Untitled Texas Attorney General Opinion

.- June 20, 1952 Hon. George M. Kelton Opinion NO. V-1468 County Attorney. Ector County Re: Authority of the Commis- Odessa, Texas sioners' Court to issue bonds and levy and col- lect taxes to build a livestock and mineral products exhibit build- ing on a tract of land which is subject to a Dear Sir: mineral lease. Your request for an opinion of this office reads in part as follows: 11 . . . your office is respectfully re- quested to furnish an opinion as to whether or not the Commissioners' Court of~Ector County, Texas, is authorized to issue nego- tiable bonds of the County and~to levy and collect taxes in payment thereof for the pur- pose of building a permanent building to be used f~orlive stock.and mineral products ex- hibits, on a loo-acre tract of land which said land is subject to an oil and gas lease." It was held in.Adams v. McGill, 146 S.W. 2d 332 (Tex. Civ. App. 1940, error ref.) that counties could build such buildings under the &ovisions of Article 2372d, V.C.S.~,but had no authority to issue bonds for this purpose. Article 2372d-2, V.C.S., was subsequently enac~tedin order that the.construction of these buildings might be accomplished through the issuance of bonds. Att'y. Gen. Op. v-962 (1949). There- fore, if the commissioners' courthas authority to con- struct the building it has equal authority to issue bonds and levy taxes for this purpose, assuming, of course, that the taxes levied will not increase the tax rate for permanent improvements to an amount which ex- ceeds that established under Section 9 of Article VIII of the Constitution of Texas. ._ Hon. George Me Kelton, page 2 (v-1468) - The only question for determination is whether the existence of the oil and gas lease will prohibit the commissioners' court from constructing the building in question. In Brazes River Conservation Reclamation District v. Adkisson, 173 S.W.2d 294, 298 (Tex. Civ, App. 1943, error ref.), it is stated: "An oil and gas lease carries with it the right to possession of the surface to the extent reasonaiblynecessary to enable the lessee to perform the obligations im- posed upon him by the lease." In Grubstake Inv. Ass'n. v. Coyle; 269 S.W. 854, 855 (Tex. Civ. App. 1925, error dism.), it is stated: ltInthe construction of an oil lease con- tract.such as this, it must be construed most strongly against the lessee, for he is contract- ing only for the right to bore for minerals beneath the surface of the earth. He acquires -- no title to the surface, or any other right, except for the sole purpose; that is, a use and easement of the surface. Since that is the case, in a controversy such as this, the lessor retains and has parted with no surface rights to the use of the land for any purposes save the mineral rights, and what incidentally and contractually goes with that right. The contract gives 'the right of ingress and egress at all times for the purpose of drill- ing and mining and operating for oil and gas and other minerals, and he shall have the ex- clusive right to drill well, lay pipe lines, build tanks, and other structures.' These rights are sec'ureand prior to any right of appellees. 0oD "It was a question of fact as to whether the occupancy by appellees of the small part of the 20-acre lease did interfere with the reasonable use in the development of appel- lanks ' oil and mineral use under the surface. a** Based on the above authorities it becomes obvious that an answer to your question presents one of fact which __ this office can neither pass upon or answer categorically. Hon. George M. Kelton, page 3 (v-1468) If, however, the aonstruction.of the building will not interfere with the rights of the lessee Under the provi- sions of the oil and gas lease and further if the opera- tions under the provisions ,of the oil and gas lease will not prevent the use of,the building for the purpose of exhibiting livestock and mineral products, it is our opinion that the commissioners' court of Ector County may issue bonds and levy and collect taxes for the purpose of building a permanent building to be used for this purpose, This opinion is limited to oil and gas leases generally and does not purport to pass upon any specific provisions or reservations which may appear in the lease in question since we have not been furnished with a copy thereof. In this connection, as a matter of practical relations with the lessee, it would probably be wise for the commissioners' court to advise the lessee of its plans. SUMMARY The Commissioners' Court of Ector County is authorized to build a livestock and mineral .. products exhibit building on a tract of land owned by the county which is subject to a mineral lease if the construction of the build- ing will not Interfere with the rights of the lessee under the provisions of the lease and if the operations under the oil Andygas lease will not prevent the use of the building for the purpose of exhibiting,llvestock and mineral products. Under Section 2 of Article 2372d-2, V.C.S., the county may issue bonds for this purpose. Yours very truly, APPROVED: PRICE DANIEL Attorney General J. C. Davis, Jr. County Affairs Division Mary K. Wall Reviewing Assistant Charles D. Mathews First Assistant BA:am