Untitled Texas Attorney General Opinion ( 1942 )

Honorable L, W. Pollard
County Attorney
Kerr County
Ksrrville, Texas
Dear Sir: Opinion Elumber'O-4939
Re: Whether stihooldistrict may remove
building frbm land deeded to dls-
trlct for school purposes aft&r
abandonment thereof~and reversion
to original grantor.
We have received your letters of October 19 and 26~,
1942, relative to the above captioned subject. You enclosed
therevlth a copy of a letter written by you to the Prssldent'
of the Board of Trustees of the Harper Independent School Dls-
trlct. We quote the following from that letter:
"As requested by you, I have checked into the
follovFng proposition. Some fev year8 ago a
tract of land was deeded to the Comirion
School
District in the Harper area, which ha~5been taken
inland is now a part of the Harper Independent
School DlstrLct, This deed has a reversionary
clause in it as to the effect that in the event
the property so conveyed was not used for school
purposes the title thereto would revert to the
original grantors. After that, the property was
voted Into the Harper Independent School District
by the member8 in the Common School District and
is now a part of the Harper Independent School
District which takes In a part of Gillespie and
Kerr Counties. The property in question being
situated in Kerr County, Texas.
"As I understand.,the property as originally
deeded, was vithout any improvements but that
improvements for use were placed thereon by the
Common School District before the question of
abandonment occurrwd,and the property ts hot now
being airectly used for school purposes, although
you are storing some equipment in the building,
but no active use has been made of the building
for the past several years by the Independent
School District.
1
. .
Honorable L. W. Pollard, page #2 o-4939
"The proposition you have submitted to me was
whether or not the Independent School District
had a right to remove a building erected thereon
by the Common School District. It is my opinion,
although I have found no authorities on this ques-
tion, that the District would have a right to re-
move such improvements which were placed thereon
by the Common School District prior to the abandon-
ment thereof for school purposes. Therefore, ~the
sole question to be determined in this case, aside
from the one mentioned above, is whether the prop-
erty has been abandoned for school purposes. The
information you gave me Is that you have ceased to
use the building for school purposes, but equipment
of this nature, which has had no active use, has
been stored In this buildlng for a number of gears,
"In view of the fact, it Is therefore my opinion
that the property has been abandoned for school
purposes and the title thereto reverts to the
original grantor, together with all the lmprove-
ments situated thereon, save and except such per-
sonal property you may have located ln this bulld-
lng which belongs to the Harper Independent School
District. As an ordinary proposition at law, it
seems to be elementary that improvements built on
another man's property goes with the property, But
In this case, if the Improvements had not been re-
moved before the abandonment occurred, then I don't
think there is any question that the District would
have any rights to remove the property. This Is
merely cormnon reasoning D"
The question In which you are Interested Is stated In
your letter of October 2&h, as follows:
"Whet%r or not the Independent School Dis-
trict of arper, Texas as a successor of the
Common School District, has a right to remove
a bulldlng from the property which was deeded
to the Common School by Individuals, with a
condition, that If the property ceased to be
used as school property, the title thereto would
revert to the grantors, their heirs and assigns."
We do not have a copy of the deed for examination, nor
do we feel that we have sufficient lnformatlon to pass upon
the question of abandonment. We surmise from your letters that
there seems to be little doubt among the parties concerned that
the property has been abandoned. We think It sufflclent to say
that it has been held that the use of a building for the stor-
Honorable L. W. Pollard, page #3 o-4939
age of school furniture, books, etc., is not for "school pur-
poses' and does not prevent an abandonment of the property
under a deed specifying that the property was to be used for
such purposes and containing a reversionary clause. See Put-
ney v:SchoolDlst. No. 4 of Town of Brookfield (Wise.), 255
N.W. 76; Richey v. Corralltos Union SchoolDist. of Santa
Crux County (Callf.), 228 P. 348. However,~we think that so
long as the property Is being used for school purposes, the
school district could make such improvements OP remove the
same as would best serve such school purposes.
We shall now pass to the question of whether a school
district may remove the school building after the-property has
been abandoned for school purposes and, therefore, has reverted
to the grantor. ~The property as orlginallg conveyed was with-
out Improvements, but the school district subsequently built
a schoolhouse thereon,
We quote the following excerpts from Texas Jurisprudence,
pages 950, 951, and 958:
"School trustees ordinarily have the exclus-
ive control and management of school property
and exclusive possession thereof. In exercising
this discretion they may locate and construct
district buildings upon such sites, and In ac-
cordance with such plans and s~eclficatlons as
in their judgment seem proper.
'* * *~The laws of Texas, by Implication at
least, require that the exclusive ownership and
control of school buildings of a district shall
be In the trustees thereof,"
After an exhaustive research, we have found only one
Texas case precisely on the question of the removal of a school
house after the abandonment of property conveyed under a deed
for school purposes and containing a reversionar clause there-
Such case Is Allen et ux v, Franks et al. TW. E. Ref.),
,'& S.W. 384.
