## Facts

- Grande, Inc. owned land in Fayette County, Texas, but only an undivided one-half mineral interest; the other undivided one-half mineral interest was outstanding in Texas Osage Cooperative Royalty Pool.
- Grande conveyed the property to Gordon and Clarice Fogelman by general warranty deed describing two tracts: (1) an 86.82-acre tract and (2) an undivided one-half interest in a 0.03-acre tract.
- The deed included a “less, however, and subject to” clause acknowledging the outstanding undivided one-half mineral interest.
- The deed also contained a reservation stating that the grantor reserved “an undivided 1/4th of the royalty” covering minerals “in, to and under or that may be produced from the lands above described.”
- The Fogelmans later conveyed the property to James R. Averyt (as trustee), who sought a declaratory judgment to determine the parties’ mineral and royalty interests.
- Grande contended its reservation was a one-fourth royalty burden on production from the entire described tracts; Averyt contended the reservation could only burden Grande’s undivided one-half mineral interest.

## Issues

1. Whether a reservation of “an undivided 1/4th of the royalty” from the “lands above described,” in a deed that is “less and subject to” an outstanding undivided one-half mineral interest, reserves a fraction of the royalty from the entire mineral estate under the described land or only from the grantor’s undivided mineral interest.

## Decision

- The Supreme Court of Texas affirmed the court of appeals and the trial court.
- The Court held the reservation clause reserved an undivided one-fourth of the royalty from minerals produced from the entirety of the tracts described in the deed, not merely from Grande’s undivided one-half mineral interest.
- The Court construed “lands above described” to refer to the physical tracts described in the granting clause, rather than to the quantum of the grantor’s mineral ownership.
- The Court treated the “less and subject to” clause as recognizing the outstanding interest and limiting the warranty, not as limiting the scope of the reservation.

## Legal Principles

- When a deed reserves a fractional royalty (or mineral) interest tied to the “land(s) described” (or similar phrasing), the fraction is generally taken from the entire mineral estate under the described tract unless the deed clearly provides otherwise.
- A “less and subject to” clause acknowledging an outstanding mineral interest typically functions to recognize the outstanding interest and protect the grantor’s warranty, and does not, by itself, restrict a separately stated reservation measured by the described land.
- Texas courts favor continuity in settled deed-construction rules for mineral titles; established interpretive rules control absent clear contrary language.

## Conclusion

The Court construed the deed’s reservation of “an undivided 1/4th of the royalty” from the “lands above described” as reserving a one-fourth royalty interest measured against production from the entire described tracts, notwithstanding that the grantor owned only an undivided one-half mineral interest and the deed was made subject to the outstanding one-half mineral interest.


Averyt v. Grande, Inc., 717 S.W.2d 891 (Tex. 1986)