Untitled Texas Attorney General Opinion ( 1947 )

Hon. W. L. Edwards Opinion No. V-379
County Attorney
Victoria County Re: Ownership of minerals
Victoria, Texas in ded.icated parks;
and the best bid for
mineral lease on
county owned land.
Dear’ Sir:
ie refer .to your letter of Aue;ust 6, 1947 )
supplemented by ~a very helpful brief received on Aug-
ust 16, 1947. Your,fa+ual statement is,: I,
‘gy plet and dedication in the year 1907 a
Realty Company,, known. as Burton, Wharton
and Wilson, laid’ out what is known as the
Bloomington Townsite in this county. Cer-
tain, blocks were designated as ‘Parks’, and
the dedication accompanying the plat, stated
among other things:
‘We do hereby dedicate to the pub-
lic all our right, title snd inter-
est aoquired or to beg aoquired ‘in
and to .the parks, sohool gn,unds,
avenues, streets and alleys of said
Town as shown by said map.’
“About seven (7) months after the original
dedication, C. A. Burton, who had acquired
Wharton and Wilson’s interest in the said
townsite, fi,led an amended map, which desig-
nated the same blooks as ‘Parks,’ and in the
dedication accompanying the amended map ap-
pears the following:
‘I hereby dedioate to the public all
my rights, titles and interest ac-
,quired or to be acquired not hereto-
fore dedicated in and to the parks,
school grounds, avenues, streets and
alleys of said Town as shown buy the
map hereto attached, .’
. .
Hon. 3. L. Edwards, Page 2, V-379
“About 1912, the town of Bloomington incor-
porated and operated under said corporate
charter until about the year 1929, when it
was abolished as .provided by law, and it is
still unincorporated. The corporate limits
included said parks.”
Your questions are:
*Oil has been discovered on and near the said
townsite. The question now arises as in who
holds title to said parks. Incidentally, the
parks were never used as such, and there have
been no conveyances affecting the title to
the same other than the dedications above men-
tioned.
*Ihave been unable to find any law specifi-
cally regulating the title to such parks by
virtue of said dedications. It would, there-
‘fore, appear that the common law Taverns. The
most succinct statement of the common law resgu-
lating such dedications that I have been able
to find is contained in 16 American Jurispru-
dence 402, Paragraph 56.
“Without reference as to how the above ques-
tion is answered, I would also like your opin-
ion as to the construction of Article 5400-A.
The county owns the fee title by regular deed
to a tract of land. Ins ascertaininq what con-
stitutes the highest bid, can the Commission-
ers’ Court take into consideration the poten-
tial value of a drilling contract in addition
to the regular cash bonus?”
We note your suggestion that no, title may pass
by a dedication in the absence of a grantee,. The rule in
that regard is stated in American Jurisprudence, Vol. 16,
page 356, Section 14, as follows:
*‘A ded,ication does not require the exls-
tence of a corporation to which it is made or
in which the title should vest. A dedication
may be valid without any specific grantee in
being at the time it is made. . . . The inter-
ests of those beneficially entitled to eese-
ments or dedications of a public, charitable,
or religious character are not allowed to
Hon. W- L. Edwards, Page 3, V-379
lapse or fail for want of what is teohni-
oally called ‘a person’ to take the legal
title, the public being an ever-existing
grantee capable of taking the dedication, ‘”
The rules which pertain to map or plat dedica-
tions are stated in American Jurisprudence, Vol. 16, pa-
ges 365 and 367, Sections 22 and 23, as follows:
“Analogous to dedication by deed, and
sometimes merely a variant phase thereof,
and likewise closely allied to the doctrine
of incidents and appurtenances to grants by
deed, and to certain doctrines referable to
the subjects of easements, private ways,
and vendor and purchaser, is the doctrine of
dedication by plat or map. Dedication by .
plat or map is a common method of dedicating
streets, public sidewalks, and public parks
‘*The doctrine of dedication by plat
is frequently~ connected with the sale of lots
shown on the plat. The owner of a tract of
land is held to dedicate such portions thereof
as are designated for publid use on the plat
with reference to which he sells. lots out of
the traot. The sale of even one lot under
these circumstances amounts to a dedication.
