   TEE      ATTO~EYGE~RAL
               OF     TEXAS



                May 4, 1949




Hon. William J. Murray, Jr., Chairman
Rallroad Commission of Texas
Austin 11, Texas
                 Opinion NO.V-823
                Re:    Time of vesting of limita-
                       tion title with reference to
                       subdivisionunder Rule 37.
Dear Sir:
          The question for opinion is contained in
your letter from which we quote as follows:
         "As has previously been stated, it
    is a Commission policy to grant a first
    well on any~separatefee tract which ex-
    isted prior to the discovery of oil In
    the East Texas Field, but that any sub-
    division of property subsequent to the
    discovery of oil which is in violation
    of Rule 37 does not entitle the owner of
    the subdivided property to separate de-
    velopment. Consequently,the date -upon
    which a person acquired title to a tract
    of land is as Important In some cases for
    the determinationof his right to a well
    as is the question of his legal title to
    the land.
         "Therefore,we wish to ask the ques-
    tion as to the date of the acquisition of
    title of a tract of land in which title
    has matured to the present owner by virtue
    of adverse possession. Specifically,we
    have Rule 37 case ~0.38,031 pending, in
    which the J.K. Hughes Oil Company, lessee
    of a 0.64 acre Pomp Mitchell Heirs tract
    in the J. g. Caruthers and Mary Van Winkle
    Surveys, East Texas Field, Is requesting
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    Hon. William J. Murray, Jr. - Page 2 - v-823


         a permit for a first well on this tract.
         It is our understandingthat the courts
         have awarded title to the Pomp Mitchell
         heirs on this tract by virtue of ten years
         adverse possession. It is a disputed ques-
         tion of fact as to the date that the ad-
         verse possession first began, but for the
         purpose of this request, we will assume
         that the adverse possessionbegan in 1929.
              "If legal title became vested in the
         Pomp Mitchell heirs In 1929, then this
         tract was subdividedprior to the discovery
         of oil in the East Texas Field, and under
         our understandingof the law and our es-
         tablishedpolicy, this tract would possibly
         be entitled to a first well. If, however,
         legal title did not mature by virtue of ad-
         verse possessionuntil the conclusion of
         the ten year period, which under our as-
         sumption would be 1939, the tract was then
         subdivided after the discovery of oil in
         the East Texas Field and Is not entitled
         to separate development to prevent confis-
         cation of property since it 3-sa subdlvi-
         sion in violation of Rule 37.
              “We, therefore,ask the question, when
         does title mature as a result of adverse
         possesalon;and if different conditions of
         adverse possession could affect the opinion
         as to the date of the maturity,,then we re-~
         quest an opinion as to the specific clrcum-
         stances involved In the J.K. Hughes case."
               You have also furnishedus with your entire
    file on the application, including the briefs of ap-
    plicant and protestant. Fro-1these and the file, it
    appears that the question of subdivisionis only one
    of several grounds upon which the application is be-
    ing contested. In view of this, we wish to make it
    plain that this opinion is concerned only with the
    abstract legal question stated in your request for
    opinion.
               As your request for opinion indicates, the
    time when possession began is a controvertedquestion
    of fact which we make no attempt to solve. As sug-
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    Hon. William J. Murray, Jr., Page 3 - v-823


    gested by you, we merely assume without deciding
    that the possession which finally culminated in
    the limitation title began prior to discovery of
    oil in the East Texas Field.
              Although a limitation title does not ma-
    ture, ripen, or vest until the llmltationperiod is
    completed (1 Am.Jur.p.797;2 c.J.s.P.~~~),never-
    theless, once the period Is completed, the title re-
    lates back to the date possession began. The doc-
    trine of relation back is discussed by Judge Hutche-
    son in Counce v. Yount-Lee 011 Co., @' F.2d 572 (CCA.5th,
    1937, cert. den.302 U.S.bg3) from which we quote as
    follows:
              11
                   . The answer is to be more broad-
                       .   .

