Untitled Texas Attorney General Opinion ( 1949 )

TEE ATTO~EYGE~RAL
OF TEXAS
May 4, 1949
Hon. William J. Murray, Jr., Chairman
Rallroad Commission of Texas
Austin 11, Texas
Opinion NO.V-823
Re: Time of vesting of limita-
tion title with reference to
subdivisionunder Rule 37.
Dear Sir:
The question for opinion is contained in
your letter from which we quote as follows:
"As has previously been stated, it
is a Commission policy to grant a first
well on any~separatefee tract which ex-
isted prior to the discovery of oil In
the East Texas Field, but that any sub-
division of property subsequent to the
discovery of oil which is in violation
of Rule 37 does not entitle the owner of
the subdivided property to separate de-
velopment. Consequently,the date -upon
which a person acquired title to a tract
of land is as Important In some cases for
the determinationof his right to a well
as is the question of his legal title to
the land.
"Therefore,we wish to ask the ques-
tion as to the date of the acquisition of
title of a tract of land in which title
has matured to the present owner by virtue
of adverse possession. Specifically,we
have Rule 37 case ~0.38,031 pending, in
which the J.K. Hughes Oil Company, lessee
of a 0.64 acre Pomp Mitchell Heirs tract
in the J. g. Caruthers and Mary Van Winkle
Surveys, East Texas Field, Is requesting
.
Hon. William J. Murray, Jr. - Page 2 - v-823
a permit for a first well on this tract.
It is our understandingthat the courts
have awarded title to the Pomp Mitchell
heirs on this tract by virtue of ten years
adverse possession. It is a disputed ques-
tion of fact as to the date that the ad-
verse possession first began, but for the
purpose of this request, we will assume
that the adverse possessionbegan in 1929.
"If legal title became vested in the
Pomp Mitchell heirs In 1929, then this
tract was subdividedprior to the discovery
of oil in the East Texas Field, and under
our understandingof the law and our es-
tablishedpolicy, this tract would possibly
be entitled to a first well. If, however,
legal title did not mature by virtue of ad-
verse possessionuntil the conclusion of
the ten year period, which under our as-
sumption would be 1939, the tract was then
subdivided after the discovery of oil in
the East Texas Field and Is not entitled
to separate development to prevent confis-
cation of property since it 3-sa subdlvi-
sion in violation of Rule 37.
“We, therefore,ask the question, when
does title mature as a result of adverse
possesalon;and if different conditions of
adverse possession could affect the opinion
as to the date of the maturity,,then we re-~
quest an opinion as to the specific clrcum-
stances involved In the J.K. Hughes case."
You have also furnishedus with your entire
file on the application, including the briefs of ap-
plicant and protestant. Fro-1these and the file, it
appears that the question of subdivisionis only one
of several grounds upon which the application is be-
ing contested. In view of this, we wish to make it
plain that this opinion is concerned only with the
abstract legal question stated in your request for
opinion.
As your request for opinion indicates, the
time when possession began is a controvertedquestion
of fact which we make no attempt to solve. As sug-
,
Hon. William J. Murray, Jr., Page 3 - v-823
gested by you, we merely assume without deciding
that the possession which finally culminated in
the limitation title began prior to discovery of
oil in the East Texas Field.
Although a limitation title does not ma-
ture, ripen, or vest until the llmltationperiod is
completed (1 Am.Jur.p.797;2 c.J.s.P.~~~),never-
theless, once the period Is completed, the title re-
lates back to the date possession began. The doc-
trine of relation back is discussed by Judge Hutche-
son in Counce v. Yount-Lee 011 Co., @' F.2d 572 (CCA.5th,
1937, cert. den.302 U.S.bg3) from which we quote as
follows:
11
. The answer is to be more broad-
. .
