Untitled Texas Attorney General Opinion ( 1945 )

Honorable BIeoom Qllee, Commlerloner
Qeneral Land Office
Austin, Texas
Dear Sir: Opinion NO. o-6838
Re: Whether certain eubstanoes
r-wed from gold aohool land
are minerals and whether they
oan be developed in +ocord+noe
*th%t@e provl,s$oiso$ ``tl~le~
5388, et seq.; R: C.‘,&
We refer to your letter of Septe@+er 20,~194Fr whioh
reads as follorer
“I am confronted~rith the~probblsmwhether a~?-
taln aubetaneesremwed fm:s@t! Se&sol L8&td.origl-
nally Bold with a mine-1 a+‘~gwzing @.~rrsf~loutloa
prior to the eifeotlve date o$‘Ch@ptex?gi’JrAQ$S oi
the 42nd Legislature,1931, Cre ‘MWralE’ w$th$s the
meaning of the law.
“All mlnera18, exoept oil, gar, ooal md lignite,
may be developed on suoh sold 8ohool Land In lwm?a no e
with the provllrlonsof Artiole# 5388, et. seq., Revlred
Civil Statutes OS Teue, 1925.
“Acaordlngto the lnfomtion I have, the rubrtcn-
oea are eoopped up irem the cwiaoe.to We lad, 8~ re-
latively near the aurfaoe el the Imd, and We rhlpped
to oltrue fruit growing .reglow, nhere W&e aubrrtal~ ir
rpread on orohard land@. .1t ir my inrorartaoa trkat
rruohmaterlal~reoondltlonr .thecoil and UterIally rldo
the orohardr. Ar ts the type of material $0 tared,I,
have been Informed that It I# a kind of roil oempowd
of various chemloal eubatanoes. A sample of bhlr rrterlrl
Is handed you herenit,h. Coplee of eetteru fw Dr. g. P.
Sohooh, Dire&or, Bureau of +dustrlal Chsmintw,
University o? Texas, and Mr. W. D. UaMillan, Ulnlsg
Engineer, 214 N88h Building, Au&In, Texan, are eacloredi
Aleo enclosed are other data and oorrespondencedealing
with this question. All this ie fomrded to you with
the hope that It will be of e-6 reeietanoe.
Honorable &scorn Qlles, page 2
nI respectftillyrequest that you let me have
your opinion on the quebtlon whether such material
Is a mineral within the meaning of the law and whether
such material should be developed on the above-men-
tioned sold School Land In accordancewith the pro-
visions of Article 5388, et. seq., Revised Civil
Statutes of Texas, 1925."
To adequately answer your Inquiry,we must not only
determine the meaning of the word "mineral",but we should
also ascertaln if the Legislaturehad In mind minerals of
every description as well as combinationsof minerals as
reflectedby the analysis of the substancewhtch Is the sub-
ject of your letter. To do this we must look at Articles
5310, 5388, pertinent provisionsof which are quoted In the
opinion cited below, and Article 5400 which follows:
"Art. 5400. Surface rights.---The locator or
owner of a mining claim shall have':theright to oc-
cupy within the limits of his claim 80 much of the
surface ground as Is strictly necessary for the use
and explorationof the mineral deposits and for the
building and works necessary for mining operations
and for the treating and smelting of the ore pro-
duced on such claims and to occupy within and wlth-
out the limits of his olalm the neoessary land for
right of way, for Ingress and egress to and from-
his claim for rgadways and railways. If the lo- .'
cator or owner cannot agree with the owner or lea;
see of the surface right In regard to the acqulr-
lng of 881118
and ln'regard to the compensationfor
the Injury Incident to the opening and the working
of such mine and the acdess thereto, he may apply
to the county judge of the county In which such
mining claim la located by filing a written petl-
tlon so setting forth with a sufficientdescription
the property and surfaceright sought to be taken
and.the.purpoaefor which the 88388la to be taken.
Such judge shall then appoint three dlslnter=sated
freeholder6to examine, pass upon and determine the
. damages and compenshtlonto be paid to the owner of
such surface right or other property necessary to
be taken, and all proceedingathereunder shall be
had In accordance with the law regulating the exer-
else of the right of ,emlnentdomain. NothMg herein
shall give the prospector or looator any grazing
right, or rights to any surface or well water In
use for livestock, or to any timber rights either
. ..
