By James L. Gosdin Stewart Title Guaranty Company (800 ... · STEWART TITLE GUARANTY COMPANY 1980...

By James L. Gosdin

Stewart Title Guaranty Company (800) 729-1902

[email protected]

December 3, 2004 San Antonio

Texas Land Title Association

STEWART TITLE GUARANTY COMPANY 1980 Post Oak Boulevard, Suite 710

Houston, Texas 77056

JAMES L. GOSDIN

BIOGRAPHIC INFORMATION

James L. Gosdin is Senior Vice-President and Senior Underwriting Counsel for Stewart Title Guaranty Company. Jim received his Bachelor's Degree from the University of Texas and his Juris Doctorate with honors from the University of Texas School of Law.

A Stewart associate since 1976, Jim underwrites title insurance transactions throughout the United States, reinsurance transactions, and international title insurance transactions for the company. Jim is Board Certified by the Texas Board of Legal Specialization in farm and ranch, commercial, and residential real estate. Jim is a member of the American Land Title Association Forms Committee, he is chair of the ALTA Liaison Committee with the National Association of Insurance Commissioners, and he is co-chair of the ALTA Reinsurance Committee. He also serves on the Bylaws and the State Legislative and Regulatory Action Committee. Jim is a member of the American Bar Association, the Texas Bar Association and the Houston Bar Association. He is also a member of the Texas Title Standards Joint Editorial Board and the Electronic Recording Advisory Committee to the Texas State Library and Archives Commission. Jim was named the 1998-1999 Title Person of the Year by TLTA.

In 1995, Jim wrote the ABA publication, Title Insurance: A Comprehensive Overview. Jim’s 2000 revision of Title Insurance: A Comprehensive Overview, Second Edition is available through ABA Book Publishing:

American Bar Association Publications Planning & Marketing 750 North Lake Shore Drive Chicago, Illinois 60611 Fax: (312) 988-6030 Web: www.abanet.org/abapubs Title Insurance: A Comprehensive Overview, Second Edition ISBN #1-57073-830-0

[email protected]

Virtual Underwriter: www.virtualunderwriter.com

TABLE OF CONTENTS

1.0 Strips & Gores....................................................................................................................................Strips – 1

2.0 Appurtenances....................................................................................................................................Strips – 7

3.0 Mother Hubbard Clauses....................................................................................................................Strips – 9

4.0 Establishing Boundary Lines............................................................................................................Strips – 11

5.0 Vacancies & Excess Acreage ...........................................................................................................Strips – 12

6.0 Title Insurance Coverage & Regulations..........................................................................................Strips – 14

Exhibit 1: Boundary Line Agreement.............................................................................................................Strips – 16

Exhibit 2: P-2 Amendment of Exception to Area and Boundaries .................................................................Strips – 17

Exhibit 3: P-39.a: Encroachments ..................................................................................................................Strips – 19

Exhibit 4: Planned Unit Development Endorsement ......................................................................................Strips – 20

Exhibit 5: Access Endorsement (T-23)...........................................................................................................Strips – 25

Exhibit 6: Contiguity Endorsement (T-25) .....................................................................................................Strips – 26

By James L. Gosdin, Copyright reserved STRIPS AND GORES, APPURTENANCES, AND MOTHER HUBBARD CLAUSES

STRIPS AND GORES, APPURTENANCES, AND MOTHER HUBBARD CLAUSES 1.0 STRIPS AND GORES 1.1 The General Rule:: “It is well known that separate ownership of long narrow strips of land, distinct from the land adjoining on each side, is a fruitful source of litigation and dispute. To avoid this source of contention, it is presumed that a grantor has no intention of reserving a fee in a narrow strip of land adjoining the land conveyed when it ceases to be of use to him, unless such fee is clearly reserved. The reason for the rule is obvious. Where it appears that a grantor has conveyed all land owned by him adjoining a narrow strip of land that has ceased to be of any benefit or importance to him, the presumption is that the grantor intended to include such strip in such conveyance; unless it clearly appears in the deed, by plain and specific language, that the grantor intended to reserve the strip.”1 While a “strip” may appear in virtually any shape, a “gore” consists of a “small triangular piece of land.”2

