1067.



### The deolalon aa to what conatitutsa the 

### highest and beat bid, aa used in Artlole 5400a. 

## V.C.S.,ror e 

## i$l;~mtt he

. mlnerai lease Ofcounty owned 

### Iand aound diearetion or the CommiaafonYours 

### very truly

W. T. 

### Willfame Asrrirtmt

ATTORNEYGEiitRhL mw:wb:jrtl