~~~~ATTORNEY GENERAL 

OP TEXAS 

PRICE DANIEL 

ATTORNEY GENERAL 

Aun- H. TEXAS 

February 12, 1948 

Hon. D. C . Grew Opinion No. V-499. 

State Highway Engineer 

Austin, Texas Re: The appllcabllity of outstanding mineral reservations and conveyances to 

iron ore gravel to be used 

for highway construction 

and maintenance under the 

submitted facts. 

Dear Sir: 

The facts involved In your request stated brlefly are as follows: The Highway .Department needs a quantity of iron ore gravel for the construction and maintenance of highways In San Augustine County. This material 

can be found upon a certain tract of land presently owned 

by the United States Forest Service, which acquired the 

land subject to speclflc mineral reservations hereinafter 

quoted. The Forest Service has granted permlaslon to the 

Highway Department to open gravel pits upon the lanihtnd 

remove aa much gravel as required free tif charge. 

present mlneral owner, Long-Bell Petroleum Cgmpsng, Inc., 

claims under the above-mentioned mineral reservations 

that the gravel la a mineral and as such belongs to It; 

and the Long-Bell Petroleum Company, Inc. demands payment for the gravel at 73 cents per cubic yard. The deed 

acquired by the Forest Service from’long-Bell Petroleum 

Company, Inc., contained the following exceptions and 

reservations: 

“1. All property and m?neral rights 

conveyed to the grantee in the deeds from 

The Long-Bell Lumber Company and Long-Bell 

Lumber Sales Corporation, dated December 51, 

1931, of record In Volume 72, pages 195 and 

186, respectively, San Augustine County Deed 

Records; and 

“2 . All property and mineral rights 

reserved in deed from A. F. Kountze to 

David L. Gallup, dated July 18, 1902, of 

record in Volume W, page 423, San Augustine 

County Deed Records; and 
Hon. D. C. Greer, Pclge '2, V-499. 

11% All property and mineral rights 

reservid by Texas LPnd & Cattle Company in 

deed to John H. Kirby, dated July 5, 1902, 

of record in Volume W, page 247, San Augustine County Deed Records; and 

"4. All property and mineral r?ghts 

reserved in deed from Patrick A. hC8y to 

E. B. Hayward, dated Januar 

record in Volume V, page 48 .I 

15, 1902, of 

, San AuguStin 

County Deed Records; and 

IfI- 1. All property and mineral rights 

reserved In deed from P. H. WhiSten tn 

;,u:$; L;;iX& Lumber Company, dated Novemof record in Volume 2, page 

126, &I A&&tine County Deed Records: 

and 

“6. All property and mineral rights 

reserved In deed frw The T8XaS Company to 

W. R. C?uslns, datkd November 24, 1919, of 

. record in Volume 55, page 194, San Augustine 

County Deed Records; and 

“7. All property and mineral rights 

conveyed to the grantee In the deed from 

the Long-Bell Lumbisr Company to Long-Bell 

Petroleum Company, Inc., dated October 10, 

1935, of record in Volume 75, tage 547, San 

Augustine County Deed Records, 

Long-Bell Petroleum Company, Inc., acquired the mineral 

rights from Long-Bell Lumber Sales Corporation. In that 

deed the pertinent language was: 

"DEED FROM LONG BELL LUMBER SALES CORPORATION 

TO LONG BELL MINERALS COKPANY 

"has granted, sold and conveyed and by 

these presents does grant, sell and convey 

unto the said Long Bell Minerals Corporation 

all of the oil, gas and other minerals of 

each kind or character, on, in and under,flnd 

that may be produced from the fgllowing descrlbed tracts, or parcels of land situate in 

the County of San Augustine. 
Hon. D. C. Greer, Pege 3, V-499. 

"together with full rights to explnre, 

drill, and mine said lands for said oil, gas, 

and minerals, and to produce and remove the 

same therefrom, and with the rlght of ingress 

and egress, right of way easements and servltudes, for pipe lines, telephone and telegraph 

lines, tanks, power houses, stations, gaseline 

tanks, and fixtures for producing, treating 

and caring for such products, and all rights* 

and privileges incidental to the rights hereinabove specifically granted and reasonably 

necessary for the economical operation of 

said land for the production of said minerals." 

Based upon these facts 

tlons which we quote: 

, you have asked two quesII 

. . . will you please 8dvi88 us if the 

iron ore gravel desired by this Department 

for highway construction and maintenance purposes is such a mineral as ~1s COnfemplat8d 

by the reservations and conveyances quoted 

and Whether it Is owned by the United States 

Forest Service or by the Long-S811 Petroleum 

Company, Inc., . . .' 

From information furnished to us by your Department, we understand the term "iron ore graOe1" to mean 

ordinary commercial gravel which does not contain iron ore 

of such content as to be valuable commercially for such 

ore. Our opinion assumes the correctness of this lnformatlon. 

