                                                  R-148


                                  OFFICE          OF

                   THE ATTORNEY                    GENERAL
                                AUSTIN,      TEXAS
pRICE   DANIEL                  March 6, 1347
*TTTORNEY
     CEXEHAL

          Hon. Ernest 0. Thompson, Chairman
          Railroad Commission of Texas
          Austin, Texas       Opinion No. V-74
                               Re:     Application of Attorney
                                       General's Opinion No.
                                       0-318i dated March 24,
                                       1941, to facts of pend-
                                       ing Rule 37 case in Haw-
          Dear Sir:                    kins Townsite.
                    This Is in response to the request contained
          in your letter of February 10, 1947, for an opinion of
          this office whether the general rule set forth In answer
          to question "9" of Attorney General's Opinion No. 0-3181,
          dated March 24, 1941, applies to the facts of a pending
          Rule 37 (well spacing) case Involving lands in the Raw-
          kins Townslte.
                    In answer to question "g", this office held in
          Attcrney General's OpFnion No. 3131 that as a general
                where an individual owns lands on each side of a
               c street or road "dedicated as such (for) many yeaw",
          ol;nershlpextends to the minerals under the street or
                 To quote from the opinion:
                      "A conveyance of a lot bordering on a
                 streer,or alley ordinarily passes title to
                 the center of the street or alley, subject
                                         + unless a contrary
                 to the public's easemen,,
                 intention is expressed in plain and unequivo-
                 cal terms. * * * Since the two iots and the
                 street together constitute one continuous
                 tract, so far as the ownership of the minerals
                 iu concerned, the street acd the two lots must
                 be considered together in determining whether
                 "A" Is entitled to a permit to drill a well
                 to precrnt ,tkeconfiscation cf his property."
                    You hsve underscored thet por%ion of the opln-
          ion pointing cut that:




                   .--._l--l_l-.--.,        --.             .._ ._.____..... ~.~~~-~~
                                                                  -,--
Hon. Ernest 0. Thompson - Page 2, V-74


        "'Itxceptional
                     cases my &rise where the
         grantor did net own any interest in the
         land covered by the road or street, and
         in such cases, of CGurse, the purct4ser
         of the lot would not by such conveyance
         acquire any title in the land covered by
         'theroad or street."
                The rule of      the      Atts~neg   Genfr:~l'3   CY~~E?~::Y~
Of     ME!Xk   2&,   1941,   6ss1.lrne3    i.mport&xe   I..il
                                                            thn   f;?..?ta?<,
case in determining whether the Commis-lcn's rule
agai.nst3ubdivFsloti3 cf May 29, 1934, zpplLesA The
Commission's spec,lngrrllefor the Hawkins Field, 8~3
the rule against subdislsfons provide:
         "No well shall be drl.114 hereafter for
         oil and gas c,reither of them nearer than
         nine hundred thirty-three (933) feet to
         any other completed or drilling well on
         the same or adjoi.ningtract or farm, and
         no well shall be drilled nearer than four
         hundred sixty-six (466) feet to any pro-
         perty line, lease line or subdivision
         line; provided that, subject to the fur-
         ther provisTons hereof, the Commission,
         'fnorder to prevent waste or to prevent
         the confiscation of property, will grant
         bxce   ons to ermL   drilling within
         ~~~~~~~~s4"~~~1~~a~~~~~
         that such exceptIons   are necessary either
          ,O prevent waste or to prevent th, e con-
         ??i.scatlonompropsrtv.   * * *"(Emphe.5is
         xupplled)
         "IT IS ORDERED by the Railroad Commlscion
         of  TexE3,   that IG applying Rule -17 ',Srac-
         lng Rule) of State-wide applicatfon an%
         in applying every rule wLt'nrelatl.octo
         spacgng In every field in this State, no
         subdivision    of property made subsequent
         to the ;?doptionof the original spacing
         rule wrll be cona13e:redIn determl,nl.ng
         whefhe.ror no?,eny property is being con-,
         Pis'cs?.ed  withlr: t;li~
                                 terms of such~spaein~;
         ruie, a ~6 r.,o ~u':);ii~~~~l,s:on
                                      of praperty Fi,ll
         be regarded i!?~  epplying such spacing rule
         0.~1-nrt~.te:rmPn~.~m r.hematter of"cc~nfi~sc6-~
                             .~/
         tion L:'such sn'bdfvisiontook pl&ce subse,'..
Hon. Ernest 0. Thompson, Page 3,   V-74




