                               June 6, 1972

The Honorable James U. Cross       Opinion No. M-1147
Executive Director
Texas Parks and Wildlife           Re:      Ownership and recover of
 Department                                 abandoned shell used as
John H. Reagan Building                     pads for foundations for
Austin, Texas   78701                       offshore drilling opera-
                                            tions and other relative
Dear Mr. Cross:                             questions.

       You have recently requested the opinion of this office
regarding the ownership of shell used as foundations for oil and
gas drilling operations in the bays of this State when the drill
sites are abandoned. Your request reads, in part, as follows:

            "An inquiry has arisen concerning recovery of
       abandoned shell from pads used as foundations for
       offshore drilling operations,  This department needs
       your opinion relative to the principles of law in-
       volved.

            "Lessees of submerged land tracts, in the
       course of operations or development of oil and/or
       gas resources, require a firm and relatively level
       site upon which to place a drilling rig. In
       coastal operations when bay bottoms require place-
       ment of some material to achieve the optimum con-
       ditions, shell is customarily laid down in a pad
       as a foundation for a drilling rig,

            "Normally, the shell involved will have been
       produced and purchased from the State at some other
       location. At the end of the drilling operation,
       whether or not a well is completed, the shell pad
       is usually left in place. Evidently, most lessees
       do not feel that it is worth reclaiming.  In the
       case of a completion, a structure is left to pro-
       tect the well head and the shell is available in
       the event the well needs to be reworked.  If no
       production is made, the well is plugged and no
       structure remains.

            "1 am informed by personnel of the General
       Land Office that leases are on occasion forfeited
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Honorable James U. Cross, page 2 (M-1147)



       or abandoned by failure to pay the following
       year's rental, in the event a completion is
       not made.

            "We have been approached by an individual
       who now proposes to negotiate agreements with
       various lessees who may have abandoned such shell
       pads for the purpose of reclaiming that shell. In
       some instances, due to the nature of the bottom
       and the weight of the drilling rig, the shell
       may have been covered over by bottom sediments
       or have been pressed into the bottom. There
       will probably be occasions when such shell will
       have been placed directly on shell which had not
       been previously removed and sold.

            "In light of the above, our questions then are:

            "1 . Under the facts presented above, does
       ownership of the shell placed upon bay bottoms
       reverts to the State?

            "2 . If your answer to question number one
       is affirmative, at what point would the ownership
       to the shell revert to the State?

            "3 . If ownership does revert to the State,
       would such shell be restored to.the jurisdiction
       of the Parks and Wildlife Department?

            "4. In the event you determine that the
       Parks and Wildlife Department would regain juris-
       diction to the shell, would a permit for removal
       be required, and, if a permit is required, can
       the department sell the shell?

            "5 . If you determine that ownership does not
       revert to the State, would the party need a permit
       from this Department to disturb the bay bottoms in
       accordance with Opinion No. M-84 and other opinions
       issued by your Office?"

       The shell used to make a pad for the drilling barge with its
attached derrick and rig to rest upon is unquestionably personal
property before it is spread upon the bay floor at the proposed
well site, since it has previously been dredged up, severed from the
bay floor and paid for. The basic question is, does the shell be-
come a fixture when redeposited on the bay floor as a pad?

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Honorable James U. Cross, page 3         (M-1147)



       It is said in 25 Texas Jurisprudence,   2d, page 394, Fix-
tures, 93, that:
            " 1 0 .'Whatever is affixed to the soil be-
       longs to the soil.' Thus, in the absence of a
       reservation, buildings and other articles affixed
       to or used in connection with realty in such a
       way as to constitute appurtenances or fixtures
       pass as a matter of course by the conveyance,
       devise, or decree passing title to the realty."

       It is also stated in 25 Texas Jurisprudence,   2d, page 398,
Fixtures, 56:
            " . e .Property held in place by the force
       of gravity without any fastening is a fixture,
       provided an intention to make the thing a part
       of the freehold appears and its weight is suf-
       ficient, because gravity will keep it in place."

