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 ~a very helpful brief received on August 16, 1947. Your,fa+ual statement is,: I, 

‘gy plet and dedication in the year 1907 a 

Realty Company,, known. as Burton, Wharton 

and Wilson, laid’ out what is known as the 

Bloomington Townsite in this county. Certain, blocks were designated as ‘Parks’, and 

the dedication accompanying the plat, stated 

among other things: 

‘We do hereby dedicate to the public all our right, title snd interest aoquired or to beg aoquired ‘in 

and to .the parks, sohool gn,unds, 

avenues, streets and alleys of said 

Town as shown by said map.’ 

“About seven (7) months after the original 

dedication, C. A. Burton, who had acquired 

Wharton and Wilson’s interest in the said 

townsite, fi,led an amended map, which designated the same blooks as ‘Parks,’ and in the 

dedication accompanying the amended map appears the following: 

‘I hereby dedioate to the public all 

my rights, 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 Town as shown buy the 

map hereto 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 now arises as in who 

holds title to said parks. Incidentally, the 

parks were never used as such, and there 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 common law Taverns. The 

most succinct statement of the common law resgulating such dedications that I have been able 

to find is contained in 16 American Jurisprudence 402, Paragraph 56. 

“Without reference as to how the 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. Ins ascertaininq 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 may pass 

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: 

*‘A ded,ication does not require the exlstence of a corporation to which it is made or 

in which the title should vest. A dedication 

may be 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 to 
Hon. 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 map or 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 a variant phase thereof, 

and likewise closely allied to the doctrine 

of incidents and appurtenances to grants by 

deed, and to 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 map is a common method of dedicating 

streets, public sidewalks, and public parks 

‘*The doctrine 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 tha re 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, we aaaume that the dedlaatore sold lots to 

purchasera, wl th 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, we are 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 appLleable in ceaes where a dedioetion of e perk is made by 

dellneetine: it on a map by refcrenoe t’o which lots are 

eold, as follows: 

*In this aountry the word *Perk’ wrltten upoa a blook of land represented upon a 

map or 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 OS the 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 a different, 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 OF dedioation 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 

22 Tex. 94; City of Corsicana vs. Zorn, 70 S.-W. 924;Lai 

mar County va. Clementa, 49 Tex. 347, and many other authorities supporting Its decision. We also 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 no grantee Is’ named. When a ,lot was sold by .the 

dedicator to a purchaser with reference to the map of 

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; 99 S. W. (26) 106~7. such dedioations may be 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 a drilling 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: 

**An Act 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, and declaring 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 may be 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, sand when 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 may determine 

to make. On the 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 

sub mi 

udgment 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, 

and that 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 ~%nd be In force from and .ifter 

,ita passage, andrit, isso’enacted;‘! .’ 

,,. , ‘. 

There Is no requirement In the~law that ‘the 

consideration for a mineral lease shall be cash. The pertinent provisions In Secti,ons 2 and Ra, aie.,n;;‘. . On the 

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. . . No leases shall 

be executed in any case except and unless the lessor shall 

retain at least one-eighth royalty.” Th.e only 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, 86 A.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 qua1 ity of goods proposed to * 

be furnished . (Emphasis’ added) 

We are 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 a mineral lease, which bid may be an offer of a royalty 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 on behalf of such purchasers and also on 

behalr of the public, which thereupon becomes 

1 rravoaabl 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 may be vacated aa 

to the publla aa provided ln Art. 7227, V. C. 8., 

Eldelbaah t. Davis, 99 9. 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 Of county owned Iand 

aound diearetion or the CommiaafonYours very truly 

W. T. Willfame 

Asrrirtmt 

ATTORNEY GEiitRhL 

mw:wb:jrtl