. . .”
The rule whioh applies to proprietary rights
and titles in parks isstated in American Jurisprudence,
Vol. 39, page 809, Section 12, as follows:
nWhere land is dedicated by the owner
by a common-law dedidation, a different rule
applies. The effect of a dedication of land
as a park or square is generally considered
to create an easement in favor of the public,
oo-extensive with the purposes to which pub-
110 parks’or squares in such localities are
usually applied. Where tha re is a corpora-
tion to represent the public, and take charge
of Its interests, the easement vests in such
corporation, which thus becomes the trustee
of a US8; the naked fee remains in the origi-
nal proprietor and hia’ successors in inter-
est. . . .‘*
i .
Bon, 3. L. Edwards, Page 4, V-379
The town of BLoomington haolna been inoorpor-
rrted in 1912, we aaaume that the dedlaatore sold lots to
purchasera, wl th referenaes to the recorded msp whloh oon-
felaed a dedication of the perks, streets, eto. in Bloom-
ington. whloh are shown on such map, and, if that aeeump-
tlon be true, we are of the opinion that euah pumhaeea
oonetituted an aaaeptance of suoh dedlcatlon, whloh then
beoame irrevocable.
The caee of Sanborn vs. City of Amarillo, 92
9. W. 473 (writ of error’refused), states the rule appLl-
eable in ceaes where a dedioetion of e perk is made by
dellneetine: it on a map by refcrenoe t’o which lots are
eold, as follows:
*In this aountry the word *Perk’ wrlt-
ten upoa a blook of land represented upon a
map or plan or e olty or town’is (18 al@f-
la8nt of a deQioatlon to the pub110 ae the
word ‘Street’ written on suah plan. The pop-
ular end natural meanly OS the term when 80
wed 1s a plaae aet apart ror the enjoyment,
oomfort, and reoreation of the inhabitants
of t,he city or town in whlah it is looated,
end this rignlfloanoe la unequlvooal, and
the grantor in such lnetanoe can not be heard
to say that he entertained a different, ee-
oret intention. And, as will be seen fmm an
examination of the authorltlea above, the le-
gal effsot of swh platting, filing, and eell-
lng with referenoe thereto, ie not varied bP
the Sact that the word *Park’ ie preoeded by
some quellfylna word, as Worrle Pa**,
‘Annette Pa**, Wsnen Pa,&‘, or ‘Bllwood Park’.
The Uedloetlon, then, belng oomplete and fr-
revooeble on the pert of Appellant, it beoomer
llrmeterlal whether the City of Amarillo ever
tonnallg aoaepted the dsdiaetlon, so Ser as
its right to mlnteln the dsienss OF dedioa-
tion to the ubllo is oonoerned. Appellant’s
Offer to ded Boete waa aufflaiently aooepted
by the pub110 when some of its lndlrldual mem-
bers eoted upon the ofier, end purohassd with
referenoe to the exhibited maps, Nor could
the faota, if proved, that Appellant had ren-
dered the property for taxes apd paid taxes
thereon es belonging to himself, have ohsnged
the result. Belther the city offlalela nor
any other public orfiolel would have any pow-
er to defeat the right of the publio in prop-
erty thus dadloeted to pub110 use.”
Hon. W. L. Edwards, Page 5, V-379
The’ Court, cites the cases,‘of Oswald. vs.Grenet
22 Tex. 94; City of Corsicana vs. Zorn, 70 S.-W. 924;Lai
mar County va. Clementa, 49 Tex. 347, and many other au-
thorities supporting Its decision. We also refer to Seo-
tions 24, 27, 29, 37, 38, 39 under ~~dedioation” in Vol.
