Untitled Texas Attorney General Opinion

````ATTORNEY GENERAL
OP TEXAS
Aun- H. TEXAS
PRICE DANIEL
ATTORNEYGENERAL
February 12, 1948
Hon. D. C . Grew Opinion No. V-499.
State Highway Engineer
Austin, Texas Re: The appllcabllity of out-
standing mineral reserva-
tions and conveyances to
iron ore gravel to be used
for highway construction
and maintenance under the
submitted facts.
Dear Sir:
The facts involved In your request stated brlef-
ly are as follows: The Highway .Department needs a quan-
tity of iron ore gravel for the construction and mainten-
ance of highways In San Augustine County. This material
can be found upon a certain tract of land presently owned
by the United States Forest Service, which acquired the
land subject to speclflc mineral reservations hereinafter
quoted. The Forest Service has granted permlaslon to the
Highway Department to open gravel pits upon the lanihtnd
remove aa much gravel as required free tif charge.
present mlneral owner, Long-Bell Petroleum Cgmpsng, Inc.,
claims under the above-mentioned mineral reservations
that the gravel la a mineral and as such belongs to It;
and the Long-Bell Petroleum Company, Inc. demands pay-
ment for the gravel at 73 cents per cubic yard. The deed
acquired by the Forest Service from’long-Bell Petroleum
Company, Inc., contained the following exceptions and
reservations:
“1. All property and m?neral rights
conveyed to the grantee in the deeds from
The Long-Bell Lumber Company and Long-Bell
Lumber Sales Corporation, dated December 51,
1931, of record In Volume 72, pages 195 and
186, respectively, San Augustine County Deed
Records; and
“2 . All property and mineral rights
reserved in deed from A. F. Kountze to
David L. Gallup, dated July 18, 1902, of
record in Volume W, page 423, San Augustine
County Deed Records; and
Hon. D. C. Greer, Pclge '2, V-499.
11%
All property and mineral rights
reservid by Texas LPnd & Cattle Company in
deed to John H. Kirby, dated July 5, 1902,
of record in Volume W, page 247, San August-
ine County Deed Records; and
"4. All property and mineral r?ghts
reserved in deed from Patrick A. hC8y to
E. B. Hayward, dated Januar 15, 1902, of
record in Volume V, page 48.I, San AuguStin
County Deed Records; and
IfI-
1. All property and mineral rights
reserved In deed from P. H. WhiSten tn
;,u:$; L;;iX& Lumber Company, dated Novem-
of record in Volume 2, page
126, &I A&&tine County Deed Records:
and
“6. All property and mineral rights
reserved In deed frw The T8XaS Company to
W. R. C?uslns, datkd November 24, 1919, of
. record in Volume 55, page 194, San Augustine
County Deed Records; and
“7. All property and mineral rights
conveyed to the grantee In the deed from
the Long-Bell Lumbisr Company to Long-Bell
Petroleum Company, Inc., dated October 10,
1935, of record in Volume 75, tage 547, San
Augustine County Deed Records,
Long-Bell Petroleum Company, Inc., acquired the mineral
rights from Long-Bell Lumber Sales Corporation. In that
deed the pertinent language was:
"DEEDFROMLONGBELL LUMBER SALES CORPORATION
TO LONGBELL MINERALSCOKPANY
"has granted, sold and conveyed and by
these presents does grant, sell and convey
unto the said Long Bell Minerals Corporation
all of the oil, gas and other minerals of
each kind or character, on, in and under,flnd
that may be produced from the fgllowing des-
crlbed tracts, or parcels of land situate in
the County of San Augustine.
Hon. D. C. Greer, Pege 3, V-499.
"together with full rights to explnre,
drill, and mine said lands for said oil, gas,
and minerals, and to produce and remove the
same therefrom, and with the rlght of ingress
and egress, right of way easements and servl-
tudes, for pipe lines, telephone and telegraph
lines, tanks, power houses, stations, gaseline
tanks, and fixtures for producing, treating
and caring for such products, and all rights*
and privileges incidental to the rights here-
inabove specifically granted and reasonably
necessary for the economical operation of
said land for the production of said minerals."
Based upon these facts , you have asked two ques-
tlons which we quote:
II . . . will you please 8dvi88 us if the
iron ore gravel desired by this Department
for highway construction and maintenance pur-
poses is such a mineral as ~1s COnfemplat8d
by the reservations and conveyances quoted
and Whether it Is owned by the United States
Forest Service or by the Long-S811 Petroleum
Company, Inc., . . .'
From information furnished to us by your Depart-
ment, we understand the term "iron ore graOe1" to mean
ordinary commercial gravel which does not contain iron ore
of such content as to be valuable commercially for such
ore. Our opinion assumes the correctness of this lnform-
atlon.
