Face Challenges Confidently

424 Roberson v. El Paso Exploration & Prod. Co., L.P.

Tuesday, September 1st, 2015


Richard F. Brown
The following is not a legal opinion.  You should consult your attorney if the case may be of significance to you.
Roberson v. El Paso Exploration & Production Co., L.P., No. 06-12-00017-CV, 2012 WL 3805956 (Tex. App.—Texarkana  Sept. 4, 2012, no pet.) (mem. op.), held that a false recital in a deed that minerals “have heretofore been reserved and excepted” was ineffective as a present reservation.  The deed in question conveyed the land and provided as follows:
It being understood and agreed that all oil, gas, and other minerals, excluding coal, lignite and clay, in and under the above described tract have heretofore been reserved and excepted, together with the right to ingress and egress for the purpose of exploring and drilling for, producing[,] storing[,] and removing the same herefrom.
It was undisputed that Grantor owned all of the minerals and that there was no prior mineral reservation.  The parties aligned as successors in interest to Grantor and Grantee.  Grantor contended that the provision was effective to reserve the minerals to Grantor.
Grantor relied on Pich v. Lankford,  which construed a deed conveying land “[s]ave and [e]xcept an undivided three-fourths of the oil, gas and other minerals, on and under said land, which have been heretofore reserved.”  Three-fourths of the minerals had not been previously reserved, but the Pich court held that the giving of a false reason for an exception does not alter the quantum of interest excepted.  The Roberson court distinguished Pich, noting that although the recital as to the reason for the exception in Pich was in error, there was an actual exception as to the minerals in the Pich deed.  In this case, there was no language of reservation or exception in the deed.  The court cited additional authority for the general proposition that false recitals as to prior reservations or exceptions do not operate as a present reservation or exception.  The court relied on the canon of construction that a reservation in a deed should be construed against the grantor.  The court held that the language of this deed simply could not be interpreted as a reservation.
The case is consistent with the established rules that reservations are construed against the grantor and false recitals as to prior reservations or exceptions will not be construed as creating a present reservation or exception.