Texas is the second largest state in the United States of America, covering roughly 268,596 square miles with numerous roadways, easements, and highways. Texas is also a leading oil and gas producer and within such a large state, chances are that oil and gas activity will be in the vicinity of one of these roadways. Accordingly, it is important to understand how ownership of certain roadways affects both landowners and operators alike.

There are a few ways to determine ownership of roadways. Often there is a straight-forward answer, evidenced by instruments in the public records. But occasionally, there may be no documentation available in the public records showing how a roadway was established, leaving no obvious answer to who owns the lands beneath the road. One such method to help with ascertaining ownership is a legal principle known as the Strip-and-Gore Doctrine. The Strip-and-Gore Doctrine is a public policy presumption against separate ownership of adjacent, relatively valueless strips or gores, gore being a small usually triangular piece of land. The Doctrine helps provide certainty in land titles, avoid costly litigation and promote land use. It is a rule of construction that essentially allows title to adjoining lands to pass in addition to the land conveyed. The Doctrine operates by presuming that a grantor did not intend to retain title to a strip of land abutting the conveyed property when that land was no longer of use to the grantor. The two pieces of land may be adjacent to each other (lying near or close to, but not necessarily touching) or adjoining (touching, sharing a common boundary).

For example, A owns a 1-acre tract of land. The 1-acre tract of land is bounded by a roadway easement. Thereafter, A conveys the 1-acre tract of land to B, but the deed is silent as to the roadway. Who owns the roadway? In this basic scenario, ownership of the roadway easement passes to B along with the 1-acre tract under the Strip-and-Gore Doctrine.

How is the Strip-and-Gore Doctrine Applied?

The Doctrine requires a balancing test of certain factors, including the relative size and value of the strip in relation to the contiguous tract. Under the Strip-and-Gore Doctrine, an interest in strips of land lying adjacent to a conveyed tract will presumptively pass along with the conveyed tract so long as: (1) the strip has no practical value to the grantor at the time of the conveyance, and (2) the conveyance contains no specific reservation of an interest in the strip. Texas courts have not used a strict formula when analyzing the size and/or value of the strip. Application of the Doctrine is highly dependent on the context and character of the tract. The specific facts and ownership history of the land must be examined to determine whether Strip-and-Gore will apply between what is described in a deed and the land that remains.

When applying the Strip-and-Gore Doctrine, it is important to remember that the value of the strip is determined at the time of the conveyance. For example, in the recent case Green v. Chesapeake [1], the court found that the Doctrine applied to a 30.5-acre roadway which was over half the size of the tract described in the deed, concluding that at the time, it was unreasonable to conclude that a grantor intended to keep the undevelopable and relatively valueless minerals under the adjacent road with the hope that one day pooling or new technology would come into existence.

While it is presumed that an adjoining roadway passes with the title to a larger abutting tract, title to the tract of land in question and to the adjoining tracts, as well as the specific deed language, must be analyzed to accurately determine ownership. For example, phrases such as “save and except the road” do not always rebut the presumption that the Strip-and-Gore Doctrine will apply; express language must indicate an intent to retain the interest. Additionally, the Doctrine will also apply when the land is described by lot and block or by a metes and bounds description, both which may only extend to the edge of a roadway. Unless the express terms of an instrument evidence the grantor’s intent to keep an interest, the presumption is that title to the road will also be conveyed as a matter of law.

The Strip-and-Gore Doctrine does not apply in every scenario and its application is not always abundantly clear. An analysis of the ownership must be done on a case-by-case basis to determine whether the Doctrine applies, and title must be traced to the tract of land and adjoining tracts. If you have questions about the Strip-and-Gore Doctrine or its possible application, please reach out to Mazurek, Belden & Burke, PC for more information.

 [1] Green v. Chesapeake Exploration, L.L.C., No. 02-17-00405-CV, 2018 WL 6565790 (Tex. App.—Fort Worth Dec. 13, 2018, no pet.) (mem. op.).

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