14, Texas Jurisprudence, paSes 714, 719, 722, 733, 734.
It Is elementary law In Texas that the fee tl-
tle In a dedicated street Is vested In the abutting own-
ers , subject to use by the public for purposes of free
travel and municipal uses, under municipal control; and
that the fee title to a park, dedicated to the. public,
remains In the dedicator, subject to an ~easement In the
public for customary perk uses, regardless of the ‘ques-
tion as to whether the town was Incorporated.
Answering your first question basedcon the fao-
tual situation presented In your letter: ..
The dedication of parks In the town ,of Blooming-
ton by the owners “to the publiov~ are valid dedioations,
.although no grantee Is’ named. When a ,lot was sold by .the
dedicator to a purchaser with reference to the map of
Bloomington, such sale and purchase constituted accept- I
anoe of such dedicationfor the purchaser and the publio;
such dedication then became Irrevoceble by the dedicator.
Eidelbaoh vs. Davis; 99 S. W. (26) 106~7. such dedioa-
tions may be vacated as provided In Art. 7227 V.CiS.,
and are subject to abandonment for non-use or If use
for park purposes becomes impossible.
Your second question asks for a oonstruotion
of Article 5400a, and if a Commissioners’ Court can take
Into consideration the potential value of a drilling oon-
tract In addition to a cash bonus.
ArtIole 5400a of Vernon’s Civil Statutes appears
In the Acts 1937, 45th Legislature , Chapter 279, as follows:
**An Act authorizing political subdivi-
sions of the State of Texas to lease lands
owned by such subdivisions for mineral devel-
opment purposes and prescribing the ~method
ana manner of ‘making suoh leases, and declar-
ing an emergen0.y.
*Be It enacted by the Legislature of the State
of Texas:
,,.
.
Hon. W. L. Ldwaraa, Page 6, V-379
wSeotfon 1. Political subdivisions
which are bodies oorporate with reaognized
and deflnad areas, are hereby suthorfzea to
lease r0r mineral development purposes eny
end all lands whloh may be owned by any such
political subdivision.
Yea. 2. The right to lease suah lands
shall be exercised by the governing board, the
aouunisslon or commlsaloners of such political
subdivision whioh are by law aonstitutea wlth
the management, control, and supervision of
such subdivision, sand when in the discretion
of auah governing body they shall aetezmira
tha.t Lt la advisable to make a lease of any
auoh lands belonging to such district or sub-’
division, such governing body shell give no-
tlce,ot Its lntentlon to lease suoh lands,
deaoriblng same, by publlaaffon of auoh n,Of-
ice in some newspaper published in’the oounty,
having a general olrculation therein, onae a
weak ror a period or thres (3) oonaeoutlrs
weeks, dsalgnatlng the tl’iue and plsoe after
auoh’publloation where suoh gov,erning body
will receive and oonslder bids for such miner-
al leasea as auah govern1 body may determine
to make. On the date sbeo2 ‘fled in said notloa,
such governing board or body shall reoelvs and
abnsider any and all blaa s,ubmltted for the
leasing of said lands or any portions theraod
which are advertised for leaalng, and in the
dlacretion of such governing body shall award
the lease to the highest and best bidder, sub-
mitting a bid therefor, pmvlded that if in
the udgment of such governing body the blda
sub mi tted do not represent the fair value or
such leaaea, suoh governing body in their dls-
oretlon msy reject same and again give notloe
and call for additional bias, but no leases
shall In any ‘event be made exoept upon pub110
hearing and aonsideretlon of said bids and af- ’
ter the notioe as herein provided.
Yieo. 2a. Provided that all auoh leases
my be granted by pub110 auction and that no
leases shall be executed in any oaae exoept
and unless the lessor shall retain at least
one-eighth royalty, provided further that In
no ease shall the primary term of aaid lease
. .