Honorable Rascom Glles, page 3
on or off the claim, to the detriment of the surface
owner or lessee."
This department rendered a very well-considered
opinion on the meaning of the word "mineral" on February 16,
1937, and since we find no reasnn to disagree with the hold-
ing In said opinion, it Is felt that to quote portions of it
insofar as It defines the statutorymeaning of the word "mln-
eral" would not be amiss. In this opinion the question be-
fore the department was: "Is this department authorized to
enter Into and deliver contracts pertaining to the operation
of a granlt or rock quarq or gravel or callche pit upon state
lands on a royalty basis? Mr. Russell Rentfro, then Assls-
tant Attorney General, wrote In part as follows:
"The pertinent provision of Article 5310, Re-
vised Statutes, 1925, reads as follows:
"'The land Included In this chapter shall be
sold with the reservationof the oil, gas, coal
and all other minerals that may be therein to
the fund to which the land belongs and all appllca-
tions shall so state.'
"Article 5388 reads as follows:
"'All valuable mineral bearing deposits, placers,
veins, lodes and rock carrying metallic or non me- _
talllc substancesof value except oil, natural gas,
coal and lignite, that may be In any lands Included
in this Chapter shall be subject to development,
sale and patent, as provided In this subdivision."
"The pertinent provision of Article 5383 wh%ch
specifies the lands subject to the operation-ofAr-
ticle 5388 reads as followal
"'Any person, association of persons, corporate
or otherwise, that may desire to acquire the right to
prospect for and mine ccal, or lignite In or under
any of the following lands: - all unsold public free
school land, University land, asylum land or any such
lands sold with a reservationof mlnerala therein, -
either of said substancesthat may be lnor upon said
land that was purchased with the relinquishmentof
the minerals therein - and all lands of which the min-
eral rights therein have reverted to this State as
, -9
Honorable EiascomGlles, page 4
the sovereign government,and either of sald
substancesthat may be In or upon any other public
lands Including Islands and river beds and channels
which belong to the State, may do so by complying
with the following conditions.'
"The writer believes that In our attempt to
ascertain just what the,Leglslatureintended by the
use of the phrase call other minerals that may be
therein', that an exhaustive discussion of the avall-
able authorities Is justified.
"Turning first to Words and Phrases, Vol. 5, and
beginning on page 4513, we find among others the fol-
lowing deflnltlonar
"A 'mineral'Is defined by the Century Dictionary
to be any constltutentof the earth's crust, more spe-
clflc~lly an inorganic body occurring In,nature, horn-.
ogeneous, and having a definite ohemlcal composition,
which can be expressed by a chemical formula, and,
further, having certain dlstlngulshlngphysical char-
acteristics. Balnb. Mines (4th Ed.) p. 1:,defining
the terms, says that It may, however, In the most en-
larged sense,.be described as comprising all the sub-
stances which now form or which once formed a part of
the sollc body of'the earth, both external and ln-
ternal. and whloh are now destitute of or InoaDable
of supportinganimal or vegatable life. North&n Pac.
R. Co. v. SoderberR, 104 Fed. 425.
"This same case further adds that In a common
and ordinary slgnlflcatlonthe word lmlneral'Is not
a.synonym of 'metal' but Se a comprehensiveword or
term Including every descriptionof stone and rock
deposits whether containingmetallic substances or
entirely non-metalllo.
"Webster deflnea the term Imineral'to be any ln-
oraanlc snecles havlnR a definite chemical oom~osltlon.
However, ke find that-in the oase of Murray vs‘Allred,
43 S.W. 355, the court held as follower
"'In the most general sense of the'term, "minerals"
are those parts of the earth tihlchare capable of being
got from underneath the surface for the purpose of profit.
Honorable BaacornGiles, page 5
The term, therefore, Includes coal, metal, ores of
all kind, clay, stone, slate and aoprolltes.t
“In the case of s 5 Watts 37,
we find that the court construed the term Qlnerals~
to mean’all ores and other metal substanceswhlah
are found between the surface ef the earth and all
substanceswhich are the object of mlnlng aperations.
