            THE   ,*~ORNEY         GENERAL
                       OFTEXAS




Mi-.0;J.S: Ellingson
Gyeral Manager
Texas Prison System
Huntsville, Texas
Dear Sir:                 Opinion Ro. O-3357
                          Ri: DOW   lessee of vendor under a-~
                               deed reserving minerals have the
                               right of ingress and agress'for
                               the purpose of exploiting such
                               minerals?
       This will acknowledge receipt of your letter-of March
29, requesting the opinion of this Department. 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.
       "Recently a man by-the name of Richards set up
    a derrick and other equipment for sinking a shaft to
    operate a salt mine on the Edward Drew Survey which
    comprises part of the Blue Ridge State Farm purchased
    from Mr. Bassett Blakelg.
      "Please refer to the deed In your possession and
   advise if Nr. Richards after entering into a lease with
   Mr. Blakelg would have a right to move In on this property
   without consulting the prison system and if your an-
   swer Is yes, Would we have a rLght to all damages
   sustained or would the necessary damages for the op-
   eration of a salt mine be exempted?"
       We wrote you that the deed to which you refer in your
letter was not In our posssesslon and requested thatwe be
furnished with a copy thereof. A copy of this deed was enclos-
ed in your letter of April 18th, receipt of which we acknowledge.
       This deed contal.nsa mineral reservation and we quote
the following pertinent excerpt:
       "It IS further agreed and understood that the
Mr. O.J.S. Ellingson, page 2          O-3357


    said Bassett Blakely does not convey by this in-
    strument any of the 011, gas or minerals upon, in
    or under sala land.     .....The grantor, his as-
    signs and leasees,   shall have the right of ingress
    and egress in the lands herein conveyed for the
    purpose of exploiting the said lands for oil, gas
    and other minerals, but such right shall be exer-
    clsed in such a way as to occasion no unnecessary
    damage, either to the surface of said lands or to
    any growing   crops thereon, and all actual damages
    occasioned by the exercise of said rights shall be
    paid to the Prison Commission."
       In view of this express provision in the deed by which
the prison system acquired title to the land, there can be no
questlon that the vendor's lessee has the right to enter upon
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. Donnell v. Otts (Civ. App., Ft. Worth, 1921),
230 3-W. 864.
       "The law is well settled in this state that.
    the lessee (under a mineral 1ease))has the right'oi
    possesslon of any part of the surface of the land as
    may be reasonablg,,necessargfor development and ex-
    ploration,          United North and South Of1 Co. v.
    Mercer (Civ,'App:, Austin, 1926) 286 S,w. 652S
       However, under the provisions of Article 6166g'(Vernon's
Ann. St.) the Texas Prison Board is given the exclusive manage-
ment and control of the prison system and all its propertles.
       As we understand your inquiry, the property in question
constitutes a part of a prison farm, and we realize that there
might be some conflict between 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 officials nor the owner of the miner-
al estate may wantonly disregard the rights of the other upon
the surface of the land in question:
      "It has been sald that there is an implied contract
   between the owner of the surface estate and the owner
   of the oil and gas that each ~111 exercise his right In
   such a manner asto avoid Injuring the other.   31 Tex.
   Jur. 559. See also Humble 011 & Refining Co, v. Wood
MR. O.J.S. Ellingson, page 3         0 -3357


    (Corn.App. Sec. B, 1927) 294 S.W. 197.
       The situation as you have outllned it appeals to us as
one which might be equitably adjusted between the parties through
consultation. We do not believe that the right of the prison
officials to require that entry upon the land in question be
such as ~~111 not interfere with the conduct of the prison farm
can be questioned.
       Such requirements mst, of course, be reasonable and
such as will not substantially interfere with 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 "all actual damane
occasioned by the exercise of the right (to extract the minerals)
shall be paid to the Prison Commission."
       Trusting that we have sufficiently answered your in-
quiry, we are
                                 Yours very truly
                               ATTORNEY GENWAL        OF TRXAS
                                                 .~

                                 By s/Peter Maniscalco
                                      Peter Manlscalco
                                      Assistant

PM:AMM:wc
APPROVRCIWAY 14, 1941
s/Grover Sellers
FIRST ASSISTART
ATTORWEY GRRRRAL
Approved Opinion Committee By s/GRL Chairman