1.2. Highways, Streets, and Rights-of-Way as Boundaries: One key question relating to roadways as boundaries is whether the adjoining owner owns the land underneath the roadway in fee, subject to the easement for the roadway, or whether a predecessor or third party owns the land under the roadway. As a general rule, the owner of land adjoining a street or highway owns the land to the center of the road. A conveyance of land adjoining a street or highway by a nongovernmental person is presumed to convey the fee to the center of the street, whether the street is a private or public road. This presumption does not apply if an owner does not own to the center of the adjoining road. Public policy discourages separate ownership of narrow strips of land; the strips and gores doctrine reflects this policy. The presumption that the boundary line is the center of the road applies if the property adjoins an alley.3 The presumption will not apply if the easement was previously terminated and the conveyed tract is smaller and less valuable that the strip in issue.4 This presumption applies if the right-of-way is public or private, if a governmental entity had released its rights to the right-of-way prior to the execution of the conveyance, or if the right-of-way is not specifically mentioned in the conveyance. The presumption applies if the land is prescribed by metes and bounds, even if the calls do not extend to the center of the highway.5 The doctrine of strips and gores will not apply if the adjoining road was not a dedicated road, but was simply the private road of the adjoining owner and predecessor; the adjoining road was proposed to be dedicated but never was so dedicated.6 It has been said that the doctrine may not apply if the strip is a railroad right of way and as opposed to a public road, and the grantor owns on both sides of the railroad.7 However, this supposed rule apparently has been disavowed by the Supreme Court.8 Prior case law indicated that the presumption that the grantor intended to convey title to the center of a highway or railroad easement did not apply if the grantor owned land adjoining both sides of the strip.9 Presumably, the second conveyance of the remaining land would then convey all of the fee underlying the easement. However, it appears that the reasoning of the Reagan case should prevail, so that fee to the center of the highway or railroad easement is conveyed by the first conveyance of adjoining land if the grantor owns on both sides of the easement.10

1 Cantley v. Gulf Production Co., 143 S.W.2d 912 (Tex. 1940) 2 Vance v. Jackson, 233 Ga. App. 480, 504 S.E.2d 529 (1998) 3 Rio Bravo Oil Co. v. Weed, 121 Tex. 427, 50 S. W. 2d 1080 (1932); Pebsworth v. Behringer, 551 S. W. 2d 501 (Tex. Civ. App.–Waco

1977, no writ); Weiss v. Goodhue, 46 Tex. Civ. App. 142, 102 S. W. 793 (1907, writ ref’d) 4 Angelo v. Biscamp, 441 S. W. 2d 524 (Tex. 1969) 5 See Cox v. Campbell, 135 Tex. 428, 143 S. W. 2d 361 (1940) (the Court held that even though the field notes describing the land stopped at

the side of the railroad right-of-way, the presumption was not overcome where there was a lack of contrary intention expressed in plain and unequivocal terms.); Texas Bitulithic Co. v. Warwick, 293 S. W. 160 (Tex. Comm’n App. 1927) (if property is described by lot and block number only, the boundary line is the center of the adjoining road; a deed that conveys by specific field notes land abutting a highway or railroad right-of-way conveys title to the center of the right-of-way); Shadowood Lake Club, Inc. v. King; 1994 Tex. App. LEXIS 2243 (Tex. App.–Texarkana Apr. 19, 1994, no writ, Case No. 06-93-00106-CV), vacated, 1994 Tex. App. LEXIS 4126 (1994); Reagan v. Marathon Oil Co., 50 S. W. 3d 70 (Tex App. - - Waco 2001, no pet.)(even though other portions of legal descriptions expressly extend the property conveyed to the center of other roads; to rebut the presumption of conveyance; the conveyance must contain an express reservation)

