R-148

OFFICE OF 

# THE ATTORNEY GENERAL

AUSTIN, TEXAS

pRICE DANIEL March 6, 1347 *TTTORNEY CEXEHAL

Hon. Ernest 0. Thompson, Chairman Railroad Commission of Texas Austin, Texas Opinion No. V-74

Re: Application ofAttorney General's OpinionNo. 0-318i dated March 24, 1941, to facts of pending Rule 37 case inHawDear Sir: kins Townsite.

This Is in response to the request contained in your letter of February 10, 1947, for an opinion of this officewhether the general rule set forth In answer to question "9" of AttorneyGeneral's OpinionNo. 0-3181, dated March 24, 1941, applies to the facts of a pending Rule 37 (well spacing) case Involving lands in theRawkins Townslte.

In answer to question "g", this officeheld in Attcrney General's OpFnionNo. 3131 that as a general where an individual owns lands on each side of a c street or road "dedicatedas such (for)many yeaw", ol;nershlp

extends to the minerals under the street or To quote from the opinion:

"A conveyance of a lot bordering on a streer,or alley ordinarilypasses title to the center of the street or alley, subject to the public's easemen,, + unless a contrary intention is expressed in plain and unequivocal terms. * * * Since the two iots and the street together constitute one continuous tract, so far as the ownership of the minerals iu concerned, the street acd the two lotsmust be considered together in determiningwhether "A" Is entitled to a permit to drill a well to precrnt ,tke

confiscation cf his property."

You hsve underscored thet por%ion of the oplnion pointing cut that:

.--._l--l_l-.--., --. .._ ._.__ -,-- __..... ~.~~

~-~~Hon. Ernest 0. Thompson - Page 2,V-74

"'Itxceptional

cases my &rise where the grantor did net own any interest in the land coveredby the road or street,and in such cases, of CGurse, the purct4ser of the lotwould not by such conveyance acquire any title in the land coveredby 'the road or street."

The rule of the Atts~neg Genfr:~l '3 CY~~E?~::Y~ Of ME!Xk 2&, 1941, 6ss1.lrne3 i.mport&xe I..il thn f;?..?ta?<,

case in determiningwhether the Commis-lcn'srule agai.nst

3ubdivFsloti3 cfMay 29, 1934, zpplLesA The Commission's spec,lng rrllefor the Hawkins Field, 8~3 the rule against subdislsfonsprovide:

"Nowell shallbe drl.114hereafter for oil and gas c,r

either of them nearer than ninehundred thirty-three (933)feet to any other completed or drilling well on the same or adjoi.ning tract or farm, and
no well shall be drilled nearer than four hundred sixty-six (466) feet to any property line, lease line or subdivision line;provided that, subject to the further provisTonshereof, the Commission, 'fnorder to preventwaste or to prevent the confiscation of property,will grant bxce ons to ermL drillingwithin ~~~~~~~~s4"~~~1~~a~~~~~

that such exceptIons are necessary either

,O preventwaste or to prevent th ,e con- ??i.scatlon

ompropsrtv. * * *"(E mphe.5 is xupplled)

"IT IS ORDEREDby the Railroad Commlscion

of TexE3, that IG applying Rule -17',Sraclng Rule) of State-wideapplicatfon an% in applying every rulewLt'nrelatl.oc to spacgng In every field in this State, no subdivision ofproperty made subsequent to the ;?doptionof the original spacing rulewrll be cona13e:red In determl,nl.ng whefhe.ror no?,

eny property is being con-, Pis'cs?.ed

withlr:t;li~

terms of such~spaein~; ruie, a~6 r.,o

~u':);ii~~~~l,s:on

of prapertyFi,ll be regarded i!?~

epplying such spacing rule 0.~1-n rt~.te:rmPn~.~m

r.he matter of"

cc~nfi~sc6-~ .~/ tion L:'such sn'bdfvision took pl&ce subse,'..Hon. Ernest 0. Thompson,Page 3, V-74

quent to the promulgationand adoption of the original spacing rule.”

