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 of Attorney 

General's Opinion No. 

0-318i dated March 24, 

1941, to facts of pending Rule 37 case in HawDear Sir: kins Townsite. 

This Is in response to the request contained 

in your letter of February 10, 1947, for an opinion of 

this office whether the general rule set forth In answer 

to question "9" of Attorney General's Opinion No. 0-3181, 

dated March 24, 1941, applies to the facts of a pending 

Rule 37 (well spacing) case Involving lands in the Rawkins Townslte. 

In answer to question "g", this office held in 

Attcrney General's OpFnion No. 3131 that as a general 

where an individual owns lands on each side of a 

c street or road "dedicated as 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 ordinarily passes 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 lots must 

be considered together in determining whether 

"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 covered by the road or street, and 

in such cases, of CGurse, the purct4ser 

of the lot would not by such conveyance 

acquire any title in the land covered by 

'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 determining whether the Commis-lcn's rule 

agai.nst 3ubdivFsloti3 cf May 29, 1934, zpplLesA The 

Commission's spec,lng rrlle for the Hawkins Field, 8~3 

the rule against subdislsfons provide: 

"No well shall be drl.114 hereafter for 

oil and gas c,r either of them nearer than 

nine hundred 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 provisTons hereof, the Commission, 

'fn order to prevent waste or to prevent 

the confiscation of property, will grant 

bxc e ons to ermL drilling within 

~~~~~~~~s4"~~~1~~a~~~~~ 

that such exceptIons are necessary either 

,O prevent waste or to prevent th , e con- 

??i.scatlon ompropsrtv. * * *"(E mphe .5 is 

xupplled) 

"IT IS ORDERED by the Railroad Commlscion 

of TexE3, that IG applying Rule -17 ',Sraclng Rule) of State-wide applicatfon an% 

in applying every rule wLt'n relatl.oc to 

spacgng In every field in this State, no 

subdivision of property made subsequent 

to the ;?doption of the original spacing 

rule wrll be cona13e:red In determl,nl.ng 

whefhe.r or 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 praperty Fi,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 promulgation and adoption 

of the original spacing rule.” 

In the case pending before you, applicant's 

lessor owns Lots 9 and 10 in Block 7 of the Hawkins 

Townsite, the land upon which a well permit is applied 

for under the confiscation exception 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 

of Hawkins, 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 drilling within the distances from lease lines set forth in the spacing 

rule. Applicant and his lessor claim !-Loto own the land 

underlying Forest Avenue, and therefore claim to be entitled, under the confiscation exception to the spacing 

rule, to at least one well permit on combined lots 9 

and 10 under the well established rule of Dailey v. Raili-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 other hand, that since the applicant's 

-,e-sor owns land on each side of Forest Avenue, the general rule announced by the Attorney General's Opinion No. 

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 

of May 29, 1934, against subdivisions was infringed. As 

YOU know. it is well settled that no subdivision lessee 

is entitled as a matter of right to a well permit under 

the confiscation exception (Railroad Commission v, Miller, 

165 S W. (21) 504). In such cases it is the Commission's 

duty to ente&iln.sn application upon the entire land 

area as it existed prior to subdivision, and to locate 

the well u~pon that portion of the entire tract as tnag best 

comport with conservation practices. See Attorney General's Opinion No. o-7046-~, dated March ?, 1946. 

The general rule set forth in Attorney General's 

Opinion No. C.,31?1, is, as stated by the court in Gold- ---- 

smith v. Humble 011 & Refining Company (Texas' Supreme 

Court, Februarvm>T4'/, unreported as yecI-.): 

11* * f based upon the weil 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, which was f'ollowed in later 

declIsions, that when a conveyance i3 

made of a lot or a tract cf land abutting upon a street or highway, 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~ter of the 

street or highway, or all of it depending .u~on the circumstances unless 

a controrv intentlou is shown., cox v 

~~ampje11,v135 Texas 423, 143 S.W. 2d 

361; Cantleg v, Gulf Production Co., 

135 Texas 339, 143 S.W. 2d 912." ,~ 

The rule,has been 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 out by the writer 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 (or possibly to a map or plat shoving a road, passageway, or 

alley); and, as stated by ths Count: 

m easaent at the time when-&e deed-.Ls_. 

made. We have-& no case aon&j-ng-&.epresumption when the conveyence make3 no 

reference to a highway, street cr pa3sageway and when, at the time the deed is exec '---i-- utcd, tie w an not bounded2 

3 t-A~;hw~a~, streat or passageway in which sz 

easement has been created or acquired.' .-.- 

T,E~?i s s up~i i ed ) 

l'%e Court then proceeded to holed that 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 question was conveyed, there was no 

occasion to indulge the presumption merely because a 

streetor alley was shown to have existed at a later 

date. In reaching this result the court relied upon 

the authority of Raleigh-Hayward Co. v. Hull, 167 

Wash. 39, 8 Pac. mL' ,L i). that case although the 

land was conveyed by lot and bnlock number by reference to a plat showing the street area in question, 

it waa held that since the street was not I.n existence 

at the time of the conveyance, no title to the street 

area nassed to the grantee. This rule is alao stated 

in ll*Corpus Juris 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 foregoing we gather that to support 

the presumption of title stated as the general rule In 

