THE SUPPLEMENTAL TITLE OPINION – IS IT STILL NECESSARY? Part One
By Terry E. Hogwood, Attorney
(NOTE: Parts of this article are lifted from an earlier article entitled THE MYTH OF THE CURED TITLE OPINION supplemented by THAT TITLE REQUIREMENT IS SATISFIED! REALLY? written by the author. Quotes and attribution to that article have been eliminated in this article at the author’s election.) Today, there is a troubling trend in the title examination process in the oil and gas industry not to secure a supplemental title opinion for various reasons (time, cost etc.) once an original title opinion has been rendered. The author has elected to use a simple format setting forth the usual preliminary steps taken in the drilling process, including the title approval process, to analyze and discuss various aspects of the supplemental title opinion. As an introduction to the topic of supplemental title opinions, the following brief, partial case analysis is a real-life example of not only obtaining a supplemental title opinion but also ensuring that both the original title opinion and supplemental title opinion(s) accurately identify the correct legal problem(s) and that the curative materials submitted in satisfaction of each title requirement actually “cure” the title issue being addressed. The case ( Concho Resources, Inc. v. Ellison , 627 S.W.3d 226 (Tex. 2021)) has shown how important a title opinion (especially a supplemental title opinion) can potentially be in a Texas trespass to try title case. In this case, every title examiner in at least five separate title opinions (original and supplemental) opined on a pressing and very real title problem with the description of the lands in an oil and gas lease purporting to cover and pertain to the lands under examination.
correctly identified the source deed that divided a larger tract into two (2) tracts, including the subject tract under examination. This source deed conveyed and correctly described the tract not under examination as being “All of Section 1, Block 6 H&TC Ry Co. Survey located North and West of the public road which now runs across the corner of said survey containing 147 acres more or less.” Actually, upon a proper survey, this tract would have been found to contain 301 acres. The tract under examination was the “493” acre tract remaining after the described tract was conveyed. The owner of the remaining “493” acres (assuming the tract originally contained 640 acres AND that the 147 acre was an accurate acreage count (it was not!)) thereafter leased that tract utilizing the following description:
“South part of Sec. 1, Block 6, H&TC RR Co (A-312) 493 acres”
The foregoing description is from the actual un- recorded lease. The examining attorney opined in the original title opinion, a copy of which is in the possession of the author: “As a technical matter this description is incorrect.” It is interesting to note that the author of this opinion used the following description to identify the lands under examination: “…covering the South 493 acres of Section 1, Block 6, H&TC Ry. Co. Survey, Abstract 312, Irion County, Texas, containing 493 acres, more or less.” There was no 493 acre tract. Quite the understatement by the examining attorney since neither description contained: (i) a beginning point; (ii) calls for direction and distance; (iii) an ending point or (iv) a deed reference to a correct property description. The actual lease description only contained an acreage call (493
The original title opinion for drilling purposes
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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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