In the case pendingbefore you, applicant's lessor owns Lots 9 and 10 in Block 7 of the Hawkins Townsite, the land uponwhich a well permit is applied for under the confiscationexception to the spacing rule, and also owns one and a fraction acres of land directly north of appiicant's tract,but separated from applicant's tract by a public street or road of the Town ofHawkins, known as Forest Avenue. The two tracts of land north and south of Forest Avenue were leased separetely by applicant's lessor to different lessees. Lots 9 and 10 combined are too small to permit drillingwithin the distances from lease lines set forth in the spacing rule. Applicantand his lessor claim !-Lot o own the land underlyingForest Avenue,and therefore claim to be entitled, under the confiscation exception to the spacing rule, to at least onewell permit on combined lots 9 and 10 under the well establishedrule ofDailey v. Rail

### i-cad Commission, 133 S.W. (2d) 219, writ refused, and
numerous other cases, so holding.

Those protesting the granting of the well permit contend,
**1s** on the otherhand, that since the applicant's -,e-sor owns land on each side of Forest Avenue, the general rule announcedby the Attorney General's OpinionNo. G-.XlSl,

question 9, applies so that when the applicant's lessor leased tine tracts north and south of Forest Avenue separately to different lessees, the Commission's rule ofMay 29, 1934, against subdivisionswas infringed. As YOU know. it iswell settled that no subdivision lessee is entitledas a matter of right to a well permit under the confiscation exception (RailroadCommission v, Miller, 165 SW. (21) 504). In such cases it is the Commission's duty to ente&iln.sn application upon the entire land
area as it existedprior to subdivision,and to locate the well u~pon

that portion of the entire tract as tnagbest comportwith conservationpractices. See AttorneyGeneral's OpinionNo. o-7046-~, dated March ?, 1946.

The general rule set forth in AttorneyGeneral's Opinion No. C.,31?1, is, as statedby the court in Gold- ---- smith v. Humble 011 & Refining Company (Texas' Supreme Court, Februarvm>T4'/, unreportedas yecI-.):

11** fbased upon theweil established general rule applied in Rio Bravo Oil Company -U

.Weed, 121 Texas h27, 50 S.W.Hon. Ernest 0. Thompson - Page 4,V-74

2d 1030, whichwas f'ollowed in later declIsions,

thatwhen a conveyance i3 made of a lot or a tract cf landabutting upon a street orhighway, the fee to which belongs tc the owner of the abutting land,a presumption Is indulged that the grantor intended ro convey the fee to the cen~terof the street orhighway, or all of it depending .u~on

the circumstancesunless
a controrv intentlou is shown., cox v ~~ampje11,v135 Texas 423, 143 S.W. 2d 361; Cantleg v, Gulf ProductionCo., 135 Texas 339, 143 S.W. 2d 912." ,~
The rule,hasbeen termed "a rule cf constriction, and not an absolute rule of law", 11 C.J.S. 5S2, B 35, to determine the intention of the parties to conveyances. There are many qualifications to the rule, one of which, as pointed outby thewriter of Opinion No. O-3181, is that the grantor to the deed must have owned the land covere.3 by the road or street at the time of his ccnveyance, or else title tc such
area could not pass to the grantee. Day v. Chambers, 62 Tex. 190,Roberts v. Shell Pipeline Corporation, 175 S.W. (2d) 106. From the recent opinion of the Supreme Court in the Goldsmith case, it is apparent~ ' that there are other qualifications. In order to raise the presumption, the deed or conveyance must make reference to a road, passageway, or alley (orpossibly to a map orplat shoving a road, passageway, or alley); and, as statedby ths Count:

m easaent at the time when-&e deed-.Ls_. made. We have-& no case aon&j-ng-&.epresumptionwhen the conveyencemake3 no reference to a highway, street cr pa3sageway and when, at the time the deed is executcd, tie an '---i-- w not bounded2 3 t-A~;hw~a~,

streat orpassageway inwhich sz easementhas been created or acquired.' .-.- T,E~?i s sup~iied)

l'%e Court then proceeded to holedthat since no street, reed, or alley was shown to have existed in l?&Hon. Ernest 0. Thompson, Page 5,V-74

when the land in questionwas conveyed, therewas no occasion to indulge the presumptionmerelybecause a streetor alley was shown to have existedat a later date. In reaching this result the court relied upon the authority of Raleigh-HaywardCo. v. Hull, 167 Wash. 39, 8 Pac. mL' ,Li). that case although the landwas conveyedby lot and bnlocknumberby reference to a plat showing the street area in question, it waa held that since the streetwas not I.nexistence at the time of the conveyance,no title to the street
area nassed to the grantee. This rule is alao stated in ll*CorpusJuris Secundum, g 35 at page 5:34; and see
hx Brothers, 65 S:~.ii~d~'~~7~3;?~,"tn~,~~,- Perr v. Ball, Tex. Civ. App

