Honorable L, W. Pollard

County Attorney Kerr County Ksrrville, Texas

Dear Sir: Opinion Elumber'O-4939 Re: Whether stihool district may remove building frbm land deeded to dlstrlct for schoolpurposes aft&r abandonment thereof~andreversion to originalgrantor.

We have received your letters of October 19 and 26~, 1942, relative to the above captioned subject. You enclosed therevlth a copy of a letterwritten by you to the Prssldent' of the Board of Trustees of theHarper IndependentSchoolDlstrlct. We quote the following from that letter:

"As requested by you, I have checked into the follovFngproposition. Some fev year8 ago a tract of landwas deeded to the Comirion School District in the Harper area, which ha~5 been taken inland is now a part of the Harper Independent SchoolDlstrLct, This deed has a reversionary clause in it as to the effect that in the event the property so conveyedwas not used for school purposes the title theretowould revert to the original grantors. After that, the propertywas voted Into the Harper IndependentSchoolDistrict by the member8 in the Common SchoolDistrict and is now a part of the Harper IndependentSchool District which takes In a part of Gillespie and Kerr Counties. The property in question being situated inKerr County,Texas.

"As I understand., the property as originally deeded, was vithout any improvementsbut that improvementsfor use were placed thereon by the Common SchoolDistrict before the question of abandonment occurrwd,and the property ts hot now being airectly used for schoolpurposes, although you are storing some equipment in the building, but no active use has been made of the building for the past severalyears by the Independent SchoolDistrict.. . 1

Honorable L. W. Pollard,page #2 o-4939

"Thepropositionyou have submittedto me was whether or not the IndependentSchoolDistrict had a right to remove a building erected thereon by the Common SchoolDistrict. It ismy opinion, although I have found no authorities on this question, that the District would have a right to remove such improvementswhich were placed thereon by the Common SchoolDistrict prior to the abandonment thereof for schoolpurposes. Therefore,~the sole question to be determined in this case, aside from the one mentioned above, iswhether the property has been abandoned for schoolpurposes. The informationyou gave me Is that you have ceased to
use the building for schoolpurposes, but equipment of this nature,which has had no active use, has been stored In this buildlng for a number of gears,

"Inview of the fact, it Is thereforemy opinion that the property has been abandoned for school purposes and the title thereto reverts to the original grantor, togetherwith all the lmprovements situated thereon, save and except suchpersonal propertyyou may have located ln this bulldlngwhich belongs to the Harper IndependentSchool District. As an ordinaryproposition at law, it
seems to be elementary that improvementsbuilt on anotherman's property goes with the property, But In this case, if the Improvementshad not been removed before the abandonment occurred, then I don't think there is any question that the District would have any rights to remove the property. This Is merely cormnon reasoningD"

The question Inwhich you are Interested Is stated In your letter of October 2&h, as follows:

"Whet%r or not the IndependentSchoolDistrict of arper, Texas as a successor of the Common SchoolDistrict, has a right to remove a bulldlng from the propertywhich was deeded to the Common School by Individuals,with a condition, that If the property ceased to be used as schoolproperty, the title theretowould revert to the grantors, their heirs and assigns."

We do not have a copy of the deed for examination,nor do we feel that we have sufficient lnformatlonto pass upon the question of abandonment. We surmise from your letters that there seems to be little doubt among the parties concerned that the property has been abandoned. We think It sufflclent to say that it has been held that the use of a building for the stor-Honorable L. W. Pollard, page#3 o-4939

age of school furniture,books, etc., is not for "schoolpurposes' and does not prevent an abandonment of the property under a deed specifying that the propertywas to be used for such purposes and containinga reversionary clause. See Putney v:SchoolDlst. No. 4 of Town of Brookfield (Wise.), 255 N.W. 76; Richey v. CorralltosUnion SchoolDist. of Santa Crux County (Callf.),228 P. 348. However,~we think that so long as the property Is being used for schoolpurposes, the schooldistrict couldmake such improvementsOP remove the
same as would best serve such schoolpurposes.

We shall now pass to the question of whether a school district may remove the school building after the-propertyhas been abandoned for schoolpurposes and, therefore, has reverted to the grantor. ~Theproperty as orlginallg conveyedwas without Improvements,but the schooldistrict subsequentlybuilt
a schoolhousethereon,

We quote the following excerpts from Texas Jurisprudence, pages 950, 951, and 958:

"School trustees ordinarilyhave the exclusive control and management of schoolproperty and exclusivepossession thereof. In exercising this discretion they may locate and construct district buildings upon such sites,and In accordancewith such plans and s~eclficatlonsas in their judgment seem proper.