6 Camillatwin Harbor Volunteer Fire Dept., Inc. v. Plemmons, 998 S. W. 2d 413 (Tex. App. – Beaumont 1999, pet. denied). 7 Couch v. Texas & P. Ry. Co., 90 S.W. 860 (Tex. 1906) 8 Reagan v. Marathon Oil Co., 50 S.W. 3d 70 (Tex. App - - Waco 2001, no pet.) 9 Krenek v. Texstar North America, 787 S.W. 2d 566 (Tex. App. - - Corpus Christi 1990, wrt denied); Cox v. Campbell, 135 Tex. 428, 143

S.W. 2d 361 (1940); Rio Bravo Oil Co. v. Weed, 121 Tex. 427, 50 S.W. 2d 1080 (1932); Couch v. Texas & Pacific Railway Co., 99 Tex. 464, 90 S.W. 860 (1906)

10 Reagan v. Marathon Oil Co., 50 S.W. 3d 70 (Tex. App. - - Waco 2001, no pet.)

Strips and Gores, Appurtenances and Mother Hubbard Clauses Strips-1 Revised 11/2004


1.3 Conveyancing Language : In Cantley v. Gulf Production Co.,11 the Court concluded that the road had originally been located along the margin of the grantor’s tract and was located wholly within the grantor’s property. When the grantor afterward conveyed the land, the fee to the whole of the soil underneath the roadway vested in the grantee. A conveyance of a lot abutting a street, alley, or other right-of-way by lot conveys to the center of the street, alley, or right-of-way unless otherwise provided.12

If a road adjoins a tract and the owner conveys the tract adjoining the road, then the grantee is vested with the fee in the road.13

If the conveyance refers to a public easement such as a road, and excepts to the road, then the deed with exception may be construed to convey the road fee subject to a limitation on the warranty.14

A note in the subdivision plat dedication that the grantor has reserved all of the oil, gas, and other minerals under the streets shown on the plat will not be sufficient to reserve the minerals pursuant to a Deed of an adjoining lot; that Deed is construed to convey the fee to the middle of the street. The grantees were held to receive the mineral fee and one-half of the adjacent street since there was no express reservation in the Deed. The intent of the dedication seemed to be that the minerals would not be deemed to be dedicated to the public or conveyed to the public by the dedication.15

A conveyance of a tract of land adjoining a street, public highway, or railroad right-of-way will be deemed to convey to the middle of the easement even though the description of the tract is by field notes going to the edge of the right-of-way and even though the field notes do not specifically refer to the right-of-way.16 Likewise a conveyance with phrases such as “save and except” or “not including the road” will not be construed as an express reservation, and title will pass.17

1.4 Rebutting the Presumption: The presumption that a conveyance adjoining a road conveys land to the center of the road is a rule of construction and is a presumption that is rebuttable. If the intention to exclude the road from the conveyance is plain, clear, explicit, and unequivocal or if the deed expressly declares its intent not to convey the strip, the intent to exclude the highway will be enforced. If the language is doubtful, the deed will convey the land to the center of the road.18

1.5 Governmental Conveyances Adjoining Highways: There are differing cases as to whether a conveyance by a sovereign or governmental entity will be deemed to convey strips or gores adjoining such tract. “The general rule is that a grant by the state of lands bordering upon a street or highway, which contains no express reservation, is to be construed in the same manner as grants between individuals.”19 However, the case of Schutze v. Dabney20 held that the rule of strips and gores would not apply to a conveyance by the government, state, or municipality of property adjoining a highway in the absence of an explicit statement otherwise.21 Strips and gores also does not apply to land held by the state in public trust (such as bays, harbors, shores).22

1.6 Natural Water Courses: A natural watercourse exists if a permanent source sends a current of water down a channel, including a bed and banks. 23 Marshes, ravines, and swamps are not natural water courses; brooks, creeks, rivers, and streams are. To determine whether title to the bed of a water course is vested in the adjoining owner or the state generally depends on whether the water course is navigable or non-navigable.