In this same volume we find that the oourta have
construed the term ‘minerala’to include coal, gas,
011, granite, stones, Iron-ore, paint stones, salt
lakes, water and all sabstanoeenhleh are the objeot
of mining operations.
“Words and Phrases,Vol. 3, Seoond Series, begln-
nlng on page 389, uaes as a starting point the defl-
nltloricontained In the case of Kansas,Natural Gas
Company va Board of Commlsslonersof Neosho County,
89 P. 730, which reads as follows:
“‘The word “minerals” In the popular sews980
means
thoae Inorganic oonstltuentsof the earth’s crust
which are commonly obtained by mining or other pro-
cess for bringing them to the surfaoe for profit.1
“This samg volume reiterates,Websterlsdefinl-
tlon of ,theterm ?mlnerals*as being any lnorg&nlo
apeoles having a definite ohemical compo.sltion, re- *
pudlates Its firat definltion,byolting a 4ase In
93 P. 53 which held that the term Qslnesals~1.8
not limited to substancesfound beneath the eurfsoe
and then oltes oases holding that the term Qslnerals~
means coal, iron-stone,‘freestone, fireclay, ohlna
day, poroelaln olay and every kind of stone, flint,
marble. slate. brlok earth. chalk, iiu%vsl.. se&d.
gypsum; shell-and water. ,fiowever; ghe oak of 8ul.t
vs Hoohstetter Oil Companr, 61 S.E. 307, cited thsn,
oonstrued the term tmlnera~s~to include every.sub-
stanoe that oan be got from underneathths SU%?aOe
of the earth for the purpose oi ~proflt, but epeolfl-
oally held that It inoludes only those StilOlsS that
are under the surfaoe and do not lie loossly up?” it.
"Burrills Law Dlotlonary, Part 2;‘psgs 718, oon-
talns a slmllar definition. It defines ,‘mlnsMls’as
.- ,
Honorable Bascom Giles, page 6
including all fossll bodies or matters dug out of
mines such as beds of stone, which may be dug by
mining or quarrying.
"Prom the foregoing and from the discussion
contained In 40 C. J. Page 736, we find that the word
lmlnerals'Is a word of general language and not per
a term of art or trade, and as in the case of the
Ekn 'mine', the term 'mineral'Is used In so'many
senses dependent upon the context that the ordinary
definitionsof the dictionarythrow but little light
upon its significationin a case and therefore It 1s
not capable of a deflni.tlonof universal application
but is susceptibleof limitation or expansion accord-
ing to the intention with which it Is used in the par-
ticular Instrument or statute. In determiningIts
meaning In a particular case, regard must be had not
only to the language of the instrument In which It
occurs but also to the relative position of the parties
interestedand to the substance of the transaction
which the Instrument embodies.
"Words and Phrases,Vol. 5, Third Series, Page
135, in addition to reiteratingthe number of deil-
nltlons already discussed herein cites the ca8e of
Campbell vs. Tennessee Coal, Iron and Railroad Co.,
SW 674 hi h h ld th t ddtld
mountalnsl~ewla~gel~cons%nge& I~e%on?b&ff
which reserved to the grantor all mines and mlnerais,
contained or embedded in or on the tract, did not
reserve the limestone, although minerals in a tech-
nical sense do Include limestone. Turning to our
"'The right to take and ue.eall the minerals if
It,inoludes subaurfaoeminerals would lnolude not
only the right to take and use petroleum 011 but
everything else oomlng under the definition of mln-
erals upon or under the eurfaoe, that is, any oonati-
tuent of the earth's cruet. Full ownershlp of and
title to the land could carry with it nothing more
of aubstantlalright. So, if the terms used in the
. . .
Honorable Bascom Olles, page 7
deed giving the rlght,to use all minerals are to
be taken In this broad sense, the title conveyed
was in substantial effect a base or determinable
fee as contended by appellees. The question pre-
sented then is as to the constructionto be given
the deed with special reference to the language
used giving this right.'
