               THEATTOIRNEYGENERAL
                        OF TEXAS
                          AUSTIN   11. TEXAS

                              July 5, 1960
:';onorable
          R. Jack Cook
County Attorney
Kleberg County
Kingsville,Texas                      Opinion No.    ~~-870
                                      Re:      Authority of Kleberg County :*.
                                               to execute an oil and gas
                                               lease on a county road right
                                               0f:way.
Dear Mr. Cook:
     You request the opinion of this office upon the question
of the authority of Kleberg County to execute.an oil and gas
lease of the right of way of a county road In said county. A
certified copy of the deed under which the county claims title
to the oil and gas under the right of way'ls submitted with
your request.
     As an in:-tlalapproach to 'yourquestion; we deem It net-             ,
essary to construe.theright of way deed to determine if it
conveys a fee simple title or a lesser estate, such as an ease-
ment .

    .,Xeconstrue the deed to the county here involved as con-
veying a-fee simple title, notwithstandingthe phrase at the
close of the.granting clause, "&Id two strips being for the
use of the county of Kleberg as a county road". This construc-
tion Is supported by the weight of authority in this State,
and is in &ccord with such cases is EL:nes, et aI vs. IWLaine,
                    X.2d 777(1953),~es         there cited
                    ladewater County Line Independent Scholl
                    90  7b S.M.2d 471 (1934). These case7
-that     in the absen;e of clear and explicit exceptions,
r&ervations tad conditions limiting the grant, a fee simple
title will be assumed to have been granted instead of a lesser
estate, such as an easement. P.careful examination of this
deed, Including the granting clause and the habendum clause,
leads to the conclus%on that F;fee simple title was granted.
By the langu&ge of the deed, .therhe ~,*ixt;f'zg
                                              clz:se recites:
              "R:ivegrated, sol,dr;ndconveyed ind by these
         presents do grant, sell and convey unto Ben F. Wilson,
         County Judge of Kleberg County, Texas* and his suc-
         cessors in office . e 0"
followed by the descriptionof the property. The habendum
clause recites:
         'To n;.veznd to hold the above described prem-
    ises, together .zl.th
                        all and singular the rights and
    zppurten;.ncesthereto in any wise belonging,unto
    the said lienF. Zilson, as County Judge of Kleberg
    County, Texas3 and his successorsand its assigns      _
    forever."
The -%arrantyprovision states ?&warrant +nd forever defend all
and singular the said premlses,untothe said Ben F. #llson, as
County Judge of Kleberg County, Texas, and hissuccessors and
its assigns . . :' The above quoted phrase as to the two strips
being used by the county of Kleberg as a county road does not,
in our opinion, cowert the deed into a grant of a mere easement;
it merely restricts its use.,or m?&es the gr&nt subject there-
to. in brief, it is not such a clF;,ar exception, reservation
and conditionas to evidence the granting of merely an ease-
ment.                            .:
     The fact that the deed is to the County Judge instead of
directly to the county is not important.' It Is; nevertheless,
a deed to the county.
     Eaving concluded that the deed conveys a fee'simple title
and not merely an eisement,: we come to the crucial question:
does the county o%n the land embraced &thin the highflaythat
is conveyed by the deed? The fact that the.~deedconveys a
fee slmple title does,not compel the conclusion that the county
owns the lznd embnwed In the right of WAY, Including the oil
and gL,stherecnder. The question of Site versus county ovmer-
ship of rozds or hQh~s.ys h.r.sbeen co;?sideredby the Courts of
this %ate severil times, b.ep,S.nningwith the case of Travis.
                    88 Tex.. &2, 31 s.:J*358 (18953; fi%‘T%is
County vs. ~.r+gdd~~~
early dz%c-th,e ;%preme Court held that the roads and hlghr:ays
of the Z‘tatebelong to the %.;,teand not to the counties !&thin
;:hlchthey ee loci..ted.See LLso Z3oone.v.Clark, 214 S.X. 607
(a.~.:-.pp.1919, wit ref .). Tne nmGsy?d            by the
Su reme Court is Sobbir!svs. Limestone Count US114~Tex. 345,
268 3 a:I
       .. 915 (192~~.~~c.::se,       the lega
                                            9 title to the pro-
perty ~V;S1.nthe w~wty, bs .isthe case here. In that case,
the Court se.5.d:
                 the title, urdder the authoo.rity
          '.~1hile                               of l&s,
     as (~&en iyjthe vv,
                       ..6~~~e
                            of the county and under
     stttutorye.uthor9tysand the county 'wasauthorized     .
     ;nd charged ~tiththe constructionand maintenance
     of the public roads tithia its boundaries,yet It
     w-asfor the state and for the benefSt of thenstate
     and the people thereof."
                                   ."
The next case on this @estion considered by the Supreme Court
is the case of _~_
               St-.te
                 _,._ vs 'Ha.le136 Tex. 29, 14.6S.W.2d 731 (1941),
                   "-_~.:.~-^P-~...".~~)                             '
In %hlch the Court sc>.i.d:
    Honorable E. Jack Cook, p&&e 3 (WW-870)