11 Cantley v. Gulf Production Co., 135 Tex. 339, 143 S. W. 2d 912 (1940) 12 Manziel v. Railroad Commission, 197 S. W. 2d 490 (Tex. Civ. App.–Austin 1946, writ ref’d) 13 State v. Arnim, 173 S. W. 2d 503 (Tex. Civ. App.–San Antonio 1943, writ ref’d w.o.m.) 14 Stroud v. Hunt Oil Co., 147 S. W. 2d 564 (Tex. Civ. App.–Eastland 1941, no writ) 15 Lackner v. Bybee, 159 S. W. 2d 215 (Tex. Civ. App.–Galveston 1942, writ ref’d w.o.m.) 16 Goldsmith v. Humble Oil & Refining Co., 145 Tex. 549, 199 S. W. 2d 773 (1947); Cantley v. Gulf Production Co., 135 Tex. 339, 143 S. W.

2d 912 (1940); Cox v. Campbell, 135 Tex. 428, 143 S. W. 2d 361 (1940); State v. Williams, 161 Tex. 1, 335 S. W. 2d 834 (1960); Texas Botulithic v. Warwick, 293 S. W. 160 (Texas Comm. App. 1927)

17 Regan v. Marathon Oil Co., 50 S.W. 3d 70 (Tex. App - - Waco 2001, no pet.) 18 Moore v. Energy States, Inc., 71 S.W.3d 796 (Tex. App.—Eastland 2002, pet. denied) 19 Joslin v. State, 146 S. W. 2d 208, 211 (Tex. Civ. App.–Austin 1940, writ ref’d) (disagreeing with the Schutze case and recognizing the rule

of strips and gores in connection with a railroad right-of-way adjoining the State grant of patent). 20 Schutze v. Dabney, 204 S. W. 342 (Tex. Civ. App.–Austin 1918), rvs’d on other grounds, 228 S. W. 176 (Tex. Comm’n App. 1921 judgm’t

adopted) 21 See also Town of Refugio v. Strauch, 29 S. W. 2d 1041 (Tex. Comm’n App. 1930) (no presumption of conveyance to middle of street

where city conveyed lots adjoining a street which it owned under fence); Meyer v. Galveston, H. & S. A. Ry. Co., 50 S. W. 2d 268 (Tex. Comm’n App. 1932, opinion adopted) (no presumption of conveyance where the city conveyed a lot adjoining a street); Guenther v. Thompson, 199 S. W. 2d 710 (Tex. Civ. App.–San Antonio 1947, no writ) (where the city subdivided tracts and sold lots abutting a street there was no presumption of conveyance of the fee in the streets)

22 Texas v. Harbor Navigation District, 831 S. W. 2d 539 (Tex. App.–Corpus Christi 1992, writ denied) 23 Hoefs v. Short, 114 Tex. 501, 273 S. W. 785 (1925)



1.7 Navigable Water Courses: A water course is navigable if it is navigable in fact or in law. Most water courses are not navigable in fact. Water courses are navigable in fact when they are capable of being used in the customary modes of trade or travel on water. If not continuously navigable, a water course must be capable of floatage to be navigable in fact. Under the civil law of Spain and Mexico, when a grant of land was made upon a watercourse, the Government reserved the title to the beds of all perennial streams, even though the stream was not navigable in fact and even though the stream was less than 30 feet in width24 By the terms of a statute enacted on December 14, 1837, the rule of the civil law was modified and the State reserved the title to beds of streams only when the stream was navigable in fact or when the bed of the stream was more than 30 feet wide. As to grants made by the Republic of Texas prior to December 14, 1837, the Republic reserved the title to the beds of all perennial streams. As to all grants made by the Republic of Texas and State of Texas after December 14, 1837, the State reserved the title to the beds of all streams navigable in fact and also the title to the beds of all streams where the bed was more than 30 feet wide.25

The state has reserved title to the beds of all water courses that are navigable in fact at the time of the patent from December 14, 1837.26 Prior to December 14, 1837 the Republic of Texas, consistent with the civil law of Spain and Mexico, had reserved title to the beds of perennial streams. Any water course with an average width of 30 feet from the mouth up was defined as navigable in law; survey lines were forbidden to cross such courses. The title of the State to the bed of the stream, where the title remained in the State at the time of the grant, is a determinable fee. When a stream abandons its old bed and acquires a new one, the State loses title to the old bed which passes to the riparian owners and the State at the same time acquires title to the new bed. This rule applies to grants made under the civil law prior to the act of 1837, as well as to all grants made after the act of 1837.27