     quent to the promulgation and adoption
     of the original spacing rule.”
          In the case pending before you, applicant's
lessor owns Lots 9 and 10 in Block 7 of the Hawkins
Townsite, the land upon which a well permit is applied
for under the confiscation exception to the spacing
rule, and also owns one and a fraction acres of land
directly north of appiicant's tract, but separated from
applicant's tract by a public street or road of the Town
of Hawkins, known as Forest Avenue. The two tracts of
land north and south of Forest Avenue were leased sep-
aretely by applicant's lessor to different lessees. Lots
9 and 10 combined are too small to permit drilling with-
in the distances from lease lines set forth in the spacing
rule. Applicant and his lessor claim !-Lotto own the land
underlying Forest Avenue, and therefore claim to be en-
titled, under the confiscation exception to the spacing
rule, to at least one well permit on combined lots 9
and 10 under the well established rule of Dailey v. Rail-
i-cadCommission, 133 S.W. (2d) 219, writ refused, and
numerous other cases, so holding.

          Those protesting the granting of the well per-
mit contend, on the other hand, that since the applicant's
1s
-,e-sorowns land on each side of Forest Avenue, the gen-
eral rule announced by the Attorney General's Opinion No.
G-.XlSl,question 9, applies so that when the applicant's
lessor leased tinetracts north and south of Forest Avenue
separately to different lessees, the Commission's rule
of May 29, 1934, against subdivisions was infringed. As
YOU know. it is well settled that no subdivision lessee
is entitled as a matter of right to a well permit under
the confiscation exception (Railroad Commission v, Miller,
165 S W. (21) 504). In such cases it is the Commission's
duty to ente&iln.sn application upon the entire land
area as it existed prior to subdivision, and to locate
the well u~ponthat portion of the entire tract as tnag best
comport with conservation practices. See Attorney Gen-
eral's Opinion No. o-7046-~, dated March ?, 1946.
          The general rule set forth in Attorney General's
Opinion No. C.,31?1,is, as stated by the court in Gold-
                                                  ----
smith v. Humble 011 & Refining Company (Texas'Supreme
Court, Februarvm>T4'/,    unreported as yecI-.):
     11** f based upon the weil established
     general rule applied in Rio Bravo Oil
     Company -U. Weed, 121 Texas h27, 50 S.W.
Hon. Ernest 0. Thompson - Page 4, V-74


      2d 1030, which was f'ollowedin later
      declIsions,that when a conveyance i3
      made of a lot or a tract cf land a-
      butting upon a street or highway, the
      fee to which belongs tc the owner of
      the abutting land, a presumption Is
      indulged that the grantor intended ro
      convey the fee to the cen~terof the
      street or highway, or all of it de-
      pending .u~onthe circumstances unless
      a controrv intentlou  is shown., cox v
      ~~ampje11,v135 Texas 423, 143 S.W. 2d
      361; Cantleg v, Gulf Production Co.,
      135 Texas 339, 143 S.W. 2d 912." ,~

          The rule,has been termed "a rule cf con-
striction, and not an absolute rule of law", 11 C.J.S.
5S2, B 35, to determine the intention of the parties
to conveyances. There are many qualifications to the
rule, one of which, as pointed out by the writer of
Opinion No. O-3181, is that the grantor to the deed
must have owned the land covere.3by the road or street
at the time of his ccnveyance, or else title tc such
area could not pass to the grantee. Day v. Chambers,
62 Tex. 190, Roberts v. Shell Pipeline Corporation,
175 S.W. (2d) 106. From the recent opinion of the
Supreme Court in the Goldsmith case, it is apparent~ '
that there are other qualifications. In order to
raise the presumption, the deed or conveyance must
make reference to a road, passageway, or alley (or pos-
sibly to a map or plat shoving a road, passageway, or
alley); and, as stated by ths Count:




      m easaent at the time when-&e deed-.Ls_.
      made. We have-&       no case aon&j-ng-&.e-
      presumption when the conveyence make3 no
      reference to a highway, street cr pa3sage-
      way and when, at the time the deed is exe-
      c utcd, tie
      '---i--  w   an              not bounded2
      3 t-A~;hw~a~,
                  streat or passageway in which sz
      easement has been created or acquired.' .-.-
      T,E~?i s sup~iied )
            l'%eCourt then proceeded to holedthat since no
street,   reed, or alley was shown to have existed in l?&
Hon. Ernest 0. Thompson, Page 5, V-74


