Hon. W. L. Edwards                Opinion   No. V-379
County Attorney
Victoria  County                  Re:   Ownership of      minerals
Victoria,  Texas                        in ded.icated     parks;
                                        and the best      bid for
                                        mineral   lease     on
                                        county owned      land.

Dear’ Sir:

           ie refer .to your letter     of Aue;ust 6, 1947 )
supplemented  by ~a very helpful    brief  received  on Aug-
ust 16, 1947.   Your,fa+ual     statement    is,: I,

       ‘gy plet and dedication      in the year 1907 a
       Realty Company,, known. as Burton, Wharton
       and Wilson,    laid’ out what is known as the
       Bloomington    Townsite in this county.      Cer-
       tain, blocks were designated     as ‘Parks’,    and
       the dedication     accompanying  the plat,   stated
       among other things:

              ‘We do hereby dedicate       to the pub-
              lic all our right,     title   snd inter-
              est aoquired     or to beg aoquired ‘in
              and to .the parks, sohool      gn,unds,
              avenues,   streets   and alleys    of said
              Town as shown by said map.’

       “About seven (7) months after       the original
       dedication,     C. A. Burton, who had acquired
       Wharton and Wilson’s      interest  in the said
       townsite,   fi,led an amended map, which desig-
       nated the same blooks as ‘Parks,’       and in the
       dedication    accompanying    the amended map ap-
       pears the following:

               ‘I hereby dedioate      to the public     all
              my rights,   titles     and interest    ac-
              ,quired or to be acquired       not hereto-
              fore dedicated      in and to the parks,
              school grounds,       avenues,  streets    and
              alleys   of said Town as shown buy the
              map hereto attached, .’
                                                                   .   .



Hon. 3. L. Edwards,    Page 2,    V-379



      “About 1912, the town of Bloomington        incor-
      porated and operated       under said corporate
      charter   until   about the year 1929, when it
      was abolished     as .provided  by law, and it is
      still   unincorporated.      The corporate  limits
      included   said parks.”

             Your questions      are:

      *Oil has been discovered        on and near the said
      townsite.     The question     now arises   as in who
      holds title     to said parks.     Incidentally,     the
      parks were never used as such,         and there have
      been    no conveyances   affecting    the title   to
      the same other than the dedications           above men-
      tioned.

       *Ihave been unable to find any law specifi-
       cally  regulating     the title     to such parks by
      virtue   of said dedications.          It would, there-
     ‘fore,   appear that     the common law Taverns.      The
      most succinct      statement     of the common law resgu-
       lating  such dedications        that I have been able
       to find is contained      in 16 American Jurispru-
      dence 402, Paragraph 56.

      “Without     reference   as to how the above ques-
      tion is answered,      I would also like your opin-
      ion as to the construction         of Article    5400-A.
      The county owns the fee title          by regular deed
      to a tract of land.        Ins ascertaininq     what con-
      stitutes     the highest   bid, can the Commission-
      ers’ Court take into consideration            the poten-
      tial    value of a drilling     contract    in addition
      to the regular cash bonus?”

           We   note your suggestion  that no, title   may pass
by a dedication     in the absence of a grantee,.    The rule in
that regard is stated     in American Jurisprudence,    Vol. 16,
page 356, Section     14, as follows:

           *‘A ded,ication    does not require      the exls-
     tence of a corporation        to which it is made or
     in which the title       should vest.      A dedication
     may be valid without any specific           grantee     in
     being at the time it is made. . . . The inter-
     ests of those beneficially        entitled    to eese-
     ments or dedications       of a public,     charitable,
     or religious     character    are not allowed      to
Hon. W- L. Edwards,      Page 3, V-379



     lapse or fail   for want of what is teohni-
     oally  called  ‘a person’ to take the legal
     title,  the public being an ever-existing
     grantee capable of taking the dedication,   ‘”

          The rules which pertain   to map or plat                  dedica-
tions are stated  in American Jurisprudence,    Vol.                16, pa-
ges 365 and 367, Sections   22 and 23, as follows:

            “Analogous    to dedication      by deed, and
     sometimes merely a variant          phase thereof,
     and likewise     closely   allied    to the doctrine
     of incidents     and appurtenances       to grants by
     deed, and to certain       doctrines     referable     to
     the subjects     of easements,      private   ways,
     and vendor and purchaser,         is the doctrine        of
     dedication    by plat or map.        Dedication     by     .
     plat or map is a common method of dedicating
     streets,    public   sidewalks,     and public     parks


           ‘*The doctrine     of dedication   by plat
     is frequently~    connected   with the sale of lots
     shown on the plat.        The owner of a tract      of
     land is held to dedicate        such portions    thereof
     as are designated      for publid use on the plat
     with reference     to which he sells. lots out of
     the traot.     The sale of even one lot under
     these circumstances       amounts to a dedication.
      . . .”

