Untitled Texas Attorney General Opinion ( 1952 )

.-
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