ly sought and found. It Is to be, it is
found in the self-evidentproposition,that
it is a contradictionin terms to say, as
the Texas Statutes and most other statutes
of limitation do, that the effect of the bar
of adverse possession is to give the poss-
essor full title precluding all claims, and
to say at the same time, that the possessor
shall be liable In damages for his acts of
possession done while his Inchoate title was
being perfected. .It is to.be found, not only
In the terms of the Texas Statutes but in the
general theory which underlies prescription,
the theory of relation by presumption,the
theory that once matured, the title relates
back to the beginning of the prescriptive
period. Under that theory It is presumed
that the origin of the title was rightful,
not wrongful, that the possession which has
matured it was in support, not in deroga-
tion of the rightful title, and that he, who
by a possession perfect in the law has ma-
tured a title, has in theory of law been the
owner of the title from the beginning. There
is no place In the theory of prescriptionor
limitation for the contention appellants put
forward, that after the title has matured,
the former owner of the land can call the
limitation owner to account, for any of his
actions done, on or to the land, in the course
of the unchallengedpossession, that has ri-
pened his right and title to it. The princl-
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Hon. William J. Murray - Page 4 - v-823
~pleof relation Is a comprehensiveand fa-
miliar one in the law of real property.
It treats one ousted from possessionwho
has made re-entry, as by relation in con-
tinuous possession. Alliance Trust Co. v.
Nettleton Hardwood Co., 74 Miss. 584,
21 So. 396, 36 L. R.A. 155, 60 Am. St. Rep.
531. It gives the owner of an Inchoate
title when his title has ripened, title as
from the beginning. Gilbert v. McDonald,
;&Minn. 289, 102 N.W.712, 110 Am. St.Rep.
The principle has pecular applica-
tlon to prescriptionand titles by llmi-
tatlon. It has precise and compelling'force
in matters of limitation. This is horn book
law. 1 R.C.L.p.690;1 Am. Jurisprudence
p.797; 2 C.J. 251. 5 In 'Thompsonon Real
Property',@ 2516 (quoted in Stolfa v. Gaines,
140 Ok1.292,.283~.563,567) the principle
is thus stated; 'Adversepossession for
sufficient time to bar an action to recover
real estate confers title, against any ti-
tle whatsoever,as effectivelyas if the
original owner had made a formal conveyance
to the possessor. The title is as full and
complete as if the possessor had always
held the undisputed title of record. The
rule rests upon the theory that;.whenposs-
ession and use are long continued, they
create a presumptionof lawful origin;
that is, they are founded upon such instru-
ments and proceedingsas in law would pass
the right to the possession and use of the
property.
11
. . .
"The rule has peculiar force in Texas.
The effect of its statutes ,isto raise an
lrrebuttablepresumption that the person,
whose action is barred, has been divested,
from the beginning of the adverse possession,
of every attrlbute and incident of title to
the land. His title, right, and interest in
it have been obliterated,the person whose
possession has barred him has taken his
place, and holds title by the same chain he
held It by direct from the sovereigntyof
Hon. William J. Murray, Jr. - Page 5 -V-823
the soil. Texas Jurisprudence,~01.2, pp.
14 to 18, inclusive. Particular cases ll-
lustrating the point are: Burton's Heirs v.
Carroll, 96 Tex. 320 72 S.W. 581; Eckert
v. Wendel, 120 Tex. 618, 40 S.W.2d 796,
76 A.L.R. 855; MacGregor v. Thompson, 7
Tex. civ. A p; 32 26 S.W. 649; Qoldfrank
v. Young, 6f:Tex.432; First Nat'1 Bk. of
Alvarado v. Lane (Tex.Clv.App.)265 S.W.
763; Campbell v. Halt, 115 u. S. 620, 6 S.
Ct. 209, 29 L. Ed. 483; Marshburn v. Stewart
(Tex.Clv.App.)295 S.W. 679; Grigsby v. Peak,
57 Tex. 142, 143."
See Comment on Counce v. Yount-Lee Oil Co. (supra) In
51 Harvard Law Review 160 (1937). See generally on the
vesting and effect of limitation title; Ballantine,
Title by Adverse Possession (1918), 32 Harvard Law
Review 135 142. and Blngham, The Nature and Bnportance
of Legal P&se&ion (1915), 13 Michigan Law Review,
f 561, 563 and 627 to 630.
The briefs call attention to a line of
cases dealing with the question of determining the
character of property interest, viz. whether separate,
community, or common, finally acquired by the occupant
In adverse possession at the end of the limitation
Representativeof these cases are: Hutto v.
%?di39 Tex 571 164 S W 2d 513 (1942); Sauva e v
&&p, -h:,;
143 S:W. 259 (Tex: tiv. App.1912, error
O’Meara v. Williams, 137 S.W.2d 66 (Tex.Civ.App.