e

.
From the foregoingwe gather that to support the presumption of title statedas the general rule In OpinionNo. O-31,%, the followingmust appear: (1)That the grantor owned the land beneath the road, street,or alley at the time of the conveyance; (2) that the deed refer to a road, street, or alley, or to a plat showing an abutting road, street, or alley; (3) that the road, street, or alle the conveyance; and .( $ be in existenceat the time of ) that it is the first conveyance by a ~grantorof his landbordering on a road, street,
or alley; the fee to which is also ownedby him, that controls, and not subsequent conveyances. With these rules in mind we shall review the factswhich are before you a3 we have from your files 31,5 4, fi athered them from your letter and 31,6&2, 32,180, 32,747and 32,747-A.

, In lo;70

J. P. Blackburn and wife conveyed 320 acrea of land in the Brewer Survey,Wood County, Texas, to A. A. Bleckburn and wife. Of this 320 acre8 A. A. Blackburn and wife thereafterconveyed 90 apres to the Texas 8;Pacific Railway Company in 1873~ Sometime after that date, the exact date not being shown, the Texas & Pacific Railway Company platted, or endeavored to plat, the 90 acres into lots,blocks, and streets as the Townslte ofHawkins. The reason that the exact date of the platting of the Hawkins Townsite is not in evidence, it appears, is that the Courthouse at Wood County burned in December, 197?, and all records
were deatroyedL The oniy presently recordedplat of the Townaite IS one fiie3 for recordby the Texas & Pacific Railway Company in the year 1909. The reason It is stated thst :he Texas & PacificRailway Company 'Iendeavored to plat the ninety acres" Is that it appearsHon. zrn.e3t0. Thomp3xi -' Pagt.5,V-7Q

The 90 acres conveyed to the railway In l?sj cane out of the Southeast quarter of theBrewer Swveg , the north bcundsrjrline ofwhich quarterwas toe north boundary line of A-A.Blackburn's 326acre tract. The conveyance to the Reilway Companv by Slackburn of the 9O-ar:re tract did not follcw this north boundary line,however,but ran to the south thereof,~leaving inBlackburn a triangular tract of approximately 5 acres bounded by the north-west line of the Texas and Pacific Railway Company go-acre tmct, by the easternboundary line of theEleckburn tract, and by the northernboundary line of the original 320-acreBlackburn tract. Within this triengular 5-ec,retract lies the applicant's tract and Forest Avenue, separatinghis other lends to the north.

It 1,s contendedby the protestant that 3om9-

**tlrne after**  the criginal. dedicationp&t of the Texas & Pacific Railway Company wes filed (the date ofwhich la net shown in evidence), the Rsilwey Company sold Lots 3 and 10 ofBlock 7, oppl.i.eantVa tract to aoaecn?. To quote from proteatantPsmoticn for rehe%rio~g, your file NO+ 31,642:

'Petitionerdoe3 not k-ncvtile ex‘5ct deite cf this conveyancenor to whcm it wan made, since the deed records ofWood Coi:nQ, Taxes containing the record of the deed were deatrcyCd b:?I"iI?t?.

This deed under the lwcrsof Tsxtis opertited

to convey the fee title to that port:ion of Forest Street abutting (Lots I! and lo), to the grantee subject to the easement in fever of the public*"
Applicant, on the otherhand, proved that **L&s** 9 and l@ came to his lessor in e chain of title.,from C. A.Rsrgett and his wife, B. L. Hargett, under a deed, of. fared in evidence, dsted February 21, 1896. It we3 uncontradicted that "B.L.Rergett" was Beuleh L. Bargett, the daughter of A.A. Blackburn and wife, Jane E. Black- &-n. Applicant therefore contended that since therewk.1 nothing in the record to show that theKargetts acquired title to Lots 9 and 10, Block 7, from the T. & P., it ?!yet be assumed that titlewas acquiredby Ers. ISrg'trHon. Ernest 0. Thompson - Page 

### 7,V-74

by descent or by will fromher father,A.A.Blackburn. Parenthetically, It is the writer's opinion that it would be more logical to assume thatBeulah Blackburn Rargett acquired the property eitherby descent or devise from her father than it would be to assume that her father sold the property to the T. & P. Railway Company who then in turn sold to his daughter.