Hon. W. L. Edwards, Page 7, V-379
be for more than a period of. ten (10) years, ~.>‘!. :~
from the date of execution and’approvai there\,;~i”“’
of. !. ,; I
“Sec. .3. The’ fact that political subdi-’ -’ ”
vIsIons of the State have ,lands owned, held,
and used for public purposes but which purposes
will not be hindered or Interfered with by the
development of said ‘lands ‘for mineral, purposes,
and that some of said l,ancls* have. possibilItIea
of mi’nerals therein and that development of
said lands for mineral purposes Is necessary
In order to conserve said mineral estate Andy’
prevent the loss thereof, create an. emergency, :
and, an imperative public necessity that the
Constitutional Rule requiring bills .to be read
on three several days in’eaoh House be suspended
and said ,Rule Is hereby suspended; ~~and’thfe ,Act
shall take effect ~%nd be In force from and .ifter
,ita passage, andrit, isso’enacted;‘! .’
,,. , ‘.
There Is no requirement In the~law that ‘the
consideration for a mineral lease shall be cash. The per-
tinent provisions In Secti,ons 2 and Ra, aie.,n;;‘. . On the
date specified In said notioe, such ~governing aboard or
body shall receive and conaider ‘any e~rid‘a,lllbId,s submitted
~for the’leasing of said lands or any portion thereof which
are advertised for leasing, and In the ,discretIon of such
governing body shall award the lease to the highest and
best bidder submitting a bid therefor. . . No leases shall
be executed in any case except and unless the lessor shall
retain at least one-eighth royalty.” Th.e only limitation
on the discretion of the Commissioners1 Court in that re-
gard Is that the royalty shall not be less than one-eighth.
In lt. ‘G,~Wilmot ‘Coal Co. v. State Purchasing
Cosimlssion,, ,54,; S. W. (2d) 634, 86 A.L.R. 127, It Is held
that in determining who Is ‘the “lowest and best biddernthe.
purohasing commission must consider not only the amount of
the bid, but also business judgment, capacity, skill, I!+
sgons ibility of bidder, and qua1 ity of goods proposed to *
be furnished . (Emphasis’ added)
We are of the opinion that Article 6400a of
Vernon’s Civil Statute& requires that the Commissioners’
Court exercise Its discretion In passing on the question
as to what constitutes the highest and best bid for a min-
eral lease, which bid may be an offer of a royalty based
on a fractional part of mineral produced ,from the land to
be leased, or Mayobe for part cash plus a royalty of not
less than one-eighth of such production. The Commission-
ers’ Court Is authorized to consider all of the circum-
1.. .
Don. W. L. Edwards, Page 0, V-379
stances and, In its discretion, decide whether potential
prospects of discovery of mlherela and the value of a
drllllng contract with a lessee aa dlatlngulshea from an
“unless lease”, whloh authorizes extenalona by payment of
rentals, will be ln the interest of the county.
SWARY
DedlostIOn of a perk to the public doea
not require a grantee, and if made upon a re-
corded map of a townsite, ssle of lots in suah
townslte by the dedicators, with referenoea to
suoh map, constitutes aoceptanae of suo,h dedl-
cation on behalf of such purchasers and also on
behalr of the public, which thereupon becomes
1 rravoaabl e. Such dedloatlon and aoceptanoe
oreate separate easements ,for oustomery park
uaea in the publio and also in auoh lot pur-
chasers, with the fee title rermlnlng in the
aealaator. Suoh a dedication may be vacated aa
to the publla aa provided ln Art. 7227, V. C. 8.,
Eldelbaah t. Davis, 99 9. W. (2d) 1067.
The deolalon aa to what conatitutsa the
highest and beat bid, aa used in Artlole 5400a.
V.C.S., ror e mlnerai lease Of county owned Iand
i$l;~mtt he aound diearetion or the Commiaafon-
.
Yours very truly
W. T. Willfame
Asrrirtmt
ATTORNEY GEiitRhL
mw:wb:jrtl