         ly sought and found. It Is to be, it is
         found in the self-evidentproposition,that
         it is a contradictionin terms to say, as
         the Texas Statutes and most other statutes
         of limitation do, that the effect of the bar
         of adverse possession is to give the poss-
         essor full title precluding all claims, and
         to say at the same time, that the possessor
         shall be liable In damages for his acts of
         possession done while his Inchoate title was
         being perfected. .It is to.be found, not only
         In the terms of the Texas Statutes but in the
         general theory which underlies prescription,
         the theory of relation by presumption,the
         theory that once matured, the title relates
         back to the beginning of the prescriptive
         period. Under that theory It is presumed
         that the origin of the title was rightful,
         not wrongful, that the possession which has
         matured it was in support, not in deroga-
         tion of the rightful title, and that he, who
         by a possession perfect in the law has ma-
         tured a title, has in theory of law been the
         owner of the title from the beginning. There
         is no place In the theory of prescriptionor
         limitation for the contention appellants put
         forward, that after the title has matured,
         the former owner of the land can call the
         limitation owner to account, for any of his
         actions done, on or to the land, in the course
         of the unchallengedpossession, that has ri-
         pened his right and title to it. The princl-
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    Hon. William J. Murray - Page 4 - v-823


         ~pleof relation Is a comprehensiveand fa-
         miliar one in the law of real property.
         It treats one ousted from possessionwho
         has made re-entry, as by relation in con-
         tinuous possession. Alliance Trust Co. v.
         Nettleton Hardwood Co., 74 Miss. 584,
         21 So. 396, 36 L. R.A. 155, 60 Am. St. Rep.
         531. It gives the owner of an Inchoate
         title when his title has ripened, title as
         from the beginning. Gilbert v. McDonald,
         ;&Minn. 289, 102 N.W.712, 110 Am. St.Rep.
               The principle has pecular applica-
         tlon to prescriptionand titles by llmi-
         tatlon. It has precise and compelling'force
         in matters of limitation. This is horn book
         law. 1 R.C.L.p.690;1 Am. Jurisprudence
         p.797; 2 C.J. 251. 5 In 'Thompsonon Real
         Property',@ 2516 (quoted in Stolfa v. Gaines,
         140 Ok1.292,.283~.563,567) the principle
         is thus stated; 'Adversepossession for
         sufficient time to bar an action to recover
         real estate confers title, against any ti-
         tle whatsoever,as effectivelyas if the
         original owner had made a formal conveyance
         to the possessor. The title is as full and
         complete as if the possessor had always
         held the undisputed title of record. The
         rule rests upon the theory that;.whenposs-
         ession and use are long continued, they
         create a presumptionof lawful origin;
         that is, they are founded upon such instru-
         ments and proceedingsas in law would pass
         the right to the possession and use of the
         property.
              11
               . . .
              "The rule has peculiar force in Texas.
         The effect of its statutes ,isto raise an
         lrrebuttablepresumption that the person,
         whose action is barred, has been divested,
         from the beginning of the adverse possession,
         of every attrlbute and incident of title to
         the land. His title, right, and interest in
         it have been obliterated,the person whose
         possession has barred him has taken his
         place, and holds title by the same chain he
         held It by direct from the sovereigntyof
Hon. William J. Murray, Jr. - Page 5 -V-823



     the soil. Texas Jurisprudence,~01.2, pp.
     14 to 18, inclusive. Particular cases ll-
     lustrating the point are: Burton's Heirs v.
     Carroll, 96 Tex. 320 72 S.W. 581; Eckert
     v. Wendel, 120 Tex. 618, 40 S.W.2d 796,
     76 A.L.R. 855; MacGregor v. Thompson, 7
     Tex. civ. A p; 32 26 S.W. 649; Qoldfrank
     v. Young, 6f:Tex.432; First Nat'1 Bk. of
     Alvarado v. Lane (Tex.Clv.App.)265 S.W.
     763; Campbell v. Halt, 115 u. S. 620, 6 S.
     Ct. 209, 29 L. Ed. 483; Marshburn v. Stewart
     (Tex.Clv.App.)295 S.W. 679; Grigsby v. Peak,
     57 Tex. 142, 143."
See Comment on Counce v. Yount-Lee Oil Co. (supra) In
51 Harvard Law Review 160 (1937). See generally on the
vesting and effect of limitation title; Ballantine,
Title by Adverse Possession (1918), 32 Harvard Law
Review 135 142. and Blngham, The Nature and Bnportance
of Legal P&se&ion (1915), 13 Michigan Law Review,
   f 561, 563 and 627 to 630.
           The briefs call attention to a line of
 cases dealing with the question of determining the
 character of property interest, viz. whether separate,
 community, or common, finally acquired by the occupant
 In adverse possession at the end of the limitation
          Representativeof these cases are: Hutto v.
 %?di39    Tex 571 164 S W 2d 513 (1942); Sauva e v
 &&p,                                       -h:,;
         143 S:W. 259 (Tex: tiv. App.1912, error
 O’Meara v. Williams, 137 S.W.2d 66 (Tex.Civ.App.
-1940; error d&sm., Jud    car.); Brown v.~~FosterLum-
 ber Co., 178 S.W. 787 $"'
                        Tex.Civ.App.1915,error ref.[.
           At first glance, these cases seem to deny the
 doctrine of relation back ~inasmuchas they look to the
 end rather than the beginning of the period to determine
 the type of property interest acquired by the adverse
 possessor. However, the problem involved in each is
 determining in whom and In what capacity the lI.mltatlon
 title has matured and the cases neither affirm nor deny
 the doctrine that once matured or vested the title
 relates back to the time possession began. Privity
 of possession,through successive adverse claimants
 permits, under our limitation statutes, (Article 5516,
 V.C.S.) the occupant inpossession at the end of the
 period to be vested with the whole title and necessarl-
 ly the marital or other facts which relate to that
                                                              .

