                  ~~~~ATTORNEY      GENERAL
                           OP TEXAS
                              Aun-    H.   TEXAS
PRICE  DANIEL
ATTORNEYGENERAL
                           February 12, 1948

         Hon. D. C . Grew             Opinion No. V-499.
         State Highway Engineer
         Austin, Texas                Re:     The appllcabllity  of out-
                                              standing mineral reserva-
                                              tions 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 brlef-
         ly are as follows:      The Highway .Department needs a quan-
         tity of iron ore gravel for the construction        and mainten-
         ance 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 pay-
         ment 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 August-
         ine County Deed Records; and
               "4. All property and mineral r?ghts
         reserved in deed from Patrick A. hC8y   to
         E. B. Hayward, dated Januar 15, 1902, of
         record in Volume V, page 48.I, 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 Novem-
                          of 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:
         "DEEDFROMLONGBELL LUMBER SALES CORPORATION
                TO LONGBELL MINERALSCOKPANY
               "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     des-
         crlbed 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 servl-
        tudes, 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 here-
        inabove specifically     granted and reasonably
        necessary for the economical operation of
        said land for the production        of said minerals."
              Based upon these facts , you have asked two ques-
tlons    which we quote:
              II . . . will you please 8dvi88 us if the
        iron ore gravel desired by this Department
        for highway construction    and maintenance pur-
        poses 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 Depart-
ment,  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 lnform-
atlon.
           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 sls-
ters, Mllly, conveyed by warranty deed her one-half       lnter-
eat 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 des-
        cription,   be the same gaseous, liquid,   or solid,
Hon. D. C. Greer,   Page 4,   v-499.



     in and under the lands hereinabove des-
     crl.bed ; so that henceforth,     grantor herein
     shall have and continue t? own for a per-
     i& 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,rant-
     Tr kll5mAn, h-e-r ke’LT-!3mrt Irss’LWrs, -+m’L-1
      have and she hereby has the right and power
      to take all t,he usual, necessary and c’3n-
      venient means for working, getting,        drill-
      ing for, laying up, dress:.ng, making mer-
      chantable and taking away said minerals,
     and also for the said purposes, or for any
      other purpose whatsoever,      to make and re-
      pair wells, mines, shafts,      tunnels, plpe-
      lines and drains, in, upon, Into and be-
      neath such lands, and to lay and repair
      pipes under, upon or above them for convey-
      ing 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, particu-
      larly 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 un-
div!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 author-
ities:
            “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 ordl-
             nary 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 valu-
             able 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. Wes-
        sels, answers fully the questions involved in your request.
        It ls,.therefore,       our opinion that this gravel is not ln-
        eluded 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     lang-
             uage specifically    showing an intent to re-
             serve 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?ERALOF TEXAS



        ATTORNEY
               GENERAL.                 Charles    E. Crenshaw
                                                     Assistant
        CEC: jmc
