EA ORNEY GENERAL OF-XAS

March 12, 1962

Honorable James S,Grisham OpinionNo. WW-1273 Criminal DistrictAttorney Canton, Texas Re: Whether a county can lawfully convey the minerals to its grantor on lands acquired for State Highway purposes on grounds of a mutual mistake in acquiring a fee simple title Dear Mr. Grisham: instead of an easement.

Recently our office received an opinion request from you consistingof the letter comprisingyour request and a letter attached thereto, addressed to you and written by County Judge Truett Mayo. Judge Mayo's letter reads in part:

I, Some thirty years past the State and County secured right of way for a State Highway Andyin so doing the right of way deedswere ta{en in the name of the County.
. . . Your opinion request then asks the following question:

"Wherethe County, in obtaining right-of-way easements, does so by acquiring complete fee title by warranty deed, which, of course, includes the mineral rights,whereas it was only necessary and the county only intended to acquire easement over the surface rights for the constructionandmaintenance of roads and the inclusionof themineral rightswas a mutual mistake between the parties: "Underthese conditions,may the county legally reconvey themineral right~sto the former ownership of thee land?" Land acquired by a county in the name of the county for the constructionof Statehighways, is State propertyHonorable James S. Grisham,page 2 (WW-1273)

irrespectiveof the fact that the deed is made out in the name of the acquiring county. The Supreme Court of Texas in Robbins v. Limestone County, 114 Tex. 345, 268 S.W. 915 (1925)reiterated in its opinion this law relating to the ownership of public roads and the control and authority thereover. On page 918, column 1, the Supreme Court said:
But are public roadswithin the borders of a county its property, and is its title and control its own and inherent in it?
'In their very nature and as exercisedby the general sovereignty they belong to the state. From the beginning in our state the public roads have belonged to the state, and not to the counties. This is clearly reflected in the Constitutionand early decisions of this court.
n

. . *
. "Publicroads are stateproperty over which the.statehas full control and authority." (Emphasisadded.) Likewise, the authority to dispose of State lands, including State highway lands, resides exclusively in t e Legislature of the State. 38 Tex.Jur. 633, State of Texas, B Tex.Jur. 46, Public Lands, 6 25. 34; 34

A search of the Texas statutes fails to reveal the enactment of any statuteby the Texas Legislature thatwould delegate the legislativeright to dispose of public land and interests in existingState highways to the County Commissioners Court or any other officers of the county.

In 34 Tex.Jur. 440, Public Officers, 8 67, it is said: "Publicofficers and governmental

and administrativeboards possess only suchpowers as are expressly conferred upon them by law or are necessarily impli:d from the powers so conferred.

. . .Honorable james S. Grisham,page 3. (WW-1273)

State v. Cage, 176 S.W. 928 (Civ.App.,error ref.); Callaghan v. McGown, ,gOS.W. 319 (Civ.App.,error ref.); Eastin v. Ferguscn, '

2 Tex. 643, 23 S-W, 918; Harlingen Ind. School Disk. V. C. 5. Fage & Bra.* 48 S.W.2d 983 (C om.App.); State Line C .onsi:1. ~School Dist. No. 6 v. Farwell Ind. SchoolDist., 38 S.W.2d 61

S"W. 1010 {Civ.App.J;Childress County v. State, 12'( Tex. 343, 92 S.W.2d 1X1; Canales v. Laughlin,m Tex. 169, 214 S.W.2d 451; Hill v, Sterrett, 252 S.W.2d 766 (Civ.App.,n.r.e.).

Since State highways are State property over which the State hapsfull control and authority irrespectiveof whether or not the right of way was acquired in the name of the county or the State, an? since the Legislaturehas enactedno statute authorizing the conveyancesof any interest in an existing State highway by a County CommissionersCourt or any county officers, nei.therthe &County CommissionersCourt of Van Zandt County nor any ether county officials can convey themineral rights of any Stase highw&v

L ts the criginal owners of the land,which land now comprises a part of suchhighway. Therefore,we answer y2u1 question In thenegative, the county cannot legally reconve,ythe mineral .rights,tothe former owner of such lands.

There .does

exist,however, a method by which land not needed for highway purposes and which interest in land was cc,tIntended ts 'belncL'j.;led in the acquiring deed but was i ri CT 1,!.:!3,ed by errormay be returned to the grantor. The method to be emp~icyed

is set out in Article 6673a, V.C.S. Said Article Fr::~vides 'insuch circumstancesthat the Governor of +hls i__,,..-

.: c,+ z,- 3 ;;pona recommendatinnfrom the State Highway Commi,ssicn::?!.a5

he do so,may exenut,e and deliver such correction deed a3 is deemednecessary to rectify and resolve such error.

S?JMMARY The n,.o:z3ty

cannot convey to its original grant:crrs the mineral estate in land to which it has acquired the complete fee simple title by general :,%rranty

deed fz~r

State highway purposes 'bec.suse

of a mlltual

mistake betweer::,r:e

Farties in not excluding theminer31 estate from the transaction.Honorable James S. Grisham,page 4 (W+f-1273)

However, Article 6673a, V.C.S., provides that when an interest in land acquired for Statehighway purposes was not intended to be included in the acquiring deed but was Included by error, the Governor of this State, upon recommendationof the State Highway Commission,may execute and deliver such correctiondeed as is deemed necessary to rectify and resolve the error.

Yours very truly,
WILL WILSON Attorney General of Texas

BY Assistant MR:ljb
APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Thomas Burrus Jack Goodman Leon Pesek w. 0, Shultz
REVIEWED FOR THE ATTORNEY GENERAL By: Houghton Brownlee, Jr.