Opinion No. O-31,%, the following must 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 existence at the time of 

) that it is the first conveyance 

by a ~grantor of his land bordering on a road, street, 

or alley; the fee to which is also owned by him, that 

controls, and not subsequent conveyances. With these 

rules in mind we shall review the facts which are before you a3 we have 

from your files 31,5 fi 4, 

athered them from your letter and 

31,6&2, 32,180, 32,747 and 

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 thereafter conveyed 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 of Hawkins. 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 recorded plat of the 

Townaite IS one fiie3 for record by the Texas & Pacific 

Railway Company in the year 1909. The reason It is 

stated thst :he Texas & Pacific Railway Company 'Iendeavored to plat the ninety acres" Is that it appears 
Hon. zrn.e3t 0. Thomp3xi -' Pagt. 5, V-7Q 

The 90 acres conveyed to the railway In 

l?sj cane out of the Southeast quarter of the Brewer 

Swveg , the north bcundsrjr line of which quarter was 

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 in Blackburn 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 eastern boundary line of the Eleckburn 

tract, and by the northern boundary line of the original 320-acre Blackburn tract. Within this triengular 5-ec,re tract lies the applicant's tract and Forest Avenue, separating his other lends to the north. 

It 1,s contended by the protestant that 3om9- 

tlrne after the criginal. dedication p&t of the Texas & 

Pacific Railway Company wes filed (the date of which 

la net shown in evidence), the Rsilwey Company sold 

Lots 3 and 10 of Block 7, oppl.i.eantVa tract to aoaecn?. 

To quote from proteatantPs moticn for rehe%rio~g, your 

file NO+ 31,642: 

'Petitioner d oe 3 not k-ncv tile ex‘5ct deite 

cf this conveyance nor to whcm it wan made, 

since the deed records of Wood Coi:nQ, Taxes 

containing the record of the deed were deatrcyCd b:? I"iI?t?. This deed under the lwcrs of Tsxtis 

opertited to convey th e 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 other hand, 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 there wk.1 

nothing in the record to show that the Kargetts acquired 

title to Lots 9 and 10, Block 7, from the T. & P., it 

?!yet be assumed that title was acquired by Ers. ISrg'tr 
Hon. Ernest 0. Thompson - Page 7, V-74 

by descent or by will from her father, A.A. Blackburn. 

Parenthetically, It is the writer's opinion that it 

would be more logical to assume that Beulah Blackburn 

Rargett acquired the property either by 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 death was not 

shown; nor was the existence of a road, street, or alley shown at such time or at any time between the year 

1873 (when Blackburn conveyed the go-acre tract, to the 

T. & P. Ry. Co.) and 1896 (when Mrs. 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 1909 when the Railway Company filed 

Its plat oft the Hawkins Townslte showing Forest Avenue. 

In this connection we quote from your letter: 

"No evidence Is found in the record that ' 

Forest Avenue was in fact a street in 1896 or 

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 Opinion No. o-3181, are not in evidence 

before you. Under the protestant's theory this presumption could only arise In connectIon with 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 presumably between the years 1873 

when the T. & P. Railway Company acquired the go-acre 

tract from Biackburn and the year 1895 when Mrs. Hargett 

and her husband conveyed the property. Protestant cannot 

produce this deed, It is alleged, by reason of' %he Wood 

County deed records being destroyed in a fire in 1878. 

In the absence of this deed we cannot determine whether 

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 fa11 within the general rule of Opinion No. 

o-3181, should be supported by: (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 existence and date of 

the alleged missing deed from the Texas & Pacific Railway 
Hon. Ernest 0. Thompson - Page 8, V-74 

Compeny to grantors in the Hergett chsin of title; (3) 

and, 8s required by 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, should be supplemented by some character 

of evidence of the means whereby the Hargetts ac 

9 

ulred the applicant's property from the Blackburns either by descent, will, or deed); and if by descent or 

Will, the date of Blackburn's death, and the non-existence of a public road, street, or alley along the 

area now known as Forest Avenue on such date. 

The Goldsmith case was decided by 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. Stanollnd Oil & Gas 

198 3.W. (2d 

198 S.W, (2d 

of the Commission un?.ess clearly unreasonable, arbitrary, or capricious, It may be that you 

will conclude that. It would impose an unfair burden 

on either the protestant or the appiicant to send 

either to court on the basis of the record as it now 

stands with the wei,ght of your resumed fact findfnys 

E--y---- '., On these undeveloped issues ageins the party -osing 

before the Commission. 

Should you so conclude, it Is respectfully 

suggested that you receive additional evidence from 

the perties as outlined in this opinion. 

SUMMARY 

(1) The general rule stated in Oplnion No. o-3181 to the effect that where 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, 

appiy subject unles3 to the clpub~icfs easement, 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's deed referred to the road, 

street, or alley or to a pl6t showing an 
. 

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 

decided by the Supreme Court, as io the existence in fact of a publFc road, street or 

alley atment dates, since the case before the Commisslon was not develoned as required by the Goldsmith decision. - 

Yours very truly 

ATTORNEY GENERAL OF TEXAS BY 

James D. Zmullen &# 

Assistant 

JDS/ft/lh 

APPROVED: March 6, 1947 

2iiL cL?4LJ 

ATTORNEY GENERAL 

APPROVED: OPINION COMMITTEE 

Bx, Chariman