In the author’s opinion, the only evidence that could be introduced, which would rebut the presumption that title to the lands at issue passed to the title claimant falls into one, some or all of three separate categories. If the evidence introduced by the opposing party is found by the trier of fact to be competent and factually correct, then the presumption that title passed to the title claimant will be rebutted and the title claimant’s attempt to establish title under the Dominion Statute will fail. 33 It cannot be emphasized enough that the opposing party only need introduce competent and sufficient evidence to rebut the fact that the State of Texas is indeed claiming an interest in the lands at issue OR introduce evidence rebutting Step One a. or b. OR Step Two a., b. or c. Just one jury finding in favor of the opposing party will cause the presumption of the passage of title to the title claimant under the statute to be deemed rebutted, leaving the parties to prove their title other than under the Dominion Statute. More importantly, the foregoing identified controverting evidence is the only evidence which will allow for the presumption of title passage to the title claimant to be rebutted. Conversely, if the opposing party fails to introduce sufficient and competent evidence such that the trier of fact cannot find that any of the foregoing elements have been rebutted, the title claimant is due a directed verdict that indeed the title to the lands at issue passed to it under the statute. 34
substances for a short period of time, not oil and gas production) constituted dominion over the minerals for the requisite period of time and was thus sufficient to establish a prima facie case of title to the oil and gas under the lands at issue. The court was very clear that, exactly like adverse possession under the ten year statute in Texas, dominion over the mineral estate must be exercised directly over minerals by the production of same. The severance of the mineral estate put the extra burden on the title claimant to demonstrate its specific dominion over the minerals – mere surface use was found to be totally insufficient. Judgment for the severed mineral owner(s) was thus rendered and the cause of action by the title claimant under Article 5519a failed. The next case dealing with severed minerals is Pagel v. Pumphrey. 36 This case takes a different tack from the previous case (and in the author’s opinion, addresses the issue of compliance with the Dominion Statute in a more direct and understandable decision). In this case, a one-third mineral interest had been severed early in the chain of title. The title claimant asserted title under Article 5519a to that severed one-third mineral interest. Without additional discussion, the court held such title assertion failed as a matter of law since the record did not reflect that the title claimant had paid taxes on the severed mineral interest for the required twenty-five (25) years preceding the filing of the title litigation – period! Obviously, taxes on the severed mineral interest could not be paid by the title claimant unless and until production of oil and gas was established. A failure to pay taxes on the severed mineral estate for the requisite period of time caused the title claimant’s assertion under the Dominion Statute to fail as a matter of law. CONCLUSION: Just like an adverse possession claim filed under the 5, 10 or 25 year statutes, where oil, gas and other minerals have been severed prior to the
• The Case of Severed Minerals and the Dominion Statute
Fortunately, there are at least two Texas cases which directly address the situation where the oil, gas and other minerals have been severed and an assertion was made by the title claimant that its use and possession of the surface (not drilling and/or production of oil, gas and other minerals) for the requisite period of time (twenty- five years preceding the filing of the title litigation for the lands and estate at issue) is to be considered as dominion for purposes of Article 16.029. The first case is Carminati v. Fenoglio. 35 In that case, grantors/owners Paul Veretto and Barney Fenoglio conveyed the lands at issue to John Carminati reserving all minerals in the above described lands…, which reservation was determined to be a reservation of the oil and gas as a matter of law by the court. The successor in interest to John Carminati asserted that its use and possession of the surface estate (sale of rock and other
33 Janes v. Gulf Production Co. (Tex. Civ. App.) 15 S.W.(2d) 1102, Wiggins v. Houston Oil Co. of Texas, 203 S.W.2d 252(CCA - 1947); Adams v. Brown, 113 S.W.2d 310 (CCA – 1937) 34 Love v. McGee, 378 S.W.2d 96 (CCA – 1964)
35 Carminati v. Fenoglio, 267 S.W. 2d 449 (CCA – 1954)
36 Pagel v. Pumphrey, 204 S.W.2d 58 (CCA – 1947)
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N at i onal A ssociation of D i v i s i on O rder A nalys t s
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