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                             June 20, 1952

     Hon. George M. Kelton     Opinion NO. V-1468
     County Attorney.
     Ector County              Re: Authority of the Commis-
     Odessa, Texas                 sioners' Court to issue
                                   bonds and levy and col-
                                   lect taxes to build a
                                   livestock and mineral
                                   products exhibit build-
                                   ing on a tract of land
                                   which is subject to a
     Dear Sir:                     mineral lease.
               Your request for an opinion of this office
     reads in part as follows:
                 11
               . . . your office is respectfully re-
         quested to furnish an opinion as to whether
         or not the Commissioners' Court of~Ector
         County, Texas, is authorized to issue nego-
         tiable bonds of the County and~to levy and
         collect taxes in payment thereof for the pur-
         pose of building a permanent building to be
         used f~orlive stock.and mineral products ex-
         hibits, on a loo-acre tract of land which
         said land is subject to an oil and gas lease."
               It was held in.Adams v. McGill, 146 S.W. 2d
     332 (Tex. Civ. App. 1940, error ref.) that counties
     could build such buildings under the &ovisions of
     Article 2372d, V.C.S.~,but had no authority to issue
     bonds for this purpose. Article 2372d-2, V.C.S., was
     subsequently enac~tedin order that the.construction
     of these buildings might be accomplished through the
     issuance of bonds. Att'y. Gen. Op. v-962 (1949). There-
     fore, if the commissioners' courthas authority to con-
     struct the building it has equal authority to issue
     bonds and levy taxes for this purpose, assuming, of
     course, that the taxes levied will not increase the tax
     rate for permanent improvements to an amount which ex-
     ceeds that established under Section 9 of Article VIII
     of the Constitution of Texas.
                                                               ._




Hon. George Me Kelton, page 2    (v-1468)                           -




          The only question for determination is
whether the existence of the oil and gas lease will
prohibit the commissioners' court from constructing
the building in question.
          In Brazes River Conservation Reclamation
District v. Adkisson, 173 S.W.2d 294, 298 (Tex. Civ,
App. 1943, error ref.), it is stated:
            "An oil and gas lease carries with it
       the right to possession of the surface to
       the extent reasonaiblynecessary to enable
       the lessee to perform the obligations im-
       posed upon him by the lease."
            In Grubstake Inv. Ass'n. v. Coyle; 269 S.W.
854,   855 (Tex. Civ. App. 1925, error dism.), it is stated:

            ltInthe construction of an oil lease con-
       tract.such as this, it must be construed most
       strongly against the lessee, for he is contract-
       ing only for the right to bore for minerals
       beneath the surface of the earth. He acquires                --
       no title to the surface, or any other right,
       except for the sole purpose; that is, a use
       and easement of the surface. Since that is
       the case, in a controversy such as this, the
       lessor retains and has parted with no surface
       rights to the use of the land for any purposes
       save the mineral rights, and what incidentally
       and contractually goes with that right. The
       contract gives 'the right of ingress and
       egress at all times for the purpose of drill-
       ing and mining and operating for oil and gas
       and other minerals, and he shall have the ex-
       clusive right to drill well, lay pipe lines,
       build tanks, and other structures.' These
       rights are sec'ureand prior to any right of
       appellees. 0oD
            "It was a question of fact as to whether
       the occupancy by appellees of the small part
       of the 20-acre lease did interfere with the
       reasonable use in the development of appel-
       lanks ' oil and mineral use under the surface.
       a**
          Based on the above authorities it becomes obvious
that an answer to your question presents one of fact which
                                                      __
this office can neither pass upon or answer categorically.
     Hon. George M. Kelton, page 3   (v-1468)


     If, however, the aonstruction.of the building will not
     interfere with the rights of the lessee Under the provi-
     sions of the oil and gas lease and further if the opera-
     tions under the provisions ,of the oil and gas lease will
     not prevent the use of,the building for the purpose of
     exhibiting livestock and mineral products, it is our
     opinion that the commissioners' court of Ector County may
     issue bonds and levy and collect taxes for the purpose of
     building a permanent building to be used for this purpose,
               This opinion is limited to oil and gas leases
     generally and does not purport to pass upon any specific
     provisions or reservations which may appear in the lease
     in question since we have not been furnished with a copy
     thereof. In this connection, as a matter of practical
     relations with the lessee, it would probably be wise for
     the commissioners' court to advise the lessee of its plans.
                               SUMMARY
              The Commissioners' Court of Ector County
         is authorized to build a livestock and mineral
..       products exhibit building on a tract of land
         owned by the county which is subject to a
         mineral lease if the construction of the build-
         ing will not Interfere with the rights of the
         lessee under the provisions of the lease and
         if the operations under the oil Andygas lease
         will not prevent the use of the building for
         the purpose of exhibiting,llvestock and mineral
         products. Under Section 2 of Article 2372d-2,
         V.C.S., the county may issue bonds for this
         purpose.
                                         Yours very truly,
     APPROVED:                             PRICE DANIEL
                                         Attorney General
     J. C. Davis, Jr.
     County Affairs Division
     Mary K. Wall
     Reviewing Assistant
     Charles D. Mathews
     First Assistant
     BA:am