           The rule whioh applies   to proprietary   rights
and titles  in parks isstated   in American Jurisprudence,
Vol. 39, page 809, Section    12, as follows:

            nWhere land is dedicated         by the owner
     by a common-law dedidation,           a different     rule
     applies.     The    effect   of a  dedication     of  land
     as a park or square is generally             considered
     to create an easement in favor of the public,
     oo-extensive     with the purposes to which pub-
     110 parks’or      squares in such localities          are
     usually    applied.       Where tha re is a corpora-
     tion to represent         the public,   and take charge
     of Its interests,         the easement vests      in such
     corporation,     which thus becomes the trustee
     of a US8;     the naked fee remains in the origi-
     nal proprietor       and hia’ successors      in inter-
     est.    . . .‘*
                                                                               i   .


Bon, 3. L. Edwards,         Page 4, V-379


               The town of BLoomington haolna been inoorpor-
rrted in 1912,       we aaaume that the dedlaatore      sold lots to
purchasera,       wl th referenaes   to the recorded    msp whloh oon-
felaed      a dedication     of the perks, streets,    eto. in Bloom-
ington.      whloh are shown on such map, and, if that aeeump-
tlon be true,        we are of the opinion    that euah pumhaeea
oonetituted       an aaaeptance    of suoh dedlcatlon,     whloh then
beoame irrevocable.
             The caee of Sanborn vs. City of Amarillo,       92
9. W. 473 (writ of error’refused),       states   the rule appLl-
eable in ceaes where a dedioetion       of e perk is made by
dellneetine:   it on a map by refcrenoe     t’o which lots are
eold, as follows:
              *In this aountry          the word *Perk’ wrlt-
      ten upoa a blook of land represented                       upon a
      map or plan or e olty or town’is                   (18 al@f-
      la8nt of a deQioatlon             to the pub110 ae the
      word ‘Street’        written      on suah plan.            The pop-
      ular end natural         meanly        OS the term when 80
      wed 1s a plaae aet apart ror the enjoyment,
      oomfort,     and reoreation           of the inhabitants
      of t,he city or town in whlah it is looated,
      end this     rignlfloanoe         la unequlvooal,           and
      the grantor        in such lnetanoe          can not be heard
      to say that he entertained                a different,         ee-
      oret intention.          And, as will be seen fmm an
      examination        of the authorltlea            above, the le-
      gal effsot       of swh platting,            filing,       and eell-
      lng with referenoe           thereto,      ie not varied          bP
      the Sact that the word *Park’ ie preoeded                         by
      some quellfylna         word, as Worrle             Pa**,
     ‘Annette     Pa**, Wsnen Pa,&‘, or ‘Bllwood Park’.
      The Uedloetlon,         then, belng oomplete and fr-
      revooeble      on the pert of Appellant,                 it beoomer
      llrmeterlal     whether the City of Amarillo                   ever
      tonnallg     aoaepted      the dsdiaetlon,            so Ser as
      its right      to mlnteln          the dsienss        OF dedioa-
      tion to the         ubllo is oonoerned.               Appellant’s
      Offer to ded Boete waa aufflaiently                    aooepted
      by the pub110 when some of its lndlrldual                         mem-
      bers eoted       upon the ofier,          end purohassd         with
       referenoe     to the exhibited          maps,        Nor could
      the faota,       if proved,       that Appellant           had ren-
      dered the property           for taxes apd paid taxes
      thereon     es belonging         to himself,         have ohsnged
      the result.         Belther     the city offlalela             nor
      any other public          orfiolel      would have any pow-
       er to defeat       the right        of the publio in prop-
       erty thus dadloeted           to pub110 use.”
Hon. W. L. Edwards,       Page 5, V-379



             The’ Court, cites  the cases,‘of   Oswald. vs.Grenet
22 Tex. 94; City of Corsicana         vs. Zorn, 70 S.-W.     924;Lai
mar County va. Clementa,       49 Tex. 347, and many other au-
thorities    supporting    Its decision.     We also refer    to Seo-
tions    24, 27, 29, 37, 38, 39 under ~~dedioation”        in Vol.
14, Texas Jurisprudence,       paSes 714, 719, 722, 733, 734.

