THE 

### ,*~ORNEY GENERAL OFTEXAS

Mi-.0;J.S: Ellingson Gyeral Manager Texas Prison System Huntsville, Texas Dear Sir: OpinionRo. O-3357 Ri: DOW lessee of vendorunder a-~ deed reservingminerals have the right of ingress and agress'for the purpose of exploiting such minerals? This will acknowledge receipt of your letter-ofMarch 29, requesting the opinion of thisDepartment. We quote your letter In full as follows:

"Mr;Ray Chapman,Auditor of the Texas Prison Bgatem, advises he adliveha to you the 

### ae8a to the Blue Ridge State Farmwhich reserves to Mr. Bassett Blakely, vendor, the mineral rights. "Recentlya man by-the name ofRichards setup a derrick and other equipment for sinkinga shaft to operate a saltmine on the EdwardDrew Surveywhich comprisespart of the Blue Ridge State Farm purchased from Mr. Bassett Blakelg. "Pleaserefer to the deed In your possession and advise if Nr. Richards after entering into a leasewith Mr. Blakelg would have a right to move In on this property without consulting the prison system and ifyour answer Is yes, Would we have a rLght to all damages sustained orwould the necessary damages for the operation of a saltmine be exempted?" We wrote you that the deed to which you refer in your letter was not In our posssesslon and requested thatwe be furnishedwith a copy thereof. A copy of this deed was enclosed in your letter of April 18th, receipt of which we acknowledge.

This deed contal.ns a mineral reservation and we quote the followingpertinent excerpt:

"It IS further agreed and understood that theMr. O.J.S. Ellingson, page 2 O-3357

said Bassett Blakely does not conveyby this instrumentany of the 011, gas or mineralsupon, in or under sala land.

.....Thegrantor, his assigns and **leasees,** shallhave the right of ingress and egress in the lands herein conveyed for the purpose of exploitingthe said lands for oil, gas and otherminerals, but such right shallbe exerclsed in such a way as to occasionno unnecessary damage, either to the surface of said lands or to any **growing** crops thereon, and all actual damages occasionedby the exercise of said rights shallbe paid to the Prison Commission."
In view of this expressprovision in the deed by which the prison systemacquired title to the land, there can be no questlon that the vendor's lessee has the right to enterupon the land to exploit the mineral estate,

Even in the absence of such a stipulation in the deed, under the Texas law the owner of the mineral estate is gLven the right of ingress and egress for the purpose of exploring and developfng. 230 3-W. 864. Donnell v. Otts (Civ.App., Ft. Worth, 1921),

"The law is well settled in this state that. the lessee (undera mineral 1ease))has the right'oi possesslon of any part of the surface of the land as may be reasonablg,,necessarg for development and exploration, Mercer (Civ,'App:, United North and South Of1 Co. v. Austin, 1926) 286 S,w. 652S However,under the provisions of Article 6166g'(Vernon's Ann. St.) the Texas PrisonBoard is given the exclusivemanagement and control of the prison system and all itspropertles.

As we understand your inquiry,the property in question constitutesa part of a prison farm, and we realize that there might be some conflictbetween the authority of the Prison Board over the land and the rights of the owner of the mineral estate to extract the minerals. MeLther the prison officialsnor the owner of the mineral estatemay wantonly disregard the rights of the otherupon the surface of the land in question:

"Ithas been sald that there is an implied contract between the owner of the surface estateand the owner of the oil and gas that each~111 exercisehis right In such a manner asto avoid Injuring the other. 31 Tex. Jur. 559. See alsoHumble 011 & Refining Co, v. WoodMR. O.J.S. Ellingson, page 3 0-3357

(Corn. App. Sec. B, 1927) 294 S.W. 197. The situationas you have outllned it appeals to us as one which might be equitablyadjusted between the parties through consultation. We do not believe that the right of the prison officials to require that entryupon the land in question be such as~~111not interferewith the conduct of the prison farm can be questioned.

Such requirementsmst, of course,be reasonable and such as will not substantially interferewith the right of the owner of the mineral estate to develop such estate. Answering the latter portion of your inquiry,we wish to point out that the deed provides that "allactual damane occasionedby the exercise of the right (to extract the minerals) shallbe paid to the Prison Commission." Trusting that we have sufficientlyanswered your inquiry, we are Yours very truly ATTORNEY GENWAL OF TRXAS

.~ By s/PeterManiscalco PeterManlscalco Assistant
PM:AMM:wc APPROVRCI

WAY 14, 1941 s/Grover Sellers FIRST ASSISTART ATTORWEY GRRRRAL Approved Opinion CommitteeBy s/GRL Chairman