The date of A. A. Blackburn's deathwas not shown; norwas the existence of a road, street, or alley shown at such time or at any timebetween the year 

### 1873 (whenBlackburn conveyed the go-acre tract,to the T. & P. Ry. Co.) and 

### 1896 (whenMrs. Hargett conveyed the property to a grantee in applicant's lessor's chain of title). The first date proved of the existence of Forest Avetiue,

or any street, read, or alley in Its place is the year 1909when the Railway Company filed Its plat ofttheHawkins Townslte showingForest Avenue. In this connectionwe quote from your letter:

"No evidence Is found in the record that ' Forest Avenue was in fact a street in 

### 1896or at any time previous thereto."

Based upon the record made in the case, we have concluded that the facts necessary to g1.ve rise to the presumption of law stated as a general rule in Attorney General's OpinionNo. 

### o-3181,are not in evidence before you. Under the protestant's theory this presumption could only arise In connectIonwith the alleged mlssing deed of Lots 9 and 10,Block 

### 7, from the T. & P. Railway Company to a grantee or grantees unknown and given at an unknown date, but presumablybetween the years 

### 1873 when the T. & P. Railway Company acquired the go-acre tract fromBiackburn and the year 1895when Mrs. Hargett and her husband conveyed the property. Protestant cannot produce this deed, It is alleged, by reason of'%heWood County deed records being destroyed in a fire in 1878. In the absence of this deed we cannot determinewhether the grantor did or did not intend to convey the land area under the alleged street.

Protestant's theory of the case, In order to prevail, and fa11within the general rule of OpinionNo. 

### o-3181,shouldbe supportedby: (1) 3~urveylng evidence that the deed from A.A. Blackburn to the Railway Corn any did in fact cover the road area of Forest Avenue; (27 Some character of evidence of the existenceand date of the alleged missing deed from the Texas & Pacific RailwayHon. Ernest 0. Thompson - Page 8,V-74

Compeny to grantors in theHergett chsin of title; (3) and, 8s requiredby the most recent expression of the Supreme Court in the Goldsmith case, evidence of the existence in fact of a public road, street, or alley
on the dateofe alleged missing conveyance.

Applicant's theory of the case, In order to be complete, shouldbe supplementedby some character of evidence of the meanswhereby the Hargetts ac9ulred the applicant'sproperty from the Blackburns eitherby descent,will, or deed); and if by descent or Will, the date ofBlackburn'sdeath, and the non-existence of a public road, street, or alley along the
area now known as Forest Avenue on such date.

The Goldsmith casewas decidedby the Supreme Court on-??&ruary 19, 1947, and it is evident that the case before you was not developed under the rule handed down in that decision. In view of this, the undevelooed facts,end the recent decisions of the Supreme Court in !?bomas v. StanollndOil & Gas

198 3.W. (2d 198 S.W, (2d of the Commission un?.ess clearly unreasonable, arbitrary, or capricious, It may be thatyou will conclude that.It would imposean unfairburden
on either the protestant or the appiicant to send either to court on the basis of the record as it now standswith the wei,ghtof your resumed fact findfnys E--y---- '., On these undeveloped issuesageins the party -osing before the Commission.

Should you so conclude, it Is respectfully suggested thatyou receiveadditional evidence from the perties as outlined in this opinion.

SUMMARY
(1) The general rule stated in OplnionNo. o-3181 to the effect thatwhere an individual owns land on each side of a public street, road, or elley, he Is ordinarily presumed to own the fee to the street, subject to the appiy unles3 clpub~icfseasement,does not

et tne time of the conveyance the grantor of the deed owned the lbnd beneath the road, street, or alley; (2) the grantor'sdeed referred to the road, street, or alley or to a pl6t showingan.

Hon. Ernest 0. Thompson - Page 9,

### V-74

abutting road, street, or alley; and 

### (3) the road, street, or alley was in existence at the time of the conveyance.
(2) Under the record made in a pend-. ing Rule 

### 37 case, the Railroad Commission 4 may conclude to receive additionel evidence from the parties under the rule of Goldsmith
vs. Humble Oil & Refining Company recently decidedby the Supreme Court, as io the existence in fact of a publFc road, street or alley atment dates, since the case before the Commisslonwas not develoned as requiredby the Goldsmithdecision. -

Yours very truly

ATTORNEYGENERAL OF TEXAS 

# BY

James D. Zmullen &#

Assistant

JDS/ft/lh

APPROVED:March 

### 6, 1947



# 2iiL cL?4LJ

ATTORNEYGENERAL

APPROVED:OPINION COMMITTEE Bx, Chariman