Untitled Texas Attorney General Opinion ( 1962 )


Menu:
  •               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 61
    S"W. 1010 {Civ.App.J; Childress County v. State, 12'(Tex. 343,
    
    92 S.W.2d 1X
    1; 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