when the land in question was conveyed, there was no
occasion to indulge the presumption merely because a
streetor alley was shown to have existed at a later
date. In reaching this result the court relied upon
the authority of Raleigh-Hayward Co. v. Hull, 167
Wash. 39, 8 Pac. mL' ,Li).     that case although the
land was conveyed by lot and bnlocknumber by refer-
ence to a plat showing the street area in question,
it waa held that since the street was not I.nexistence
at the time of the conveyance, no title to the street
area nassed to the grantee. This rule is alao stated
in ll*Corpus Juris Secundum, g 35 at page 5:34;and see
Perr v. Ball, Tex. Civ. App
hx            Brothers, 65 S:~.ii~d~'~~7~3;?~,"tn~,~~,-
e .
          From the foregoing we gather that to support
the presumption of title stated as the general rule In
Opinion No. O-31,%, the following must appear: (1)That
the grantor owned the land beneath the road, street,or
alley at the time of the conveyance; (2) that the deed
refer to a road, street, or alley, or to a plat show-
ing an abutting road, street, or alley; (3) that the
road, street, or alle be in existence at the time of
the conveyance; and .($ ) that it is the first conveyance
by a ~grantor of his land bordering on a road, street,
or alley; the fee to which is also owned by him, that
controls, and not subsequent conveyances. With these
rules in mind we shall review the facts which are be-
fore you a3 we have athered them from your letter and
from your files 31,5fi4, 31,6&2, 32,180, 32,747 and
32,747-A.
   ,
          In lo;70J. P. Blackburn and wife conveyed
320 acrea of land in the Brewer Survey, Wood County,
Texas, to A. A. Bleckburn and wife. Of this 320 acre8
A. A. Blackburn and wife thereafter conveyed 90 apres
to the Texas 8;Pacific Railway Company in 1873~  Some-
time after that date, the exact date not being shown,
the Texas & Pacific Railway Company platted, or en-
deavored to plat, the 90 acres into lots, blocks, and
streets as the Townslte of Hawkins. The reason that
the exact date of the platting of the Hawkins Townsite
is not in evidence, it appears, is that the Courthouse
at Wood County burned in December, 197?, and all records
were deatroyedL The oniy presently recorded plat of the
Townaite IS one fiie3 for record by the Texas & Pacific
Railway Company in the year 1909. The reason It is
stated thst :he Texas & Pacific Railway Company 'Ien-
deavored to plat the ninety acres" Is that it appears
Hon. zrn.e3t0. Thomp3xi -'Pagt.5, V-7Q




          The 90 acres conveyed to the railway In
l?sj cane out of the Southeast quarter of the Brewer
Swveg , the north bcundsrjrline of which quarter was
toe north boundary line of A-A. Blackburn's 326acre
tract. The conveyance to the Reilway Companv by
Slackburn of the 9O-ar:retract did not follcw this
north boundary line, however, but ran to the south
thereof,~leaving in Blackburn a triangular tract of
approximately 5 acres bounded by the north-west line
of the Texas and Pacific Railway Company go-acre
tmct, by the eastern boundary line of the Eleckburn
tract, and by the northern boundary line of the ori-
ginal 320-acre Blackburn tract. Within this triengu-
lar 5-ec,retract lies the applicant's tract and For-
est Avenue, separating his other lends to the north.
          It 1,scontended by the protestant that 3om9-
tlrne      the criginal.dedication p&t of the Texas &
        after
Pacific Railway Company wes filed (the date of which
la net shown in evidence), the Rsilwey Company sold
Lots 3 and 10 of Block 7, oppl.i.eantVa
                                      tract to aoaecn?.
To quote from proteatantPs moticn for rehe%rio~g,your
file NO+ 31,642:
             'Petitioner d oe3 not k-ncvtileex‘5ctdeite
        cf this conveyance nor to whcm it wan made,
        since the deed records of Wood Coi:nQ, Taxes
        containing the record of the deed were deatrcy-
        Cd b:?I"iI?t?.This deed under the lwcrsof Tsxtis
        opertitedto convey the fee title to that port:ion
        of Forest Street abutting (Lots I!and lo), to
        the grantee subject to the easement in fever of
        the public *"
          Applicant, on the other hand, proved that L&s
9 and l@ came to his lessor in e chain of title.,fromC.
A. Rsrgett and his wife, B. L. Hargett, under a deed, of.
fared in evidence, dsted February 21, 1896.  It we3 un-
contradicted that "B.L. Rergett" was Beuleh L. Bargett,
the daughter of A.A. Blackburn and wife, Jane E. Black-
&-n.   Applicant therefore contended that since there wk.1
nothing in the record to show that the Kargetts acquired
title to Lots 9 and 10, Block 7, from the T. & P., it
?!yetbe assumed that title was acquired by Ers. ISrg'tr
Hon. Ernest 0. Thompson - Page 7, V-74