"In the case of Carothers 233 S.W.
155, the court held that in Its broadest and scientl-
flc meaning, a mineral is any inorganic species
having a definite chemical composition,held that If
the parties regarded the term Imineral'in the popular
and usual view of its meaning that it should control
rather than any precise legal meaning.
"In the~case of Marvel vs Merritt, ~116U.S.
11, the Supreme Court of the United States held
that the word 'mineral Is evidently derived from
the word 'mine' as being that which is usually ob-
tained from a mine and distinguishedfrom the pits
from which only stones are taken and which are cal-
led quarries.
"Thus we see that the term 'mineral'Is one sus-
ceptible of a great many ind varied significations.
We have alreacy determined that in our Instant case,
to give the term 'mineralt its precise legal scien- '
tlflc significationso as to Include all matter not
nroperly included In the animal and vegetable king-
doms, would be an absurdity. To do so would be to
destroy the very grant itself by excepting therefrom
the very subject of the grant - the land. However
our case Is still far from solution. Having .de-
termined that we cannot apply the pure scientific
definition of the terms 'mineral',we are faced with
the problem of just where to stop In restricting its
signification. Should we restrict the term so as
to,lncludemerely the statutory specifiedminerals
and minerals of like character or should we confine
it purely to metallic ores and precious stones?
Should we enlarge Its slgnlflcatlonso as to ln-
elude In addition to metallic ores and preolous
stones all mineral substancesof profit found be-
neath the surface of the earth or should we Include
. .
Honorable Bascom CX.les,page 8
those same substancesfound lying loosely upon the
surface? If we adopt the view that the term 'mineral'
Is restricted to those substancesfound beneath the
surface of the earth, we must make .Bt least one ex-
ception. As early as June 31, 1837 the State of Texas
in reserving gold, silver, copper, lead and other
minerals specificallyenumerated as one of those
minerals, salt. Surely this latter,,Act of the Legls-
lature reservingminerals in the state lands would
include all salt deposits. The foregoing discussion,
If it serves no other purpose, has convinced the
writer that the only reasonable rule Is that each
case must be decided upon the language of the statute,
the surroundingcircumstances,and the intention of
the grantor, if It can be ascertained.
"With this in mind, what Is the language used
In the relevant statutes? Article 5310 speaks of
the reservationof the oil, gas, coal and all other
minerals that may be therein. Article 5388 deals
with the development of valuable mineral bearing
deposits, place&, veins, lodes and roek--earrylig
metallic or non-metallicsmncea of .valuethat
may be in any lands. Article 5383 dealing with the
developmentof certain land for coal or lignite-in
and under any unsold free school ind university i&d
or amnda sold with a reservation of minerals
therein and dealing with the developmbntof those same
ma upon lands purchased with a relinquishment
of the minerals and of lande'ln which the mineral
rights have reverted.tothe state, and of other pub-
lic lands belonging to the state and uses the teFml-
nology -
In and u'pon.
"In view of the langua e used by the ld&lsia-
ture in Articles 5310 and 53%8 pertaining reapsa;
tlvely to the sale of lands with a reservation of
minerals and to the developmentof the mineral re-
sources in these and other.landsbelonging to the
state, and In view of the authorities dl8ourrsedIR
this opinion, we believe that we can fairly and
safely attribute to the legislature the latention
to place upon the term Qnlneralefthe common and
ordinary slgnlflaatlonof those mineral substanoes
coming within the scientific significationof the
term 'mineral'and found beneath the surface of the
. .-
Honorable Bascom Ctiles,page 9
earth and susceptibleto being removed from mines
for the purpose of profit. The writer appreciates
that a number of these substanceswill doubtless
be found to lie upon the surface and that no sclen-
tlflc reason exists for calling the self same sub-
stance lying beneath the surface a mineral and re-
fusing to do so because it Is found upon the sur-
face. However, we must remember that we are not
concerned primarily with the claaslflcatlonof
these substances from a sclentlflcviewpoint, but
our attempt to ascertain just what the legislature
intended to include by that term. We do not believe
that we can fairly attribute to the legislaturean
intention to reserve all those substancescoming
within the scientificmeaning of the terPl'minerals1
and found lying upon the surface of the earth and
thus subject the State's grantee to an almost ln-
evitable destruction of his property by quarrying
operations thereon.