This same question involving almost identical
facts was recently before the Court of Civil Appeal8 at
Austin in the case of Psenclk v. Wessels, 205 9. W. (2d)
658. Writ of error was rGfUS8d by the Supreme Court 3n
January 7, 1948. In that case, two sisters inherited in
equal shares three tracts of farm land. One of the sls-
ters, Mllly, conveyed by warranty deed her one-half lnter-
eat to the three tracts to the other sister, Julie. The
deed contained the following reservations:
"Out of the grant hereby made there is,
however, excepted and reserved to Mllly Psenclk,
grantor herein, her heirs and assigns, for a
period of thirty (30) years from and after thls
date, a one-half interest in and to all mines
and wells of, and 811 minerals of whatever des-
cription, be the same gaseous, liquid, or solid,
Hon. D. C. Greer, Page 4, v-499.
in and under the lands hereinabove des-
crl.bed ; so that henceforth, grantor herein
shall have and continue t? own for a per-
i& of thirty (TO) years from and after
this dat.e an undivided one-half Interest..
in s.nd t.3 all of the minerals under the
above described three tracts gf land; and
it :a understood and agreed that the p,rant-
Tr kll5mAn, h-e-r ke’LT-!3mrt Irss’LWrs, -+m’L-1
have and she hereby has the right and power
to take all t,he usual, necessary and c’3n-
venient means for working, getting, drill-
ing for, laying up, dress:.ng, making mer-
chantable and taking away said minerals,
and also for the said purposes, or for any
other purpose whatsoever, to make and re-
pair wells, mines, shafts, tunnels, plpe-
lines and drains, in, upon, Into and be-
neath such lands, and to lay and repair
pipes under, upon or above them for convey-
ing water to and from manufactory or other
buildings. It is further agreed, Stipulated,
and under8 tood that, at the expiration of
thirty (30) years from and after this date
the title to an undlvlded one-half Interest
in mlnern1.s as!‘reserved herein to grantqr
shall cease and thereafter the entire fee
simple title to all of said land, particu-
larly 1nclud;ng the mineral rights heref~n
reserved t shall be in grantee, her heirs or
assigns. ’
Afterward Julie leased the property for sand .?nd grsvel
for a royalty qf 5 cents pey cubic yard. Mll~ly sued
Julie In trespass t.o try title, cln?m:ng 9 one-half un-
div!ded Interest In the sand and gravel on the Krcunds
that such :.and and grnvel wore mtnero1.s R’S contemplated
in the mInera reservation obgve quoted. The Trial Court
denied recovery and on appeal the Austin Court. of Civil
Appeals concluded after a thqrouEh dIscussi% of author-
ities:
“Xt is a mntter gf c3rnrn-x knowledge
that. where those subjects are dealt with
they are referred to speciflcally (8. g.
see GRntt v. McClellan, Tex. Clv. App.,
252 S.W. 229, 235, error refused) and
that in the cgmmo8 vernacular of those
dealing in farm lands and mineral rights
.
.
Hon. D. C. Greer, Page 5, V-499.
the term 'minerals' does not include ordl-
nary commercial gravel. It might as well
be held to include fertile top soil, which,
under conditions arls!ng subsequently to
the grant, should become commerclallg valu-
able for replenishing lawns in an adjacent
city, or other sol1 for filling lets or
building roads. It would serve no useful
purpose to analyze the specific provisions'
of the reservation in question. Its terms
do not indicate or suggest that sand or
gravel Is included."
From the language contained in the deeds to the
United States Forest Service and from Long-Bell Lumber
Se~les Corporation to Long-Bell Fetroleum Company, Inc.,
we find nothing to 1ndLcate any purpose or intention to
reserve gravel as a part of the minerals. We believe that
the decision in the above-quoted case of Psenclk v. Wes-
sels, answers fully the questions involved in your request.
It ls,.therefore, our opinion that this gravel is not ln-
eluded in any of the reservations mentioned. It 1s further
our concluslm that the gravel 1s owned by the United States
Forest Service.
SUMMARY
A warranty deed reserving "all of the
011, gas and other minerals of each kind or
character, on, in and under, and that may
be produced from (the land conveyed) . . .'
does not include gravel within its meaning.
The grantee In such deed is the owner of
the gravel unless there Is qualifying lang-
uage specifically showing an intent to re-
serve the gravel. Psenclk et al. v. Wessels
et al., 205 S. W. (2d) 658, (Civ. App.,1947,
writ ref'd.).
Very truly yours
APPROVED: ATTORNEY
GBI?ERALOF TEXAS
ATTORNEY
GENERAL. Charles E. Crenshaw
Assistant
CEC: jmc