June6,1972

The Honorable James U. Cross Opinion No. M-1147 Executive Director Texas Parks andWildlife 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 adrilling rig. In coastal operations when bay bottoms require placement of somematerial to achieve the optimum conditions, shell is customarily laid down inapad as a foundation for adrilling rig, "Normally, the shell involved will have been produced andpurchased from the State at some other location. At the end of thedrilling operation, whether ornot awell is completed, the shell pad is usually left inplace. Evidently, most lessees do not feel that it isworth reclaiming. In the case of a completion, a structure is left to protect thewell head and the shell isavailable in the event thewell needs tobe reworked. Ifno production ismade, the well isplugged 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 notmade.
"Wehave been approached by an individual who now proposes tonegotiate 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 thebottom and theweight of the drilling rig, the shell may have been covered over by bottom sediments orhave been pressed into the bottom. There will probably be occasions when such shellwill 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 revertsto the State?
"2

. Ifyour answer toquestion number one is affirmative, atwhat 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 andWildlife Department? "4. In the event you determine that the Parks andWildlife Department would regain jurisdiction to the shell, would apermit for removal be required, and, if apermit is required, can the department sell the shell?
"5
. Ifyou determine that ownership does not revert to the State, would the party need apermit from this Department to disturb thebay bottoms in accordance with Opinion No. M-84 and other opinions issued by your Office?" The shell used tomake apad for thedrilling barge with its attached derrick and rig to rest upon isunquestionably personal property before it is spread upon the bay floor at theproposed well site, since ithas previously been dredged up, severed from the bay floor andpaid for. The basic question is, does the shell become a fixturewhen redeposited on the bay floor as apad?
-5586-Honorable James U. Cross, page 3 (M-1147)

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

"1 0 .'Whatever isaffixed 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 amatter of course by the conveyance, devise, or decree passing title to the realty."
It is also stated in 25Texas 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 tomake the thing apart of the freehold appears and itsweight is sufficient, because gravity will keep it inplace."
It is also observed in 25Texas Jurisprudence, 2d,page 398, Fixtures, 97, that:

"An important factor tobe 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, orwithout destroying the usefulness of the property to which they are annexed,

. *"
In the case of Jones v,Bull, 85Tex. 136, 19 S.W. 1031 (1892), the question was considered as towhether 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 apart of the realty, a jurymay be so instructed, observing:

II e . .Inthe case ofHutchins v, Masterson, 46 Tex. 554, itwas said that 'theweight of modern authorities establish the doctrine that the true criterion fordetermining 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 inquestion to the realty? (2) Was there a fitness or adaptation of such article to theuses orpurposes 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 theparty 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 theparties interested, the policy of the law in respect thereto, themode of annexation, and purpose or use for which the annexation ismade, And of these three tests preeminence is tobe given to thequestion of intention tomake the article apermanent accession to the freehold, while the others are chiefly ofvalue as evidence of this intention.' See Moody v. Aiken, 50Tex, 74;Willis v.Morris, 66 Tex. 628, 1 S.W. Rep, 799. The question of intention relates to the time-when the landwas purchased and themachinery was originally placed upon and attached to it, and,when so considered, we think every test suggested by the above rules for the purpose ofmaking suchmachinery a part of the freehold was fulfilled. The evidence does not admit of any other conclusion than that the property in controversy was apart of the realty. As thatwas the controlling issue in the cause, and therewas no evidence proper to be considered to ,thecontrary, the court should have charged the jury to find for the plaintiff." (19S.W. 1032)
In the situations about which you inquire, the shell is spread upon thebay floor so as to form a level platform for the drilling barge, derrick, and rig to rest upon. Theweight of the shell, together with theweight of the drilling barge, rig, and derrick, compresses, grinds, and further works the shell farther into the submerged soil.

At this point itwould be impossible to remove the exact shell that had been placed on the bay floor from the other shell, silt, marl, and othermaterial comprising thebay floorwithout materially altering anddestroying the bay floor insofar as it existed immediately before or after the shell hadbeen placed thereon as apad fordrilling barge andwell site. The intent of the parties involved ispresumed tohave been tomake this shell apart of the realty.

We believe that under these circumstances and under the above cited authorities, particularly Jones v. Bull, supra, the shell used forpads fordrilling in the Texas bays for oil and gas -5588-Honorable James U. Cross, page 5 (M-1147)

becomesafixture and attached to and apart of the realty as a matter of lawwhen the shell and the drilling equipment are in place. Any further removal to anew location would be subject to the jurisdiction of the Parks andWildlife Department, and suchparty desiring to remove the shellmust obtain a permit from theParks andWildlife 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 asprovided forby Article 4053, et seq, upon abandonment or termination of the lease.
SUMMARY -- Shell redeposited on bay floors as pads for drilling barges, rigs andderricks 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 amatter of lawwhen the shell and the drilling equipment are inplaoe. Any further removal to anew 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 apermit from the Parks andWildlife'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.,asprovided forby Article 4053, et seq,Vernon's Civil Statutes, upon abandonment or terminat' fpn of the lease.
V truly yours, 

# &

d24k-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)

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