If the river occupies both the old channel and the new, then the State has title to the beds of both channels. But the land between the old bed and the new bed still belongs to the prior owner. The riparian owners’ boundaries remain along the banks of the old channel.28

If a river or stream is not navigable at the time of the patent, the owner of the soil does not lose title to the bed if the river or stream later becomes navigable; however, the public can then fish or navigate on the waters.29

A stream width is the distance between the fast land banks; it includes the entire bed, whether the full bed has water flowing over the entire width or not.30 If the water course is navigable in fact or in law, the boundary of the riparian land is the watershed inner banks at the mean level, midway between the line made by the flowing water as it reaches the cut bank and the top of the cut bank.31

Gradient boundary methodology involves two factors: (1) location of the “key bank” and (2) the gradient, or rate of fall, of the water. The gradient boundary of a navigable stream is “the water-washed and relatively permanent elevation or acclivity at the outer line of the river bed which separates the bed from the adjacent upland, whether valley or hill, and serves to confine the water within the bed.” The bank is typically an accretion bank and seldom an erosion or cut bank. This boundary is on the bank at the average or mean level attained by the water when it reaches and washes the bank without overflowing.32 Artificial accretion caused by a dam will result in a change in the gradient boundary of a river, so long as the upland (riparian) owner did not cause or contribute to the artificial influence.33 The apparent U.S. majority view is that if accretions to one tract extend laterally in front of the adjoining tract without being contiguous to that tract, the owner of the noncontiguous tract in front of the accretion will acquire title.34 In one exception, the land bordered the Colorado River which was, by statute, a navigable stream.35 The court held that ownership extended to the middle of the stream because the facts proved that the channel was human made. Consequently, the land was submerged land even though the new channel was navigable and a part of the river. 24 State v. Grubstake Investment Ass’n, 117 Tex. 53, 297 S.W. 202 (1927); Heard v. Town of Refugio, 129 Tex. 349, 103 S. W. 2d 728 (1937)

(but the State may have subsequently parted with its title under either Art. 7467a or Art. 5414a) 25 Manry v. Robinson, 122 Tex. 213, 56 S. W. 2d 438 (1932); Luttes v. State, 159 Tex. 500, 324 S. W. 2d 167 (1958) (but the State may have

subsequently parted with its title under either Art. 7467a or Art. 5414a) 26 Tex. Nat. Res. Code Section 21.001(3), 21.012, and 21.013 (enacted December 14, 1837) 27 Manry v. Robinson, 122 Tex. 213, 56 S. W. 2d 438 (1932) 28 Maufrais v. State, 142 Tex. 559, 180 S. W. 2d 144 (1944) 29 Port Acres Sportsman’s Club v. Mann, 541 S. W. 2d 847 (Tex. Civ. App.–Beaumont 1976, writ ref’d n.r.e.) 30 Motl v. Boyd, 116 Tex. 82, 286 S. W. 458 (1926) 31 Diversion Lake Club v. Heath, 126 Tex. 129, 86 S. W. 2d 441 (1935) 32 Branard v. State, 12 S. W. 3d 6 (Tex. 1999) 33 Brainard v. State, 12 S.W.3d 6 (Tex. 1999); State v. Riemer, 94 S.W.3d 103 (Tex. App.—Amarillo 2002, no pet.) 34 61 A.L.R.3d 1173 35 Selkirk Island Corp. v. Standley, 683 S. W. 2d 793 (Tex. Civ. App.–Corpus Christi 1984, writ ref’d n. r. e.)