"Our distinction,we believe, is the just one
and Is one admittedly supported by various decisions
from other jurlsdlctlons.
"Retu-ning to the specific Inquiry contakned
in your letter we are of the opinion, In view of the
foregoing authorities,and you are accordinglyad-
vised, that the term 'minerals'as used In Article
5310 and Article 5388, when viewed In conjunction
with the language used In said statutory enactment,
does not Include gravel, sand, building stone, gran-
ite axcaliche found lying upon the surfaae,of the
land and subject to quarrying operatlons."~
Looking again at Article 5400, R.C.S., we.~.flnd
that
the language of this statute provides for the methods of ascer-
tain!-* t.h,*
?.mo~v~t.
nf compensationto which the surface owner
would be entitled "for the Injury Incident to the opening and
the working of such mine and the access thereto"; but no provl-
sion is written Into the statute as we view it which would
permit the surface owner to 'receivecompensationfor remOVa
of soil from his lands, although he would be entitled to dam-
ages because of right of ways or damages done to the terrain
of his land. Thus we believe the Legislature thought of
mining or refining operations rather than the wholesale re-
moval of strata of soil.
. .
Honorable Eascom Glles, page 10
Turning now to the so-called "mineralizedsoil" which
is the subject of discussion In this opinion, we quote below
analyses of the samples of the materials as furnished by you,
one a Chemical Analysis made by Mr. W. P. Martin of the Univer-
sity of Arizona and one a SpectrographicQualitative Analysis
submittedby the Raymond 0. Osborne Laboratories,Los Angeles,
California.
"UNIVERSITYOF ARIZONA
Total Total Soluble, Available
Sample pH Acidity T S S +* Carbon Nitrogen Ph?s,?hate
Potassium
Number Value (me*/100 gm. ppm (ppm) .-'L
1 4.8 7.4 8,084 0.82 1.063 Trace 0.051
2 6.2 3.1 17,635 0.64 0.050 0 0.074
3 4.9 13.6 8,084 3.69 0.167 0 0.054
4 4.1 25.5 12,625 5.14 0.312 0 0.067
4a 4.6 15.5 6,342 3.32 0.136 0 0.060
5 4.6 18.6 6,000 1.85 0.150 0 0.078
(*me = MillequIvalents ; ** T S S = total soluble salt&)
Sample Ammonia Nitrate
Number 0 0
3 119 177
2 252 4,111
3 183 815
4 534 3,969
4a 132 372
5 135 408
Signed w. P. Martin
Honorable Bascom Glles, page 11
“RAYMOND G. OSBORNE
Bureau of Teats
and
INSPECTION
Los Angeles, 27, 1944
REPORT g SPECTROGRAPHICQUALITATIVE ANALYSIS
Tests Made for: II.B. Bagley
Room 430, Rives Strong Bldg.
Los Angeles, Calif.
Material Identification: "Brewster County, Texas"
Samples submitted 6-22-44
RESULTS OF ANALYSIS -
Laboratory Number:
Sample Number: 1
(Appearance- (Now being used -
Oil Shale) Rio Grande)
Silicon 10.0% 10.0%
Iron 10.0 10.0
Magnesium 1.0 to 10.0 1.0 to 10.0
Calcium 1.0 to 10.0 1.0 to 10.0
Aluminum 1.0 to 10.0 1.0 to 10.0
Magnanese 1.0 to 10.0 1.0 to 10.0
Titanium 1.0 to 10.0 1.0 to 10.0
Potassium
Sodium ::: 2:
Strontium 1.0
Chromium 0.1 to 1.0 E
Copper 0.01 to 0.1' 0.01
Vaiidalum 0.01 to 0.1 0.01 to 0.1
Lead 0.01 to 0.1 0.01
Boron 0.01 to 0.1 0.01 to 0.1
Nickel 0.01 0.01
Cobalt 0.001 to 0.01 0.01
Zlno 0 .OOl to' 0 .Ol 0 .OOl
Molybdenum 0.001 0.01
Barium 0.001 0.1 to 1.0
Silver 0 .OOOl 0 .OOOl
GalIlum 0.001 to 0.01 0.001
Zirconium 0.01
Esttmated Quantities to the Nearest Factor of Ten.