by descent or by will from her father, A.A. Blackburn.
Parenthetically, It is the writer's opinion that it
would be more logical to assume that Beulah Blackburn
Rargett acquired the property either by descent or de-
vise from her father than it would be to assume that
her father sold the property to the T. & P. Railway
Company who then in turn sold to his daughter.
          The date of A. A. Blackburn's death was not
shown; nor was the existence of a road, street, or al-
ley shown at such time or at any time between the year
1873 (when Blackburn conveyed the go-acre tract,to the
T. & P. Ry. Co.) and 1896 (when Mrs. Hargett conveyed
the property to a grantee in applicant's lessor's chain
of title). The first date proved of the existence of
Forest Avetiue,or any street, read, or alley in Its
place is the year 1909 when the Railway Company filed
Its plat oftthe Hawkins Townslte showing Forest Avenue.
In this connection we quote from your letter:
          "No evidence Is found in the record that   '
     Forest Avenue was in fact a street in 1896 or
     at any time previous thereto."
          Based upon the record made in the case, we
have concluded that the facts necessary to g1.verise to
the presumption of law stated as a general rule in At-
torney General's Opinion No. o-3181, are not in evidence
before you. Under the protestant's theory this presump-
tion could only arise In connectIon with the alleged mlss-
ing deed of Lots 9 and 10, Block 7, from the T. & P.
Railway Company to a grantee or grantees unknown and given
at an unknown date, but presumably between the years 1873
when the T. & P. Railway Company acquired the go-acre
tract from Biackburn and the year 1895 when Mrs. Hargett
and her husband conveyed the property. Protestant cannot
produce this deed, It is alleged, by reason of'%he Wood
County deed records being destroyed in a fire in 1878.
In the absence of this deed we cannot determine whether
the grantor did or did not intend to convey the land area
under the alleged street.
          Protestant's theory of the case, In order to
prevail, and fa11 within the general rule of Opinion No.
o-3181, should be supported by: (1) 3~urveylngevidence
that the deed from A.A. Blackburn to the Railway Cornany
did in fact cover the road area of Forest Avenue; (27
Some character of evidence of the existence and date of
the alleged missing deed from the Texas & Pacific Railway
Hon. Ernest 0. Thompson - Page 8, V-74


Compeny to grantors in the Hergett chsin of title; (3)
and, 8s required by the most recent expression of the
Supreme Court in the Goldsmith case, evidence of the
existence in fact of a public road, street, or alley
on the dateofe     alleged missing conveyance.
          Applicant's theory of the case, In order to
be complete, should be supplemented by some character
of evidence of the means whereby the Hargetts ac ulr-
ed the applicant's property from the Blackburns 9 ei-
ther by descent, will, or deed); and if by descent or
Will, the date of Blackburn's death, and the non-ex-
istence of a public road, street, or alley along the
area now known as Forest Avenue on such date.
          The Goldsmith case was decided by the Su-
preme Court on-??&ruary 19, 1947, and it is evident
that the case before you was not developed under the
rule handed down in that decision. In view of this,
the undevelooed facts, end the recent decisions of
the Supreme Court in !?bomas v. Stanollnd Oil & Gas
         198 3.W. (2d
         198 S.W, (2d
         of the Commission un?.essclearly unreason-
able, arbitrary, or capricious, It may be that you
will conclude that.It would impose an unfair burden
on either the protestant or the appiicant to send
either to court on the basis of the record as it now
stands with the wei,ghtof your resumed fact findfnys
                                E--y----
On these undeveloped issues ageins   the party '.,
                                               -osing
before the Commission.
          Should you so conclude, it Is respectfully
suggested that you receive additional evidence from
the perties as outlined in this opinion.
                        SUMMARY
           (1) The general rule stated in Opln-
     ion No. o-3181 to the effect that where an
     individual owns land on each side of a pub-
     lic street, road, or elley, he Is ordinar-
     ily presumed to own the fee to the street,
     appiy
     subjectunles3
              to theclpub~icfs easement, does not
                        et tne time of the convey-
     ance the grantor of the deed owned the lbnd
     beneath the road, street, or alley; (2)
     the grantor's deed referred to the road,
     street, or alley or to a pl6t showing an
                           .




Hon. Ernest 0. Thompson - Page 9, V-74


     abutting road, street, or alley; and (3)
     the road, street, or alley was in exis-
     tence at the time of the conveyance.
          (2) Under the record made in a pend-.
     ing Rule 37 case, the Railroad Commission 4
     may conclude to receive additionel evidence
     from the parties under the rule of Goldsmith
     vs. Humble Oil & Refining Company recently
     decided by the Supreme Court, as io the ex-
     istence in fact of a publFc road, street or
     alley atment       dates, since the case be-
     fore the Commisslon was not develoned as re-




                     BY
     quired by the Goldsmith decision. -
                         Yours very truly
                     ATTORNEY GENERAL OF TEXAS


                               James D. Zmullen &#
                                      Assistant

JDS/ft/lh
                     APPROVED: March 6, 1947

                     2iiLcL?4LJ
                     ATTORNEY GENERAL

                     APPROVED: OPINION COMMITTEE
                     Bx, Chariman