Submergence of land not tidally affected does not cause title to be lost since there is no erosion. A different result might occur if the public or governmental body uses the site for navigation.36

The Small Bill (former Tex. Rev. Civ. Stat. art. 5414a), passed in 1929, confirmed and validated all patents to and awards of land lying across or partly across watercourses or navigable streams, and all patents and awards covering or including the beds of abandoned beds of watercourses or navigable streams or parts thereof37. The act relinquishes to the patentees and awardees and their assignees title to all or part of the bed of the streams lying within the boundaries of the patent or award, where the patents or awards had been outstanding for at least ten years at the date of the act, to the extent necessary to make up any deficiency in acreage in the original grant, but no more.38 The State reserved its rights to the sand and gravel in the river bed. Rights of the public and the State in the waters of the stream, and rights of riparian owners are not affected by the act. The act does not apply where the patent merely touches the stream, but did not cross it. The act applies to Spanish and Mexican land grants which have been recognized as valid. In 1925, the Legislature passed an act (Art. 7467a) granting to all incorporated cities that had a population of 40,000 or more, according to the 1920 census, all of the State's title to beds and channels of rivers and streams that were then or may later be within the corporate limits of the city. If the bed was within the corporate limits of a city of over 40,000 inhabitants in 1920, the city acquired title thereto in 1925, and the Small Bill (passed later) had no application, even though there was shortage in the original grant. In all counties having a population of more than 350,000 according to the 1940 census, the adjacent landowners were allowed (under Art. 7467-b) purchase the rights of the State to the beds and channels of rivers and streams which are abandoned by reason of the construction of new channels under an approved plan of reclamation. Each landowner had the right to purchase to the middle of the abandoned bed. The claimant was required to secure a patent thereto. 1.8 Non-Navigable Water: Under the civil law of Spain and Mexico, when a grant of land was made upon a watercourse, the Government reserved the title to the beds of all perennial streams, even though the stream was not navigable in fact and even though the stream was less than 30 feet in width39 Prior to December 14, 1837, the state reserved title to the bed of a water course in determinable fee. The rules of boundaries for navigable water courses apply. Since 1837, the adjoining property owner has its boundary at the center of the water course.40 If the water course changes by gradual and imperceptible means, the boundary will follow the center of the water course.41 If the non-navigable water course changes suddenly and leaves its old banks to form new ones, the boundary remains in the middle of the prior channel, even though no water flows through it.42 A sudden change in the course of a navigable river will result in a change of ownership of the old and new beds.43

All grants are subject to the same rule on abandonment of the bed of rivers: where the river changes it course or touches land not previously adjacent to it, the newly washed land becomes riparian and the owner of land adjacent to the abandoned bed becomes the owner of the bed.44

A grant of land, contiguous to a non-navigable stream, is presumed to pass title to the center of the stream (unless expressly reserved).45 This presumption applies even if the land is described by metes and bounds without mentioning the stream or if the description refers to marked corners on the bank and the lines between corners do not correspond with the center of the stream.46

1.9. Rule of Meanders: If a call is for the bank, the place where the description goes is not a corner but is the place where the projected line enters the stream. It is irrelevant whether the call is at the edge of the water or at a convenient distance back from that line. This rule applies because a surveyor cannot go into the stream to make a corner. The meander defines the sinuosities of the body of water and not the boundary.47 “When a meander line is used, however, the natural object or monument (e.g. a river, the seashore, or an identifiable terrain feature) will control over the specific calls for course and distance . . . . where the natural object is clearly referred to in the

36 Coastal Industrial Water Auth. v. York, 532 S. W. 2d 949 (Tex. 1976) 37 State v. Bradford, 121 Tex. 515, 50 S. W. 2d 1065 (1932); see also former Tex. Rev. Civ. Stat. Art. 5414a-1 (validating deeds of

acquittance) 38 State v. Heard, 199 S. W. 2d 191 (Tex. Civ. App. 1946), aff’d 146 Tex. 139, 204 S. W. 2d 344 (1947) 39 State v. Grubstake Investment Ass’n, 117 Tex. 53, 297 S.W. 202 (1927); Heard v. Town of Refugio, 129 Tex. 349, 103 S. W. 2d 728 (1937)

