have taken judicial notice of this widespread phenomenon. Hysaw v. Dawkins, 483 S.W.3d (Tex. 2016) Therefore, the very use of 1/8 in a double fraction “should be considered patent evidence that the parties were functioning under the estate misconception.” (2) As the Court pointed out in Hysaw , “’the near ubiquitous nature of the 1/8 royalty—dubbed by some as ‘the legacy of the 1/8 royalty’ or ‘historical standardization’—is something that “influenced the language used to describe the quantum of royalty in conveyances of a certain vintage.’” “This prevalent belief and confusion resulted in parties mistakenly assuming the landowner’s royalty would always be 1/8. Therefore, parties would use the term 1/8 as a placeholder for future royalties generally— without anyone understanding that reference to set an arithmetical value.” The Court disagreed with the court of appeals’ conclusion that presumed since no oil and gas lease was in effect at the time of the 1924 deed, the estate misconception theory did not apply. In reaffirming Hysaw , the Court stated: “When courts confront a double fraction involving 1/8 in an instrument, the logic of our analysis in Hysaw requires that we begin with a presumption that the mere use of such a double fraction was purposeful and that 1/8 reflects the entire mineral estate, not just 1/8 of it. … Our analysis in Hysaw thus warrants the use of a rebuttable presumption that the term 1/8 in a double fraction in mineral instruments of this era refers to the entire mineral estate. Because there is “little explanation” for using a double fraction for any other purpose, this presumption reflects historical usage and common sense.” The Court made clear that this presumption may be rebutted by other language in the
instrument evidencing a different intent. But there need not be other language in the instrument supporting the presumption (as there was in Hysaw) for the presumption to apply. “The use of a double fraction in this deed, combined with the lack of anything that could rebut the presumption, is precisely why we can conclude as a matter of law that this deed did not use 1/8 in its arithmetical sense but instead reserved to the Mulkey grantors a ½ interest in the mineral estate.” The Court then concluded that, even if the deed did not clearly reserve ½ of the minerals, the record conclusively establishes that the Mulkeys acquired the other 7/16 mineral interest through the “presumed-grant doctrine.” The presumed grant doctrine, ‘also referred to as title by circumstantial evidence, has been described as a common law form of adverse possession.’ The Court noted the presumed-grant doctrine required a proponent to establish three elements: (1) A long-asserted and open claim, adverse to that of the apparent owner; (2) nonclaim by the apparent owner; and (3) acquiescence by the apparent owner in the adverse claim. The Court disagreed with the court of appeals that there is a fourth element, a gap in the chain of title. The record showed that, for nearly ninety years after the execution of the original deed, the parties continued without exception to engage in transactions and to make representations about their ownership interests consistent with the understanding that each original side had a ½ interest in the minerals. The Court concluded that this historical evidence “conclusively satisfies the presumed-grant doctrine’s requirements.” “The filing of this lawsuit in 2013 cannot negate nearly a century of overwhelming evidence that the White parties never previously made such a claim in all those years.”
_____________________ (2) Id. at 90
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G rowth T hrough E ducat i on - A pr i l / M ay / J une 2023
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