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EA ORNEY GENERAL OF-XAS March 12, 1962 Honorable James S , Grisham Opinion No. WW-1273 Criminal District Attorney Canton, Texas Re: Whether a county can law- fully convey the minerals to its grantor on lands acquired for State Highway purposes on grounds of a mutual mistake in acquir- ing a fee simple title Dear Mr. Grisham: instead of an easement. Recently our office received an opinion request from you consisting of the letter comprising your request and a letter attached thereto, addressed to you and written by County Judge Truett Mayo. Judge Mayo's letter reads in part: I, Some thirty years past the State and County secured right of way for a State Highway Andyin so doing the right of way deeds were ta{en in the name of the County. . . . Your opinion request then asks the following question: "Where the County, in obtaining right-of-way easements, does so by ac- quiring complete fee title by warranty deed, which, of course, includes the mineral rights, whereas it was only necessary and the county only intended to acquire easement over the surface rights for the construction and main- tenance of roads and the inclusion of the mineral rights was a mutual mistake between the parties: "Under these conditions, may the county legally reconvey the mineral right~sto the former ownership of thee land?" Land acquired by a county in the name of the county for the construction of State highways, is State property Honorable James S. Grisham, page 2 (WW-1273) irrespective of the fact that the deed is made out in the name of the acquiring county. The Supreme Court of Texas in Robbins v. Limestone County,
114 Tex. 345,
268 S.W. 915(1925) reiterated in its opinion this law relating to the ownership of public roads and the control and authority thereover. On page 918, column 1, the Supreme Court said: But are public roads within the borders of a county its property, and is its title and control its own and inherent in it? 'In their very nature and as exercised by the general sovereignty they belong to the state. From the beginning in our state the public roads have belonged to the state, and not to the counties. This is clearly reflected in the Constitution and early decisions of this court. n . . * . "Public roads are state property over which the.state has full control and authority." (Emphasis added.) Likewise, the authority to dispose of State lands, including State highway lands, resides exclusively in t e Legis- lature of the State. 38 Tex.Jur. 633, State of Texas, B 34; 34 Tex.Jur. 46, Public Lands, 6 25. A search of the Texas statutes fails to reveal the enactment of any statute by the Texas Legislature that would delegate the legislative right to dispose of public land and interests in existing State highways to the County Commissioners Court or any other officers of the county. In 34 Tex.Jur. 440, Public Officers, 8 67, it is said: "Public officers and governmental and administrative boards possess only such powers as are expressly conferred upon them by law or are necessarily impli:d from the powers so conferred. . . . Honorable james S. Grisham, page 3. (WW-1273) State v. Cage,
176 S.W. 928(Civ.App., error ref.); Callaghan v. McGown, ,gO S.W. 319 (Civ.App., error ref.); Eastin v. Ferguscn, '
2 Tex. 643, 23 S-W, 918; Harlingen Ind. School Disk. V. C. 5. Fage & Bra.*
48 S.W.2d 983(Com.App.); State ~ School Dist. No. 6 v. Farwell Ind. SchoolDist., Line C.onsi:1.
38 S.W.2d 61S"W. 1010 {Civ.App.J; Childress County v. State, 12'(Tex. 343,
92 S.W.2d 1X1; Canales v. Laughlin, m Tex. 169,
214 S.W.2d 451; Hill v, Sterrett,
252 S.W.2d 766(Civ.App., n.r.e.). Since State highways are State property over which the State hapsfull control and authority irrespective of whether or not the right of way was acquired in the name of the county or the State, an? since the Legislature has enacted no statute authorizing the conveyances of any interest in an existing State highway by a County Commissioners Court or any county officers, nei.therthe &CountyCommissioners Court of Van Zandt County nor any ether county officials can convey the mineral rights of any L Stase highw&v ts the criginal owners of the land, which land now comprises a part of such highway. Therefore, we answer y2u1 question In the negative, the county cannot legally recon- ve,ythe mineral .rights,tothe former owner of such lands. There .doesexist, however, a method by which land not needed for highway purposes and which interest in land was cc,tIntended ts 'belncL'j.;ledin the acquiring deed but was iri CT1,!.:!3,ed by error may be returned to the grantor. The method to be emp~icyedis set out in Article 6673a, V.C.S. Said Article Fr::~vides 'insuch circumstances that the Governor of +hls ic,+ z,- 3 .:;;pona recommendatinn from the State Highway Com- __,,..- mi,ssicn ::?!.a5 he do so, may exenut,eand deliver such correction deed a3 is deemed necessary to rectify and resolve such error. S?JMMARY The n,.o:z3ty cannot convey to its original grant:crrs the mineral estate in land to which it has acquired the complete fee simple title by general :,%rrantydeed fz~rState highway pur- poses 'bec.suse of a mlltualmistake betweer::,r:e Farties in not excluding the miner31 estate from the trans- action. Honorable James S. Grisham, page 4 (W+f-1273) However, Article 6673a, V.C.S., provides that when an interest in land acquired for State highway purposes was not intended to be included in the acquiring deed but was Included by error, the Governor of this State, upon recommendation of the State High- way Commission, may execute and deliver such correction deed as is deemed neces- sary to rectify and resolve the error. Yours very truly, WILL WILSON Attorney General of Texas BY Assistant MR:ljb APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Thomas Burrus Jack Goodman Leon Pesek w. 0, Shultz REVIEWED FOR THE ATTORNEY GENERAL By: Houghton Brownlee, Jr.
Document Info
Docket Number: WW-1273
Judges: Will Wilson
Filed Date: 7/2/1962
Precedential Status: Precedential
Modified Date: 2/18/2017