       It is also observed in 25 Texas Jurisprudence,   2d, page
398, Fixtures, 97, that:

            "An important factor to be considered in
       determining the status of property affixed to
       realty is its removability.  Chattels lose their
       identity as personal property where they are so
       annexed to the realty that they cannot be de-
       tached without damage to the freehold, or without
       destroying the usefulness of the property to
       which they are annexed, . *"

       In the case of Jones v, Bull, 85 Tex. 136, 19 S.W. 1031
(1892), the question was considered as to whether property that
had formerly been personalty become a fixture, and the Court held
that where evidence does not admit to any other conclusion but
that property in controversy is a part of the realty, a jury may
be so instructed, observing:
            IIe . .In the case of Hutchins v, Masterson,
       46 Tex. 554, it was said that 'the weight of
       modern authorities establish the doctrine that
       the true criterion for determining whether a
       chattel has become an immovable fixture consists
       in the united application of the following tests:
       (1) Has there been a real or constructive annexa-
       tion of the article in question to the realty?
        (2) Was there a fitness or adaptation of such
       article to the uses or purposes of the realty with
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Honorable James U. Cross, page 4        (M-11-17)



       which it is connected?   (3) Whether or not it
       was the intention of the party making the annex-
       ation that the chattel should become a permanent
       accession to the freehold, this intention being
       inferable from the nature of the article, the
       relation and the situation of the parties inter-
       ested, the policy of the law in respect thereto,
       the mode of annexation, and purpose or use for
       which the annexation is made, And of these three
       tests preeminence is to be given to the question
       of intention to make the article a permanent
       accession to the freehold, while the others are
       chiefly of value as evidence of this intention.'
       See Moody v. Aiken, 50 Tex, 74; Willis v. Morris,
       66 Tex. 628, 1 S.W. Rep, 799. The question of
       intention relates to the time-when the land was
       purchased and the machinery was originally placed
       upon and attached to it, and, when so considered,
       we think every test suggested by the above rules
       for the purpose of making such machinery a part
       of the freehold was fulfilled. The evidence does
       not admit of any other conclusion than that the
       property in controversy was a part of the realty.
       As that was the controlling issue in the cause,
       and there was no evidence proper to be considered
       to ,the contrary, the court should have charged
       the jury to find for the plaintiff."   (19 S.W.
       1032)

       In the situations about which you inquire, the shell is
spread upon the bay floor so as to form a level platform for the
drilling barge, derrick, and rig to rest upon. The weight of the
shell, together with the weight of the drilling barge, rig, and
derrick, compresses, grinds, and further works the shell farther
into the submerged soil.

       At this point it would be impossible to remove the exact
shell that had been placed on the bay floor from the other shell,
silt, marl, and other material comprising the bay floor without
materially altering and destroying the bay floor insofar as it
existed immediately before or after the shell had been placed
thereon as a pad for drilling barge and well site. The intent
of the parties involved is presumed to have been to make this
shell a part of the realty.

       We believe that under these circumstances and under the
above cited authorities, p articularly Jones v. Bull, supra, the
shell used for pads for drilling in the Texas bays for oil and gas
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Honorable James U. Cross, page 5         (M-1147)



becomes afixture and attached to and a part of the realty as a
matter of law when the shell and the drilling equipment are in
place. Any further removal to a new location would be subject
to the jurisdiction of the Parks and Wildlife Department, and
such party desiring to remove the shell must obtain a permit from
the Parks and Wildlife Department,  Article 4053, Vernon's Civil
Statutes, so requires.  Attorney General Opinions Nos. WW-151
 (1957) and M-84 (1967). It is our conclusion that the Parks and
Wildlife Department may sell the shell as provided for by Article
4053, et seq, upon abandonment or termination of the lease.

                             SUMMARY
                             --
            Shell redeposited on bay floors as pads for
       drilling barges, rigs and derricks in the Texas
       bays for oil and gas exploration and production
       becomes a fixture and attaches to and becomes a
       part of the realty as a matter of law when the
       shell and the drilling equipment are in plaoe.
       Any further removal to a new location would be
       subject to the jurisdiction of the Parks and Wild-
       life Department, and such party desiring to so
       remove the shell must first obtain a permit from
       the Parks and Wildlife'Department to do so in ac-
       cordance with Article 4053, Vernon's Civil Statutes.

            The Parks and Wildlife Department may sell
       this shell to any party desiring it., as provided
       for by Article 4053, et seq, Vernon's Civil Statutes,
       upon abandonment or terminat' n of the lease.
                                  fp



                               &
                                V    truly yours,


                                          d2 4k-c
                                       ORD C. MARTIN
                                           General of Texas

Prepared by J. Milton Richardson
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
James H. Quick
Roland Allen
Harriet Burke
Bill Campbell                 -5589-
                                                   . .




Honorable James U. Cross, page 6        (M-1147)



SAMUEL D. MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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