.

              "That public roads belong to the State, and
         that the State has full control and authority over
         same, is now well settled. Travis County v. Troaden.
         88 Tex. 302, 31 S. 'ti.
                               358; FkZ%Eis v. Limestone county,
         sunra."
         Note that the Supreme Court In this case said that the ques-
    tion is now well settled that the State and not the counties own
    the roads and highways. Other'casesin which the question has
    been considered and State ownership confirmed are: West vs.
    w             116 Tex. 472, 478 and 294 S.W. 832, 833vT)
                y vs. Hall, 56 S.W.2d 943, 944 (Civ.Rpp. 1933,
    e&or dism.); St?:tevs. Halone, 168 S.ii.2d292, 296 (Civ.iLpp.
    1943,.error re'f.w-r            Nueces River Water Supply
    District vs. Live Oak Co;nty,l2 S.W.2d bgb, m-p.
       6, no writ hist . .
         We quote the following from the case of State vs. Malone
    referred to above to show that it is immaterial when and In
    what manner this road was acquired.
              "The public road constitutingthe highway had
         no doubt been in existence many years. In what manner
         the right of way was acquired does not appear from
         the record. Eut at what time or In whatever manner
         it wds acquired the ovmership was in the State. This
         question is fully discussed with citation and anal sis
         of authorities in Nobbi.nsvs. Limestone County, 11)I
         Tex. 345, 268 s.W.~~(Emphasis       supplied).
        The fact t&at the i.eg~Lsl:iture
                                       may delegate to counties
    certain authority9 power and supervisionover roads and highways
    within their boundaries does not operate to devest the State of
    title and vest it in the counties.  The Robbins vs. Limestone
    County case m-&es this quite clear.
         We have not overlooked ,theeffect that should be given
    in considering this question to Art. 542113,Vernonls ~Clvil
    Statutes. It is sufficient to say in connection with the con-
    struction and operation of this statute that by its specific
    term it applies only to such lands as may be owned by a politi-
    cal subdivision,
         Since we have held that the State, and not the county, owns
    the public road involved in this opinion request, Art. 5421p,
    Vernon's Civil Statutes, has no application. We assume, in the
    absence of any i.nfo.rm:itlon
                               to the contrary, that there has been
    no severance of the surface and mineral estates as to the land
    covered by the deed. Hence, the State by virtue of its owner-
    ship of the land embraced in this right of way likewise owns
    the oil and gas thereunder.
-,        l
                                                              .
      .




     Honorable ?.   J;i&   i;cok,p;:ge4 (::;i-8’70j


         .The county, therefore; haspno lawful authority to make
     a valid oil and gaslease on a county'roadright of vzy In
     the absence of ~sozae
                         legislativeauthority conferring such
     power.


                   ..Theownership.ofpublic Goads is in
               the State an,dnot the counties within which
               they are located. Therefore,Kleberg County
               has no legal authority to execute an vi1 and
               ges lease on the county road right of :rayin

                                          Very truly yours,
                                          WILL X&SON
                                          Attorney General'of:.Texas   *




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     Thocicn.3. ?a&, III         __


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