OIL, THE COURTS, AND THE RAILROAD
JAMES P. HART
At the beginning of the history of this State, the owner of
the surface did not have any ownership rights in the oil and gas
beneath the surface of his land. Under the civil law, which
was in force while Texas was under the rule of Spain and
Mexico, all minerals belonged to the sovereign and they did
not pass by the ordinary grant of the land without express
words of designation. When Texas became an independent
republic, many of the rules of the civil law were changed,
but by an early act of the Texas Congress all rights in min-
erals were reserved to the Republic. By the Act of June 3,
1837,1 it was provided "that no lands granted by this Govern-
ment shall be located on salt springs, gold or silver mines,
copper or lead, or other minerals, or on any island of the
Republic." Again, by the Act of January 20, 1840,2 adopt-
ing the common law and repealing certain Mexican laws, it
was expressly provided that the repealing act should not apply
to "the reservation of islands and lands, and also of salt lakes,
licks and salt springs, mines and minerals of every description."
There was thus manifested in the very beginning of
the State's history, at the very outset of its career, a
fixed purpose and established policy to reserve its min-
erals from the appropriation of the land, evincing, as
Judge Wheeler said in Cowan v. Hardeman, (26 Tex.
217) "the solicitude of the Legislature to guard the
interest of the State" in them."
The general policy of the State to retain the title to the
minerals within the State was not changed until immediately
after the Civil War. By an ordinance which was adopted by
the Constitutional Convention in 1866 (and which was effec-
tive without being ratified by a vote of the people) it was
11 Gammel's Laws of Texas, 1289; Paschal's Digest, 5th Edition, Art.
4402; Hartley's Digest, Art. 1811.
22 Gammel's Laws of Texas, 177; Paschal's Digest, 5th Edition, Art. 804.
"Cox v. Robison, 105 Tex. 426, at p. 431, 150 S. W. 1149.
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Texas State Historical Association. The Southwestern Historical Quarterly, Volume 44, July 1940 - April, 1941. Austin, Texas. The Portal to Texas History. http://texashistory.unt.edu/ark:/67531/metapth146052/. Accessed September 1, 2015.