Respectfully submltt d
By A. Osggani (Signed) RAYMOND G. OSBORNE L&ORATORIES
: .
Honorable Bascom @ilea, page 12
Both of these lead the writer to conclude that the eub-
stance.of the material Is of such a definite chemloal compoel-
tlon It would fit it into the definition of a "mineral'as de-
fined by Webster, who wrote, "Anythingwhich is neither animal
nor vegetable, or in the old general classlflcatlonof things
into three kingdoms, (Animal,vegetable, and mineral)," or into
the two definitions cited In Corpus Jurls--(l) "Broad or Scien-
tific Meanlnq: In Its broad and sclentlflcmeaning a mineral
is a natural body destitute of orginlzatlonor life; any ln-
organic species havlng a definite chemical composition;any
substancewhich is part of the natural formation of the earth."
(40 C. J., page 736, paragraph 2.) (2) "Popular meaning: The
word 'mineral'Is evidently derived from 'mine' or being that
which Is usually obtained from a mine, and in its most general
and popular sense the term 'mineral'means any Inorganic sub?
stance, except common soil or rock, which Is Sound in the earth
and may be obtained by'mlnlng or other process for bringing it
to the surface, for manufacturingor mercantile purposes for
profit. Ordinarily the term, as so defined, applies to sub-
stance under the surface of the earth and not to ,thoselying
loosely upon It. But this limitation is not an accurate one
for many mineral substancesare found upon or near the surface,
and in any event the term will Include surface minerals where
such appears to be the Intention of the parties." (40 C. J.,
page 736, paragraph 3.) Cases in point support these deflni-
tions and we find It impossiblebut to conclude that the so-
called "mineralizedsoil" In question is other than a mineral.
Having concluded that'the substance Is a mineral does
not, however, answer the question in point, i.e., Is the sub-
stance a "mineral"within the meaning of Articles 5388 et seq.,
R.C.S.? Or, perhaps more clearly stating the question: Did
the Legislaturehave in mind such "minerals" at the time the
Act was passed In lgly? We think not. On the contrary, we be-
lieve the Intention of the Legislaturewas to reserve for the
benefit of the State such met&la, minerals, or precious stones
as sulphur, salt, gold, silver, oils and the like which could
be clearly mined or in any way removed for their Individual
value as a unit, a concentratedmineral but not such a con-
glomeration of acids, alloys and mixture of chemicals as Is
reflected in the analysis of the substance in question. To
hold otherwise would be to put every grantee of land holding
under a deed from the State on notice that his title or~rights
in the surface of the soil would be constantly subject to the
scrutiny of the chemists and liable to the needs or shortcom-
ings of various soil compositionsthroughout the nation. Par
different.wouldbe our view If the analysis, for Instance,of
. i-- -
Honorable Bascom Qlles, page 13
Mr. Osborne had shown a high percentage of the volume of the
substance to be pure silver. Certainly then It would be the
duty of the State to see that its interest was developed and
the silver contents recovered leaving to the owner of the sur-
face the residue therefrom. Rut by no stretch of the lmaglna-
tlon can we conclude the Legislature had in mind reserving to
the State various and sundry combinations of chemical compounds
as may be found to be deposited In thousands of.acres of land
which the State has patented, deeded or otherwise released the
surface thereof to grantees with a reservation of a portion or
all of the mineral rights,
Iron ‘and Rail
Manufacturing
171; Carother
116 u. S. 11.
opinion quoted, and, although we recognize the fact that they
are not directly In point, we think they support our conclusion.
Yours very truly
ATTORNEYGENERALOFTEXAS
/a/ E. M. De Geurln
By
E. M. DeGeurln
Assistant
E?lDeG/JCP
APPROVED DEC. 20, 1945
/a/ Car1os.C. Ashley (This opinion considered and
FIRST ASSISTAMI' approved in limited conference)
ATTORNEY aENERAL