This same question involving almost identical 

facts was recently before the Court of Civil Appeal8 at 

Austin in the case of Psenclk v. Wessels, 205 9. W. (2d) 

658. Writ of error was rGfUS8d by the Supreme Court 3n 

January 7, 1948. In that case, two sisters inherited in 

equal shares three tracts of farm land. One of the slsters, Mllly, conveyed by warranty deed her one-half lntereat to the three tracts to the other sister, Julie. The 

deed contained the following reservations: 

"Out of the grant hereby made there is, 

however, excepted and reserved to Mllly Psenclk, 

grantor herein, her heirs and assigns, for a 

period of thirty (30) years from and after thls 

date, a one-half interest in and to all mines 

and wells of, and 811 minerals of whatever description, be the same gaseous, liquid, or solid, 
Hon. D. C. Greer, Page 4, v-499. 

in and under the lands hereinabove descrl.bed ; so that henceforth, grantor herein 

shall have and continue t? own for a peri& of thirty (TO) years from and after 

this dat.e an undivided one-half Interest.. 

in s.nd t.3 all of the minerals under the 

above described three tracts gf land; and 

it :a understood and agreed that the p,rantTr kll5mAn, h-e-r ke’LT-!3 mrt Irss’LWrs , -+m’L-1 

have and she hereby has the right and power 

to take all t,he usual, necessary and c’3nvenient means for working, getting, drilling for, laying up, dress:.ng, making merchantable and taking away said minerals, 

and also for the said purposes, or for any 

other purpose whatsoever, to make and repair wells, mines, shafts, tunnels, plpelines and drains, in, upon, Into and beneath such lands, and to lay and repair 

pipes under, upon or above them for conveying water to and from manufactory or other 

buildings. It is further agreed, Stipulated, 

and under8 tood that, at the expiration of 

thirty (30) years from and after this date 

the title to an undlvlded one-half Interest 

in mlnern1.s as!‘reserved herein to grantqr 

shall cease and thereafter the entire fee 

simple title to all of said land, particularly 1nclud;ng the mineral rights heref~n 

reserved t shall be in grantee, her heirs or 

assigns. ’ 

Afterward Julie leased the property for sand .?nd grsvel 

for a royalty qf 5 cents pey cubic yard. Mll~ly sued 

Julie In trespass t.o try title, cln?m:ng 9 one-half undiv!ded Interest In the sand and gravel on the Krcunds 

that such :.and and grnvel wore mtnero1.s R’S contemplated 

in the mInera reservation obgve quoted. The Trial Court 

denied recovery and on appeal the Austin Court. of Civil 

Appeals concluded after a thqrouEh dIscussi% of authorities: 

“Xt is a mntter gf c3rnrn-x knowledge 

that. where those subjects are dealt with 

they are referred to speciflcally (8. g. 

see GRntt v. McClellan, Tex. Clv. App., 

252 S. W. 229, 235, error refused) and 

that in the cgmmo8 vernacular of those 

dealing in farm lands and mineral rights 
. 

. 

Hon. D. C. Greer, Page 5, V-499. 

the term 'minerals' does not include ordlnary commercial gravel. It might as well 

be held to include fertile top soil, which, 

under conditions arls!ng subsequently to 

the grant, should become commerclallg valuable for replenishing lawns in an adjacent 

city, or other sol1 for filling lets or 

building roads. It would serve no useful 

purpose to analyze the specific provisions' 

of the reservation in question. Its terms 

do not indicate or suggest that sand or 

gravel Is included." 

From the language contained in the deeds to the 

United States Forest Service and from Long-Bell Lumber 

Se~les Corporation to Long-Bell Fetroleum Company, Inc., 

we find nothing to 1ndLcate any purpose or intention to 

reserve gravel as a part of the minerals. We believe that 

the decision in the above-quoted case of Psenclk v. Wessels, answers fully the questions involved in your request. 

It ls,.therefore, our opinion that this gravel is not lneluded in any of the reservations mentioned. It 1s further 

our concluslm that the gravel 1s owned by the United States 

Forest Service. 

SUMMARY 

A warranty deed reserving "all of the 

011, gas and other minerals of each kind or 

character, on, in and under, and that may 

be produced from (the land conveyed) . . .' 

does not include gravel within its meaning. 

The grantee In such deed is the owner of 

the gravel unless there Is qualifying language specifically showing an intent to reserve the gravel. Psenclk et al. v. Wessels 

et al., 205 S. W. (2d) 658, (Civ. App.,1947, 

writ ref'd.). 

Very truly yours 

APPROVED: ATTORNEY GBI?ERAL OF TEXAS 

ATTORNEY GENERAL. Charles E. Crenshaw 

Assistant 

CEC :jmc