              It Is elementary    law In Texas that the fee tl-
tle In a dedicated      street   Is vested    In the abutting     own-
ers , subject    to use by the public      for purposes   of free
travel  and municipal      uses,  under municipal    control;     and
that the fee title      to a park, dedicated      to the. public,
remains In the dedicator,        subject   to an ~easement In the
public  for customary      perk uses, regardless     of the ‘ques-
tion as to whether the town was Incorporated.

              Answering your   first  question    basedcon    the fao-
tual   situation   presented   In your letter:         ..

              The dedication     of parks In the town ,of Blooming-
 ton by the owners “to the publiov~ are valid          dedioations,
.although   no grantee     Is’ named. When a ,lot was sold by .the
 dedicator    to a purchaser with reference       to the map of
 Bloomington,     such sale and purchase constituted        accept- I
 anoe of such dedicationfor         the purchaser   and the publio;
 such dedication      then became Irrevoceble     by the dedicator.
 Eidelbaoh    vs. Davis;    99 S. W. (26) 106~7. such dedioa-
 tions may be vacated       as provided  In Art. 7227 V.CiS.,
 and are subject      to abandonment for non-use or If use
 for park purposes      becomes impossible.

           Your second question     asks for a oonstruotion
of Article   5400a, and if a Commissioners’    Court can take
Into consideration    the potential   value of a drilling   oon-
tract  In addition  to a cash bonus.

           ArtIole      5400a of Vernon’s   Civil  Statutes appears
In the Acts 1937,       45th Legislature  , Chapter 279, as follows:

             **An Act authorizing political     subdivi-
       sions of the State of Texas to lease lands
       owned by such subdivisions   for mineral devel-
       opment purposes and prescribing      the ~method
       ana manner of ‘making suoh leases,      and declar-
       ing an emergen0.y.

       *Be It enacted     by the   Legislature   of the   State
       of Texas:
,,.


                                                                                     .

      Hon. W. L. Ldwaraa,       Page 6, V-379


                   wSeotfon 1. Political         subdivisions
           which are bodies oorporate           with reaognized
           and deflnad      areas,    are hereby suthorfzea      to
           lease r0r mineral        development     purposes  eny
           end all lands whloh may be owned by any such
           political     subdivision.
                   Yea.    2. The right        to lease suah lands
           shall be exercised         by the governing           board,    the
           aouunisslon     or commlsaloners          of such political
           subdivision      whioh are by law aonstitutea                wlth
           the management,        control,     and supervision          of
           such subdivision,         sand when in the discretion
           of auah governing         body they shall          aetezmira
           tha.t Lt la advisable         to make a lease of any
           auoh lands belonging          to such district           or sub-’
           division,      such governing       body shell        give no-
           tlce,ot     Its lntentlon       to lease suoh lands,
           deaoriblng      same, by publlaaffon           of auoh n,Of-
           ice in some newspaper published                 in’the     oounty,
           having a general        olrculation        therein,      onae a
           weak ror a period or thres              (3) oonaeoutlrs
           weeks, dsalgnatlng         the tl’iue and plsoe after
           auoh’publloation        where suoh gov,erning body
           will receive       and oonslder       bids for such miner-
           al leasea      as auah govern1            body may determine
           to make.       On the date sbeo2 ‘fled in said notloa,
           such governing        board or body shall            reoelvs    and
           abnsider      any and all blaa s,ubmltted             for the
           leasing     of said lands or any portions                theraod
           which are advertised          for leaalng,          and in the
           dlacretion      of such governing          body shall       award
           the lease to the highest            and best bidder,           sub-
           mitting     a bid therefor,        pmvlded        that if in
           the     udgment of such governing             body the blda
           sub mi tted do not represent            the fair      value or
           such leaaea,       suoh governing         body in their        dls-
           oretlon     msy reject     same and again give notloe
           and call for additional            bias,     but no leases
           shall     In any ‘event be made exoept upon pub110
           hearing     and aonsideretlon         of said bids and af-            ’
           ter the notioe        as herein      provided.
                  Yieo. 2a.      Provided    that all auoh leases
           my be granted        by pub110 auction       and that no
           leases    shall be executed        in any oaae exoept
           and unless     the lessor     shall   retain   at least
           one-eighth     royalty,    provided    further   that In
           no ease shall      the primary term of aaid lease
.   .



