June 6, 1972 

The Honorable James U. Cross Opinion No. M-1147 

Executive Director 

Texas Parks and Wildlife Re: Ownership and recover of 

Department abandoned shell used as 

John H. Reagan Building pads for foundations for 

Austin, Texas 78701 offshore drilling operations and other relative 

Dear Mr. Cross: questions. 

You have recently requested the opinion of this office 

regarding the ownership of shell used as foundations for oil and 

gas drilling operations in the bays of this State when the drill 

sites are abandoned. Your request reads, in part, as follows: 

"An inquiry has arisen concerning recovery of 

abandoned shell from pads used as foundations for 

offshore drilling operations, This department needs 

your opinion relative to the principles of law involved. 

"Lessees of submerged land tracts, in the 

course of operations or development of oil and/or 

gas resources, require a firm and relatively level 

site upon which to place a drilling rig. In 

coastal operations when bay bottoms require placement of some material to achieve the optimum conditions, shell is customarily laid down in a pad 

as a foundation for a drilling rig, 

"Normally, the shell involved will have been 

produced and purchased from the State at some other 

location. At the end of the drilling operation, 

whether or not a well is completed, the shell pad 

is usually left in place. Evidently, most lessees 

do not feel that it is worth reclaiming. In the 

case of a completion, a structure is left to protect the well head and the shell is available in 

the event the well needs to be reworked. If no 

production is made, the well is plugged and no 

structure remains. 

"1 am informed by personnel of the General 

Land Office that leases are on occasion forfeited 

-5585.- 
Honorable James U. Cross, page 2 (M-1147) 

or abandoned by failure to pay the following 

year's rental, in the event a completion is 

not made. 

"We have been approached by an individual 

who now proposes to negotiate agreements with 

various lessees who may have abandoned such shell 

pads for the purpose of reclaiming that shell. In 

some instances, due to the nature of the bottom 

and the weight of the drilling rig, the shell 

may have been covered over by bottom sediments 

or have been pressed into the bottom. There 

will probably be occasions when such shell will 

have been placed directly on shell which had not 

been previously removed and sold. 

"In light of the above, our questions then are: 

" 1 . Under the facts presented above, does 

ownership of the shell placed upon bay bottoms 

reverts to the State? 

" 2 . If your answer to question number one 

is affirmative, at what point would the ownership 

to the shell revert to the State? 

" 3 . If ownership does revert to the State, 

would such shell be restored to.the jurisdiction 

of the Parks and Wildlife Department? 

"4. In the event you determine that the 

Parks and Wildlife Department would regain jurisdiction to the shell, would a permit for removal 

be required, and, if a permit is required, can 

the department sell the shell? 

" 5 . If you determine that ownership does not 

revert to the State, would the party need a permit 

from this Department to disturb the bay bottoms in 

accordance with Opinion No. M-84 and other opinions 

issued by your Office?" 

The shell used to make a pad for the drilling barge with its 

attached derrick and rig to rest upon is unquestionably personal 

property before it is spread upon the bay floor at the proposed 

well site, since it has previously been dredged up, severed from the 

bay floor and paid for. The basic question is, does the shell become a fixture when redeposited on the bay floor as a pad? 

-5586- 
Honorable James U. Cross, page 3 (M-1147) 

It is said in 25 Texas Jurisprudence, 2d, page 394, Fixtures, 93, that: 

" 1 0 .'Whatever is affixed to the soil belongs to the soil.' Thus, in the absence of a 

reservation, buildings and other articles affixed 

to or used in connection with realty in such a 

way as to constitute appurtenances or fixtures 

pass as a matter of course by the conveyance, 

devise, or decree passing title to the realty." 

It is also stated in 25 Texas Jurisprudence, 2d, page 398, 

Fixtures, 56: 

" . e .Property held in place by the force 

of gravity without any fastening is a fixture, 

provided an intention to make the thing a part 

of the freehold appears and its weight is sufficient, because gravity will keep it in place." 