'* * *~The laws of Texas, by Implicationat least, require that the exclusive ownershipand control of schoolbuildings of a district shall be In the trustees thereof,"

After an exhaustiveresearch,we have found only one Texas case precisely on the question of the removal of a school house after the abandonment of property conveyed under a deed for schoolpurposes and containinga reversionar T clause thereSuch case IsAllen et ux v, Franks et al. ,'& S.W. 384. W. E. Ref.),

Plaintiffs had conveyed certain property to the trustees of a schooldistrict and their successors,and the deed of conveyance contained the following stipulation: "Conditioned that when the above-described land ceases to be used as school purposes, the same shall revert to us.' Thereaf,ter, with money obtained through contributionsby citizens of the school community a schoolhousewas erected on the property. Defendants
as successorsto the former trustees to whom the deed was executed decided to consolidate the districtwith another district,. -

Honorable L. W. Pollard, page #4 o-4939

to move the house upon another location, and to abandon the land upon which the house was originallybuilt. Plaintiffs instituted suit to enjointhe .removalof the building and alleged that the buildingwas part of the realty, that the land had been abandoned, and that by reason thereof the building as well as the land had reverted to them. It was contended that the contributions for the buildingwere mad,e with the distinct understandingwith the trustees that the buildingwas to remain upon the land permanently,-~ The court, after citingArtlcles 2822, 2844,-~2845, 2847, and 2849,,

R.S. 1911 (Articles 2748, 2752, 2754, and 2756, R.C.S., 19251,denied plalntlffs any relief and h-old that the trustees could remove the school buildingwhen the land ceased to be used for schoolpurposes. We quote the following from the opinion of the court:

"When the fundswere donated for the construction of the building, the title thereto passed to the trustees, and the building erected with such funds became subject to the provisions of the statutesabove quoted. When the contributionswere made for the erection of the building, persons making such contrlbutions must be held to a knowledge of the statutory provisions giving absolute control of the bullding to the trustees and prohibiting the fixin: ;f,a+li:n of any character upon the build-

-a. *
"If,at the time of the erection of the house, the trustees could make it a part of the realty by their intention to make it a permanent lmprovementupon the land, or by erecting the same without forming any Intentionat the time that they or their successors In office might remove it from the land In the event of a decision to abandon the land for schoolpurposes, then they could control the title to the house Indefinitely. Under expressprovision of the statutes title to the house became vested in the trustees and their
successors in office as trustees for those to be benefited thereby 'undersuch FUleB as may be establishedby the state superintendent.' To give appellants'deed the construction lnslstedupon would, in effect,be to say that the trusteeswho received the deed would have the authority themselves to vest in appellants title to the schoolhousewlthout receiving any consideration therefor and would have authority to bind their successors in office to do the same. Clearly, this would not be in the Interest of the patrons of the schoolHonorable L, W. Pollard, page #5 o-4939

and thus deprive them of title to schoolproperty would be a breach of trust and contrary to public policy l * *ll.
'Certainlyitwas not within the spirit or intentionof the statute that thosewho were beneficially interestedIn the building could be deprived of title theretowithout receiving any consideration therefor by any arbitrary act of the trusteeswho erected it,when the purpose of such act was not to subserveany interest of the beneficiaries."

Therewould be even more reason for the court to hold
as itdid If the building had been erectedwith tax moneys.

Other states have reached apparently conf~llcting results. See Steel v. Rural Special SchoolDistrict No. 15 (Ark. Sup: Ct.), 20 S.W. (2d) 316;Webster County Board of Educatlon'v; Gentry (Kg. Ct. App.), 24 S.W. (2d) 910. AN earlier Texas case might be construedas being somewhat inconslstentwith the Allen case. In the case of Stewart, v, Blaln (Clv.App.), 159 S.W. 928, the court had before It for considerationa deed whereby certain propertywas conveyed to the county judgeand his successors In office for the purpose of erecting a schoolhouse for the benefit of the school community. The deed contained a clause "that in the event of the removal of the schoolhouse therefrom" the land should revert to the grantor or his heirs or assigns. A schoolhousewas builtand the propertywas used for schoolpurposes for severalyears; however, thereafter itwas not so used, and the county judge,county commissioners, and school trustees attempted to convey the property to defendant. Plaintiffswere heirs and assigns of the original grantor. The court held, In part as follows:

"It seems to us that these provisionsmean, and were intended to mean, that the grantees should own and use and enjoy the property so long as Itwas so used for the purpose forwhich Itwas conveyed, and that when this condition ceased the title and right of possession should at once revert to the grantor, 'orhis heirs or assigns' +****

'I* * * This sale and the abandonment of the land for schoolpurposeswas to all intent8and purposes 'aremoval of the schoolhousetherefrom'. The building may be there yet, but It IS not a schoolhouse."Honorable L. W. Pollard, page #6 o-4939

However, even though the Stewart case has been cited many times as authority by more recent cases,we feel that we are compelled to follow the Allen case. The Allen case was later in time than then Stewart case, and writ of errorwas refused. Also, the precise questionwas Involved in the'~Allen case, and not In the Stewart case, and if the Stewartcase 13 inconsistent, it Is only Inferentiallyso. Therefore, until the opinion of the court In the Allen case is overruled or altered,we feel that we are compelled to follow the holding thereof.

You are, therefore, ad,visedthat where, under a deed containinga reversionary clause, land has been conveyed to
a schooldistrict for schoolpurposes only and thereaftera schoolhouse is erected thereon, the schooldistrict may remove such buildingwhen the property has been abandoned for schoolpurpose and has reverted under the deed to the grantor.
Very truly yours

ATTORNEY GENERAL OF TEXAS

GWS/s/wc

APPROVED NOV 10, 1942 s/GroverSellers FIRST ASSISTANT ATTORNEY GENERAL By s/GeorgeW. Sparks George.'W.

Sparks Assistant

Approved Opinion CommitteeBy s/BWB Chairman