        Hon. W. L. Edwards,         Page   7, V-379



              be for more than a period             of. ten (10) years,     ~.>‘!. :~
              from the date of execution             and’approvai  there\,;~i”“’
              of.                                      !. ,; I

                      “Sec. .3.       The’ fact that political           subdi-’      -’ ”
               vIsIons     of the State have ,lands owned, held,
               and used for public             purposes but which purposes
               will not be hindered             or Interfered        with by the
               development        of said ‘lands ‘for mineral, purposes,
               and that some of said l,ancls* have. possibilItIea
               of mi’nerals       therein      and that development          of
               said lands for mineral purposes                  Is necessary
                In order to conserve            said mineral estate          Andy’
                prevent the loss thereof,              create     an. emergency, :
               and, an imperative           public    necessity      that the
               Constitutional         Rule requiring         bills .to be read
               on three several           days in’eaoh       House be suspended
                and said ,Rule Is hereby suspended; ~~and’thfe ,Act
                shall take effect          ~%nd be In force        from and .ifter
               ,ita passage,        andrit, isso’enacted;‘!               .’
                                      ,,.    ,     ‘.
                      There Is no requirement               In the~law that ‘the
        consideration        for a mineral         lease shall be cash.           The per-
        tinent     provisions       In Secti,ons      2 and Ra, aie.,n;;‘.      . On the
        date specified         In said notioe,         such ~governing aboard or
        body shall      receive      and conaider ‘any e~rid‘a,lllbId,s          submitted
        ~for the’leasing        of said lands or any portion               thereof   which
        are advertised         for leasing,        and In the ,discretIon         of such
        governing      body shall       award the lease to the highest              and
        best bidder submitting              a bid therefor.         . . No leases    shall
        be executed       in any case except and unless the lessor                   shall
        retain     at least      one-eighth       royalty.”       Th.e only limitation
        on the discretion           of the Commissioners1            Court in that re-
        gard Is that the royalty               shall   not be less than one-eighth.

                      In lt. ‘G,~Wilmot ‘Coal Co. v. State Purchasing
        Cosimlssion,, ,54,; S. W. (2d) 634, 86 A.L.R.        127, It Is held
        that in determining       who Is ‘the “lowest   and best biddernthe.
        purohasing     commission must consider      not only the amount of
        the bid, but also business         judgment,  capacity,   skill, I!+
        sgons ibility    of bidder,    and qua1 ity of goods proposed    to *
        be furnished .       (Emphasis’ added)

                    We are of the opinion        that Article    6400a of
        Vernon’s   Civil Statute&      requires   that the Commissioners’
        Court exercise     Its discretion      In passing on the question
        as to what constitutes       the highest     and best bid for a min-
        eral lease,    which bid may be an offer        of a royalty   based
        on a fractional      part of mineral     produced ,from the land to
        be leased,    or Mayobe for part cash plus a royalty          of not
        less than one-eighth      of such production.         The Commission-
        ers’ Court Is authorized        to consider    all of the circum-
1..     .


      Don. W. L. Edwards,       Page 0,    V-379


      stances   and, In its discretion,      decide whether     potential
      prospects    of discovery   of mlherela    and the value of a
      drllllng    contract   with a lessee   aa dlatlngulshea      from an
      “unless   lease”,    whloh authorizes   extenalona     by payment of
      rentals,   will be ln the interest      of the county.
                                    SWARY
                   DedlostIOn      of a perk to the public          doea
            not require       a grantee,    and if made upon a re-
            corded map of a townsite,           ssle of lots in suah
            townslte      by the dedicators,       with referenoea       to
            suoh map, constitutes          aoceptanae      of suo,h dedl-
            cation     on behalf    of such purchasers        and also on
            behalr     of the public,      which thereupon       becomes
            1 rravoaabl    e. Such dedloatlon          and aoceptanoe
            oreate     separate    easements ,for oustomery         park
            uaea in the publio         and also in auoh lot pur-
            chasers,      with the fee title        rermlnlng    in the
            aealaator.        Suoh a dedication        may be vacated      aa
            to the publla aa provided           ln Art.     7227, V. C. 8.,
            Eldelbaah      t. Davis,     99 9. W. (2d) 1067.
                   The deolalon  aa to what conatitutsa   the
            highest and beat bid, aa used in Artlole    5400a.
            V.C.S., ror e mlnerai lease Of county owned Iand
            i$l;~mtt he aound diearetion    or the Commiaafon-
                       .
                                                   Yours    very   truly




                                                   W. T. Willfame
                                                   Asrrirtmt




                                              ATTORNEY GEiitRhL

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