Hon. William J. Murray, Jr. - Page 6 -V-823



particularadverse claimant must be looked to in
order to determinewhether the title 80 acquired
by him is separate or community, or in common with
others. See Hutto v. Cook (supra).The determina-
tion of this question is made ir.dependentlyof the
doctrine of relation back. Having determinedby
looking to the end of the period that "A" has ma-
tured the title as his seaprate property does not
mean that "A's" title will not relate back to the
date of the possesslotyhich resulted in conferring
the whole title upon A .
          It is our opinion that the doctrine of re-
lation back is one of general applic tlon to llml-
tatlon titles and that it applies folit
                                      the purpose
of determining the effective date of subdivisionun-
der the rules of the Commission.
           We believe that this holding Is in keeping
with the spirit of the rules laid down by the Com-
mission in connectionwith our:onservationstatutes.
The exceptions to Rule 37 were for the purpose of per-
mitting recovery of 011 and gas, either to prevent
waste or confiscation,and were designed to permit
rather than impede such recovery. Brown v. Humble Oil
      126 Tex 296
%&olia Pet:Co.
5th, 1936, cert.
Should we deny the application of the doctrine of re-
lation back to your SubdivisionRule,'then necessarily
all titles acquired by limitation but matured, whether
'oneday or nine years, after discovery of oil within
the area would fall within the SubdivisionRule and
as a matter of law such tracts would be unable to ob-
tain exceptions to Rule 37. The title finally acquired
by limitation is in legal contemplationa rightful and
valid  title (Counce v. Yount-Lee Oil Co., supra, and cases
therein cited‘)and when initated prior to the
discovery of oil within an area cannot be said to fall
within the vice intended to be remedied by the Subdi-
vision Rule. Such Rule was designed to prevent cir-
cumventionof the conservationlaws by persons volun-
tarily acting or conniving to create subdivisionsfor
the purpose of applying for exceptions under Rule 37.
Gulf Land Co. v. Atlantic Refining Co., 134 Tex.59,
131 S W 2d 73 (1939). 31A Tex.Jur.708and cases
therein'clted. As a'general proposition we think it
evident that the ordinary li,mitationclaimant prior
to discovery of oil within the area had no such inten-
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        Hon. William J. Murray, Jr. - Page 7 - v-823


        tlon.
                  In addition, in order to mature the llmi-
        tatlon title the land concerned must be carved away
        from the adjacent land and so visibly and openly held
        under a claim of right as to give notice of the claim.
        Article 5515, V.C.S. As a condition precedent to per-
        fecting the title, a physical segregation or subdl-
        vision of the tract from the land adjacent thereto
        must occur at the inception rather than the conclusion
        of the possession.
                  For all of these reasons, we are of the
        opinion that a title acquired by adverse possession
        relates back to the commencementof possesslon. The
        date on which the adverse possession begins la the
        date to be held in determiningwhether there has been
        a voluntary subdlvlslon in Rule 37 aaaes before the
        Railroad Commlsslon.




                      A title acquired by adverse possession
                  vests at the end of the statutory oeriod but
                 having   vested   relates   back to the iommence-
                 ment of possession. Counce v, Yount-Lee
                 Oil co., 87F.2d52       CCA    5th 19r
                 cart.bsn. 302 U.S.ri93 I.' &?lisdogtrine'
                 applies for-the purpose of'determlnlngthe
                 effeotlve date of subdivisionunder the
                 Rules of the Railroad Commlsslon.
                                             Yours very truly
                                        ATTORNEY QENERAL OF TEXAS

                                        By     a&
                                                H. D. Prue& ;r
                                                       Assistant'
        HDPrbt
                                        APPROVED


                                        ATTORREYQERRRAL