-1940; error d&sm., Jud car.); Brown v.~~FosterLum-
ber Co., 178 S.W. 787 $"'
Tex.Civ.App.1915,error ref.[.
At first glance, these cases seem to deny the
doctrine of relation back ~inasmuchas they look to the
end rather than the beginning of the period to determine
the type of property interest acquired by the adverse
possessor. However, the problem involved in each is
determining in whom and In what capacity the lI.mltatlon
title has matured and the cases neither affirm nor deny
the doctrine that once matured or vested the title
relates back to the time possession began. Privity
of possession,through successive adverse claimants
permits, under our limitation statutes, (Article 5516,
V.C.S.) the occupant inpossession at the end of the
period to be vested with the whole title and necessarl-
ly the marital or other facts which relate to that
.
Hon. William J. Murray, Jr. - Page 6 -V-823
particularadverse claimant must be looked to in
order to determinewhether the title 80 acquired
by him is separate or community, or in common with
others. See Hutto v. Cook (supra).The determina-
tion of this question is made ir.dependentlyof the
doctrine of relation back. Having determinedby
looking to the end of the period that "A" has ma-
tured the title as his seaprate property does not
mean that "A's" title will not relate back to the
date of the possesslotyhich resulted in conferring
the whole title upon A .
It is our opinion that the doctrine of re-
lation back is one of general applic tlon to llml-
tatlon titles and that it applies folit
the purpose
of determining the effective date of subdivisionun-
der the rules of the Commission.
We believe that this holding Is in keeping
with the spirit of the rules laid down by the Com-
mission in connectionwith our:onservationstatutes.
The exceptions to Rule 37 were for the purpose of per-
mitting recovery of 011 and gas, either to prevent
waste or confiscation,and were designed to permit
rather than impede such recovery. Brown v. Humble Oil
126 Tex 296
%&olia Pet:Co.
5th, 1936, cert.
Should we deny the application of the doctrine of re-
lation back to your SubdivisionRule,'then necessarily
all titles acquired by limitation but matured, whether
'oneday or nine years, after discovery of oil within
the area would fall within the SubdivisionRule and
as a matter of law such tracts would be unable to ob-
tain exceptions to Rule 37. The title finally acquired
by limitation is in legal contemplationa rightful and
valid title (Counce v. Yount-Lee Oil Co., supra, and cases
therein cited‘)and when initated prior to the
discovery of oil within an area cannot be said to fall
within the vice intended to be remedied by the Subdi-
vision Rule. Such Rule was designed to prevent cir-
cumventionof the conservationlaws by persons volun-
tarily acting or conniving to create subdivisionsfor
the purpose of applying for exceptions under Rule 37.
Gulf Land Co. v. Atlantic Refining Co., 134 Tex.59,
131 S W 2d 73 (1939). 31A Tex.Jur.708and cases
therein'clted. As a'general proposition we think it
evident that the ordinary li,mitationclaimant prior
to discovery of oil within the area had no such inten-
. -
Hon. William J. Murray, Jr. - Page 7 - v-823
tlon.
In addition, in order to mature the llmi-
tatlon title the land concerned must be carved away
from the adjacent land and so visibly and openly held
under a claim of right as to give notice of the claim.
Article 5515, V.C.S. As a condition precedent to per-
fecting the title, a physical segregation or subdl-
vision of the tract from the land adjacent thereto
must occur at the inception rather than the conclusion
of the possession.
For all of these reasons, we are of the
opinion that a title acquired by adverse possession
relates back to the commencementof possesslon. The
date on which the adverse possession begins la the
date to be held in determiningwhether there has been
a voluntary subdlvlslon in Rule 37 aaaes before the
Railroad Commlsslon.
A title acquired by adverse possession
vests at the end of the statutory oeriod but
having vested relates back to the iommence-
ment of possession. Counce v, Yount-Lee
Oil co., 87F.2d52 CCA 5th 19r
cart.bsn. 302 U.S.ri93 I.' &?lisdogtrine'
applies for-the purpose of'determlnlngthe
effeotlve date of subdivisionunder the
Rules of the Railroad Commlsslon.
Yours very truly
ATTORNEY QENERAL OF TEXAS
By a&
H. D. Prue& ;r
Assistant'
HDPrbt
APPROVED
ATTORREYQERRRAL