Under Texas law, a Deed which conveys a tract or strip of land conveys the title to the land in fee. “Fee” is the short form of a fancy legal term “fee simple” which Black’s Law Dictionary defines as an interest in land […] being the broadest property interest allowed by law. In other words, by taking title to land in “fee” you own the surface the minerals and all rights associated therewith.
Conversely, a Deed which conveys to the Grantee a right to use a portion of the land, or grants access for a given purpose in or over the land, conveys only a right-of-way or easement (collectively referred to as “Easement” hereafter). Under Texas law, an easement is defined as a right, privilege, or advantage in real property, existing distinct from the ownership of the land. In other words, easements consist of an interest (or estate) in real property that does not constitute fee ownership. Most commonly, an easement entails the right of a person, or the public, to use the land of another in a certain manner.
While this may seem simple in theory, the failure to draft clear language in Texas Deeds has caused many acres to inadvertently change hands.
For example, in Stanbery v. Wallace,1 the Court was asked to interpret the following conveyance:
“Do grant, sell and convey unto the County Judge of Coleman County, Texas, and his successors in office, of the County of Coleman and State of Texas, all that certain real estate situated in the town of Coleman in the County of Coleman and State of Texas, viz: Lots Nos. Three (3) and Four (4) in Block No. Thirteen (13) of Phillips Addition to the town of Coleman, the two lots herein conveyed being deeded for the following purpose and trust, the said two lots are to be forever used as a street connecting the court house square on the east end of said lots with the Concho Street on the west end of said lots, and to be never used for any other purpose.” (emphasis added)
The instrument clearly indicates that the “purpose” of the conveyance is only to create a road, but does this create an Easement under Texas Law?
The Court of Appeals stated that the granting clause of the deed did not purport to grant an Easement for street purposes, but rather conveyed the land itself. This ruling is not unique under Texas Law.
In Brightwell v. Int’l Great Northern RR. Co.,2 the Supreme Court of Texas held that where the granting clause of a deed conveyed fee simple title to the property described, a recital in the habendum clause of the deed referring to the land “granted herein as a right-of-way” did not limit the grant to a mere easement.
Further, in Texas Electric Ry. Co. et al. v. Neale, et al.,3 the Supreme Court of Texas affirmed that “a deed which in the granting clause grants, sells and conveys a tract or strip of land conveys the title in fee, even though in a subsequent clause or paragraph of the deed the land conveyed is referred to as a right of way.”
In my opinion it is in Texas Electric Ry. Co. et al. v. Neale, et al. that the Supreme Court of Texas most clearly described the likely means by which you could determine whether the conveyance is an Easement or Fee. It all comes down to the granting clause.
Taking the conveyance in our first example, Stanbery v. Wallace, the language below constitutes the granting clause.
“Do grant, sell and convey unto the County Judge of Coleman County, Texas, and his successors in office, of the County of Coleman and State of Texas,”
This is then followed by the legal description of what is being conveyed by the grant.
“…all that certain real estate situated in the town of Coleman in the County of Coleman and State of Texas, viz: Lots Nos. Three (3) and Four (4) in Block No. Thirteen (13) of Phillips Addition to the town of Coleman…”
At that point the Court determined that the Fee interest in the described land had been conveyed and the language following the description was simply a limitation placed on the use of the land being conveyed but not it’s ownership. Thus, while Coleman County may be limited to building a road on Lots three (3) and four (4) in Block No. Thirteen (13) of Phillips Addition, the County owns the surface, minerals and all rights associated therewith.
In all of the above cases, because the Granting Clause of the Deeds conveyed the land instead of a right, privilege or purpose in the land, the Grantor lost all rights under the respective lands. Drafting of a conveyance is always important as under Texas Law the intent of the parties is to be followed but must be determined by the review of the “four corners” of the document itself. If the document is not ambiguous and does not properly represent the parties’ intent, someone is not going to get what they bargained for.
1 45 S.W.2d 198 (Comm. of App., Sect B – Jan. 27, 1932, judgment adopted).
2 49 S.W.2d 437, 439-40 (Tex. 1932).
3 252 S.W.2d 451, 453 (Tex. 1952).