It is also observed in 25 Texas Jurisprudence, 2d, page 

398, Fixtures, 97, that: 

"An important factor to be considered in 

determining the status of property affixed to 

realty is its removability. Chattels lose their 

identity as personal property where they are so 

annexed to the realty that they cannot be detached without damage to the freehold, or without 

destroying the usefulness of the property to 

which they are annexed, . *" 

In the case of Jones v, Bull, 85 Tex. 136, 19 S.W. 1031 

(1892), the question was considered as to whether property that 

had formerly been personalty become a fixture, and the Court held 

that where evidence does not admit to any other conclusion but 

that property in controversy is a part of the realty, a jury may 

be so instructed, observing: 

II e . .In the case of Hutchins v, Masterson, 

46 Tex. 554, it was said that 'the weight of 

modern authorities establish the doctrine that 

the true criterion for determining whether a 

chattel has become an immovable fixture consists 

in the united application of the following tests: 

(1) Has there been a real or constructive annexation of the article in question to the realty? 

(2) Was there a fitness or adaptation of such 

article to the uses or purposes of the realty with 

-558-i- 
Honorable James U. Cross, page 4 (M-11-17) 

which it is connected? (3) Whether or not it 

was the intention of the party making the annexation that the chattel should become a permanent 

accession to the freehold, this intention being 

inferable from the nature of the article, the 

relation and the situation of the parties interested, the policy of the law in respect thereto, 

the mode of annexation, and purpose or use for 

which the annexation is made, And of these three 

tests preeminence is to be given to the question 

of intention to make the article a permanent 

accession to the freehold, while the others are 

chiefly of value as evidence of this intention.' 

See Moody v. Aiken, 50 Tex, 74; Willis v. Morris, 

66 Tex. 628, 1 S.W. Rep, 799. The question of 

intention relates to the time-when the land was 

purchased and the machinery was originally placed 

upon and attached to it, and, when so considered, 

we think every test suggested by the above rules 

for the purpose of making such machinery a part 

of the freehold was fulfilled. The evidence does 

not admit of any other conclusion than that the 

property in controversy was a part of the realty. 

As that was the controlling issue in the cause, 

and there was no evidence proper to be considered 

to ,the contrary, the court should have charged 

the jury to find for the plaintiff." (19 S.W. 

1032) 

In the situations about which you inquire, the shell is 

spread upon the bay floor so as to form a level platform for the 

drilling barge, derrick, and rig to rest upon. The weight of the 

shell, together with the weight of the drilling barge, rig, and 

derrick, compresses, grinds, and further works the shell farther 

into the submerged soil. 

At this point it would be impossible to remove the exact 

shell that had been placed on the bay floor from the other shell, 

silt, marl, and other material comprising the bay floor without 

materially altering and destroying the bay floor insofar as it 

existed immediately before or after the shell had been placed 

thereon as a pad for drilling barge and well site. The intent 

of the parties involved is presumed to have been to make this 

shell a part of the realty. 

We believe that under these circumstances and under the 

above cited authorities, p articularly Jones v. Bull, supra, the 

shell used for pads for drilling in the Texas bays for oil and gas 

-5588- 
Honorable James U. Cross, page 5 (M-1147) 

becomes afixture and attached to and a part of the realty as a 

matter of law when the shell and the drilling equipment are in 

place. Any further removal to a new location would be subject 

to the jurisdiction of the Parks and Wildlife Department, and 

such party desiring to remove the shell must obtain a permit from 

the Parks and Wildlife Department, Article 4053, Vernon's Civil 

Statutes, so requires. Attorney General Opinions Nos. WW-151 

(1957) and M-84 (1967). It is our conclusion that the Parks and 

Wildlife Department may sell the shell as provided for by Article 

4053, et seq, upon abandonment or termination of the lease. 

SUMMARY -- 

Shell redeposited on bay floors as pads for 

drilling barges, rigs and derricks in the Texas 

bays for oil and gas exploration and production 

becomes a fixture and attaches to and becomes a 

part of the realty as a matter of law when the 

shell and the drilling equipment are in plaoe. 

Any further removal to a new location would be 

subject to the jurisdiction of the Parks and Wildlife Department, and such party desiring to so 

remove the shell must first obtain a permit from 

the Parks and Wildlife'Department to do so in accordance with Article 4053, Vernon's Civil Statutes. 

The Parks and Wildlife Department may sell 

this shell to any party desiring it., as provided 

for by Article 4053, et seq, Vernon's Civil Statutes, 

upon abandonment or terminat' 

fp 

n of the lease. 

V truly yours, & d2 4k-c 

ORD C. MARTIN 

General of Texas 

Prepared by J. Milton Richardson 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

James H. Quick 

Roland Allen 

Harriet Burke 

Bill Campbell -5589- 
. . 

Honorable James U. Cross, page 6 

SAMUEL D. MCDANIEL 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

(M-1147) 

-5590-