## ~~~~ATTORNEY GENERAL OP TEXAS

PRICE DANIEL ATTORNEY

GENERAL Aun- H. TEXAS

February 12, 1948

Hon. D. C

. Grew Opinion No. V-499. State HighwayEngineer Austin, Texas Re: Theappllcabllity of outstanding mineral reservations and conveyances to iron ore gravel to be used for highway construction andmaintenance under the submitted facts.
Dear Sir:
Thefacts involved In your request stated brlefly are as follows: TheHighway.Department needs a quantity of iron ore gravel for the construction andmaintenance of highways In SanAugustine 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. TheForest Service has granted permlaslon to the HighwayDepartment to open gravel pits upon the lanihtnd remove aa muchgravel 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. demandspayment for the gravel at 73 cents per cubic yard. Thedeed 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 TheLong-Bell LumberCompanyand Long-Bell LumberSales Corporation, dated December 51, 1931, of record In Volume 72, pages 195and 186, respectively, SanAugustine 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 VolumeW, page 423, SanAugustine County DeedRecords; andHon. D. C. Greer, Pclge'2, V-499.

11% All property andmineral rights reservid by Texas LPnd&Cattle Company in deed to JohnH. Kirby, dated July 5, 1902, of record in VolumeW,page 247, SanAugustine County DeedRecords; and
"4. All property andmineral r?ghts reserved in deed from Patrick A. hC8y to E. B. Hayward, dated Januar record in VolumeV, page 48.I 15, 1902, of

, SanAuguStin County DeedRecords; and IfI- 1. All property andmineral rights reserved In deed from P. H.WhiSten tn ;,u:$; L;;iX& LumberCompany,dated Novemof record in Volume 2, page 126, &I A&&tine County DeedRecords: and

“6. All property andmineral rights reserved In deed frw TheT8XaSCompanyto W.R. C?uslns, datkdNovember 24, 1919,of

. record in Volume 55, page 194, SanAugustine

County DeedRecords; and

“7. All property andmineral rights conveyed to the grantee In the deed from the Long-Bell LumbisrCompanyto Long-Bell Petroleum Company,Inc., dated October 10, 1935, of record in Volume 75, tage 547, San Augustine County DeedRecords, Long-Bell Petroleum Company, Inc., acquired the mineral rights from Long-Bell LumberSales Corporation. In that deed the pertinent language was: "DEED FROM LONG BELLLUMBER

SALESCORPORATION TOLONG

BELLMINERALS

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 SanAugustine.Hon. D. C. Greer, Pege 3, V-499.

"together with full rights to explnre, drill, andmine said lands for said oil, gas, andminerals, and to produce and remove the
sametherefrom, and with the rlght of ingress and egress, right of wayeasements 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 wequote: , you have asked twoquesII

. . . will you please 8dvi88 us if the iron ore gravel desired by this Department for highway construction andmaintenance purposes is such a mineral as ~1sCOnfemplat8d by the reservations and conveyances quoted andWhether it Is ownedby the United States Forest Service or by the Long-S811 Petroleum Company, Inc.,

. . .'
Frominformation furnished to us by your Department, weunderstand 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 rGfUS8dby the SupremeCourt 3n January 7, 1948. In that case, two sisters inherited in equal shares three tracts of farm land. Oneof 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 madethere 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? ownfor a peri& of thirty (TO) years from andafter this dat.ean undivided one-half Interest.. in s.ndt.3all of the minerals under the above described three tracts gf land; and it :a understood andagreed that the p,rantTrkll5mAn,h-e-rke’LT-!3 mrt Irss’LWrs

, -+m’L-1 have and she hereby has the right and power to take all t,heusual, necessary and c’3nvenient means for working, getting, drilling for, laying up, dress:.ng, makingmerchantable and taking awaysaid minerals, andalso for the said purposes, or for any other purpose whatsoever, to makeand 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 themfor conveying water to and from manufactory or other buildings. It is further agreed, Stipulated, and under8tood that, at the expiration of thirty (30) years from andafter 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 .?ndgrsvel for a royalty qf 5 cents pey cubic yard. Mll~lysued Julie In trespass t.otry title, cln?m:ng 9 one-half undiv!ded Interest In the sand and gravel on the Krcunds that such :.andand grnvel wore mtnero1.s R’Scontemplated in the mInera reservation obgve quoted. TheTrial Court denied recovery and onappeal 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 cgmmo8vernacular of those dealing in farm lands andmineral 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."
Fromthe language contained in the deeds to the United States Forest Service and from Long-Bell Lumber Se~lesCorporation to Long-Bell Fetroleum Company,Inc., wefind nothing to 1ndLcate any purpose or intention to reserve gravel as a part of the minerals. Webelieve 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 ownedby the United States Forest Service.

SUMMARY

Awarranty 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. Thegrantee 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