Plaintiffs had conveyed certain property to the trus-
tees of a school district and their successors, and the deed
of conveyance contained the following stipulation: "Conditioned
that when the above-described land ceases to be used as school
purposes, the same shall revert to us.' Thereaf,ter,with money
obtained through contributions by citizens of the school com-
munity a schoolhouse was erected on the property. Defendants
as successors to the former trustees to whom the deed was exe-
cuted decided to consolidate the district with another district,
. -
Honorable L. W. Pollard, page #4 o-4939
to move the house upon another location, and to abandon the
land upon which the house was originally built. Plaintiffs
instituted suit to enjointhe .removal of the building and al-
leged that the building was part of the realty, that the land
had been abandoned, and that by reason thereof the building as
well as the land had reverted to them. It was contended that
the contributions for the building were mad,ewith the distinct
understanding with the trustees that the building was to re-
main upon the land permanently,-~The court, after citing Ar-
tlcles 2822, 2844,-~2845,2847, and 2849,,R.S. 1911 (Articles
2748, 2752, 2754, and 2756, R.C.S., 19251, denied plalntlffs
any relief and h-oldthat the trustees could remove the school
building when the land ceased to be used for school purposes.
We quote the following from the opinion of the court:
"When the funds were donated for the con-
struction of the building, the title thereto
passed to the trustees, and the building erect-
ed with such funds became subject to the pro-
visions of the statutes above quoted. When
the contributions were made for the erection
of the building, persons making such contrlbu-
tions must be held to a knowledge of the statu-
tory provisions giving absolute control of the
bullding to the trustees and prohibiting the
fixin: ;f,a+li:n of any character upon the build-
-a. *
"If, at the time of the erection of the house,
the trustees could make it a part of the realty
by their intention to make it a permanent lm-
provement upon the land, or by erecting the same
without forming any Intention at the time that
they or their successors In office might remove
it from the land In the event of a decision to
abandon the land for school purposes, then they
could control the title to the house Indefinitely.
Under express provision of the statutes title to
the house became vested in the trustees and their
successors in office as trustees for those to be
benefited thereby 'under such FUleB as may be es-
tablished by the state superintendent.' To give
appellants' deed the construction lnslsted upon
would, in effect, be to say that the trustees who
received the deed would have the authority them-
selves to vest in appellants title to the school-
house wlthout receiving any consideration therefor
and would have authority to bind their successors
in office to do the same. Clearly, this would
not be in the Interest of the patrons of the school
Honorable L, W. Pollard, page #5 o-4939
and thus deprive them of title to school property
would be a breach of trust and contrary to public
policy l * *ll.
'Certainly it was not within the spirit or
intention of the statute that those who were
beneficially interested In the building could
be deprived of title thereto without receiving
any consideration therefor by any arbitrary act
of the trustees who erected it, when the purpose
of such act was not to subserve any interest of
the beneficiaries."
There would be even more reason for the court to hold
as it did If the building had been erected with tax moneys.
Other states have reached apparently conf~llctingresults.
See Steel v. Rural Special School District No. 15 (Ark. Sup:
Ct.), 20 S.W. (2d) 316; Webster County Board of Educatlon'v;
Gentry (Kg. Ct. App.), 24 S.W. (2d) 910. AN earlier Texas case
might be construed as being somewhat inconslstent with the
Allen case. In the case of Stewart,v, Blaln (Clv. App.), 159
S.W. 928, the court had before It for consideration a deed
whereby certain property was conveyed to the county judge and
his successors In office for the purpose of erecting a school-
house for the benefit of the school community. The deed con-
tained a clause "that in the event of the removal of the school-
house therefrom" the land should revert to the grantor or his
heirs or assigns. A schoolhouse was builtand the property was
used for school purposes for several years; however, thereafter
it was not so used, and the county judge, county commissioners,
and school trustees attempted to convey the property to defend-
ant. Plaintiffs were heirs and assigns of the original grantor.
The court held, In part as follows:
"It seems to us that these provisions mean,
and were intended to mean, that the grantees
should own and use and enjoy the property so
long as It was so used for the purpose for which
It was conveyed, and that when this condition
ceased the title and right of possession should
at once revert to the grantor, 'or his heirs or
assigns' +****
'I** * This sale and the abandonment of the
land for school purposes was to all intent8 and
purposes 'a removal of the schoolhouse there-
from'. The building may be there yet, but It
IS not a schoolhouse."
Honorable L. W. Pollard, page #6 o-4939
However, even though the Stewart case has been cited
many times as authority by more recent cases, we feel that we
are compelled to follow the Allen case. The Allen case was
later in time than thenStewart case, and writ of error was
refused. Also, the precise question was Involved in the'~Allen
case, and not In the Stewart case, and if the Stewartcase 13
inconsistent, it Is only Inferentially so. Therefore, until
the opinion of the court In the Allen case is overruled or
altered, we feel that we are compelled to follow the holding
thereof.
You are, therefore, ad,visedthat where, under a deed
containing a reversionary clause, land has been conveyed to
a school district for school purposes only and thereafter a
schoolhouse is erected thereon, the school district may re-
move such building when the property has been abandoned for
school purpose and has reverted under the deed to the grantor.
Very truly yours
ATTORNEY GENERAL OF TEXAS
By s/George W. Sparks
George.'W.Sparks
Assistant
GWS/s/wc
APPROVED NOV 10, 1942
s/Grover Sellers
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion Committee By s/BWB Chairman