Schwarz v. State

703 S.W.2d 187, 29 Tex. Sup. Ct. J. 145, 87 Oil & Gas Rep. 602, 1986 Tex. LEXIS 865

• Court: Texas Supreme Court
• Decided: January 15, 1986
• Docket: C-2592
• Status: Published

Opinions

RAY, Justice,

concurring.

The quagmire deepens. The ill-begotten journey begun by the court fourteen years ago in Acker v. Guinn, 464 S.W.2d 348 (Tex.1971) has now come nearly full circle. Its wake is a trail of irreconcilable cases. I concur because I agree with the result reached by the majority but disagree with the reasoning.

Texas case law on the meaning of the word “mineral” in instruments conveying or reserving “oil, gas and other minerals” consists of a strand of incompatible decisions. Today’s opinion neither reconciles the cases nor helps to rectify the mistakes of the past.

The problems began in Acker v. Guinn, supra, with the simple question of the meaning of the word “mineral” in an “oil, gas and other mineral” reservation. For decades the term mineral was governed by the ordinary and natural meaning of the word. See, Heinatz v. Allen, 147 Tex. 512, 217 S.W.2d 994 (1949) and Cain v. Neumann, 316 S.W.2d 915 (Tex.Civ.App.—San Antonio 1958, no writ). Then, the Acker court held that “[ujnless a contrary intention is affirmatively and fairly expressed, ... a grant or reservation of ‘minerals’ or ‘mineral rights’ should not be construed to include a substance that must be removed by methods that will ... consume or deplete the surface estate.” Acker, at 352. Because of that opinion, it became impossible to look at a conveying instrument and determine which substances of the earth an “oil, gas and other mineral” transaction conveyed; it was no longer possible to rely on a title examiner’s opinion as to ownership of minerals. Thus, estate owners had to litigate ownership.

Six years later the court handed down Reed v. Wylie, 554 S.W.2d 169 (Tex.1977) soon followed by Reed v. Wylie, 597 S.W.2d 743 (Tex.1980). In a noble attempt to do equity to the surface estate owner, the court developed the near surface destruction test which made ownership of minerals a fact question. However, instead of simplifying the problems created by Acker, the Reed court compounded them. In an unspecific grant or reservation of minerals, all deposits found within 200 feet of the surface are owned by the surface estate owner as a matter of law. This rule, the court has insisted, effects the intent of the parties. Moser v. U.S. Steel, 676 S.W.2d 99, 101 (Tex.1984).

The court next addressed the issue in Moser v. U.S. Steel, supra. Citing Heinatz v. Allen and Cain v. Neumann, the Moser court correctly abandoned the Acker and Reed approach for an “ordinary and natural meaning of the word” approach coupled with a rule to compensate the surface owner for surface destruction. As I noted in my dissent in Moser, I agree with this approach, but disagree with the prospective limitation imposed on the compensation rule. The Moser rule does not consider the intent of the parties in pre-June 8, 1983 severances and leaves those estate owners in the same quandry of title uncertainty which Moser purported to resolve. This was exemplified in the recent decision of Friedman v. Texaco, 691 S.W.2d 586 (Tex.1985). In my dissent in Friedman, I warned of the complexity of our problem. The Friedman severance took place in 1959 when the definition of the word mineral was governed by Heinatz v. Allen and Cain v. Neumann, supra, the very cases cited by the Moser court in announcing the “ordinary and natural meaning of the word” test. These are the cases that should have controlled that decision. However, because the Friedman severance took place before June 8, 1983 the majority employed the Acker and Reed 200 foot surface destruction test to deny the Friedmans the ownership of their uranium.

The case before us today involves a pre-June 8, 1983 severance. Although this court in Friedman reaffirmed the application of the near surface destruction test in such severances, the majority does not apply that test to the minerals in the present case. The Friedman opinion, the opposite result, is never fully distinguished. Instead, the majority stretches back to Las Siete Partidas, jumps in and out of century old Land Sales and Mining Acts, and makes tenuous distinctions between transactions among private parties and those involving the State. By the end of it all, the majority’s law gropes in this quagmirish fog: the surface belongs to the surface estate owner and the minerals belong to the mineral estate owner, except in pre-June 8, 1983 severances where nobody knows who owns what (not even a title examiner) until ownership has been litigated, in which case if some portion of a mineral is found within 200 feet of the surface, it belongs to the surface owner unless, of course, the land was purchased pursuant to the Land Sales Act of 1895, in which case even though the estates were severed before June 8, 1983, the minerals belong to the mineral estate, or the State.

The contortions the majority has gone through to reach its decision today could and should have been avoided. To reach the equitable result it strives for, the majority should state the law as found in Cain and Heinatz: the meaning of an “oil, gas and other (any) mineral” conveyance or reservation should be controlled by the ordinary and natural meaning of those words.