(but the State may have subsequently parted with its title under either Art. 7467a or Art. 5414a) 40 City of Victoria v. Schott, 9 Tex. Civ. App. 332, 29 S. W. 681 (1895, no writ) 41 Tyler v. Gonzalez, 189 S. W. 2d 519 (Tex. Civ. App.–San Antonio 1945, writ ref’d w. o. m.) 42 Siddal v. Hudson, 206 S. W. 381 (Tex. Civ. App.–Galveston 1918, writ dism’d) 43 Coastal Industrial Water Authority v. York, 532 S. W. 2d 949 (Tex. 1976) 44 Manry v. Robison, 122 Tex. 213, 56 S. W. 2d 438 (1932) 45 Risien v. Brown, 73 Tex. 135, 10 S. W. 661 (1889); McDonald v. Alexander, 388 S. W. 2d 725 (Tex. Civ. App.–Waco 1965, no writ) 46 Muller v. Landa, 31 Tex. 265 (1868); Dutton v. Vierling, 152 S. W. 450 (Tex. Civ. App.–Austin 1912, no writ); Terrill v. Tuckness, 985 S.

W. 2d 97 (Tex. App. – San Antonio 1998, no pet.) (a call down the creek with meanders of bank to a fence corner is construed as conveying the bed)

47 Strayhorn v. Jones, 157 Tex. 136, 300 S. W. 2d 623 (1957)



patent or deed as a boundary of the land conveyed, specific course and distance calls will be construed to be a meander line.48 A meander line is a series of calls which follow the river as closely as possible; if a meander line is used, the river or seashore controls over specific calls for course and distance.49

A meander line, as contrasted with a boundary line, is run for the purpose of defining the sinuosities of the bank of a stream or other body of water, such as a lake, and not for the purpose of running the boundaries of the land. A call to form a contour line (such as 1020 feet above mean sea level) is not a meander line, but is a boundary line. Where the land is bounded by the contour line intended to establish the limits of a lake is not ambiguous to the body of water, an implied easement of necessity may be implied for the use and enjoyment of the lane below the contour line.50

1.10. Tidal Water: Under the common law, a grant of land adjoined by a bay in which the tide ebbs and flows does not convey the land between the ordinary high and low water marks.51 The boundary of the land extends to the line of the ordinary high tide, unless the grant indicates an intention to go beyond that line.52 This boundary is the common law boundary of the sea. The civil law boundary is the mean higher high tide or the highest tide in the winter. The term highest tide does not mean, however, the highest crest of storm-driven water. If the patent was issued after January 20, 1840, then the common law prevails as to the boundary, regardless of when the certificate and return of field notes occurred.53 The line is calculated over the regular tidal cycle of 18.6 years.54

1.11 Governmental Conveyance Adjoining Water Course: A conveyance by the sovereign of land bordering a stream conveys only to the water lines.55 Strips and gores does not apply to land held by the state in public trust (such as bays, harbors, shores).56

1.12 Lakes: In Texas, the call for a margin, edge of water, high or low water mark, shore, or bank of a lake excludes the bed of a lake because of the difficulty of partitioning a lake.57 Where a lake is non-navigable, its bed is susceptible to private ownership. A lake is not considered navigable unless it is navigable in fact - that is, it is used or capable of being used as a highway for commerce, over which trade and travel may be conducted in the customary modes of trade and travel on water.58 The owner has the right to control that part of the surface of the lake above his land, including the right to fish in or boat upon the water.59 If the lake is caused by the backing up of the waters of a stream by the erection of a dam across the stream, the owner of the land beneath the lake cannot prevent the public from fishing thereon, because the waters remain public waters even though they overflow private lands. But the public has no right to go upon the banks of the lake.60 If the field notes of the patent come only to the edge of the lake, even though it is non-navigable, then the patentee takes title only to the water's edge, and acquires no title to the bed of the lake.61 A call in a deed or patent for the margin of the lake, edge of the water, or shore or bank of the lake, excludes the bed thereof, and the grantee acquires no title to the bed.62 The boundary remains at the water's edge, and where the water recedes gradually, the boundaries still extend to the water's edge.63 However, where the conveyances were for platted lots having fixed dimensions and did not refer to the lake's shoreline as a boundary, it was held that the doctrine of reliction did not apply and the title of the lot owners did not follow the receding shoreline of the lakeside.64 Furthermore, the doctrine of reliction does not apply where the fill is artificial rather than natural.65 However, purchasers of lots adjoining a lake reflected on the plat may have easements for use.66 Riparian rights attach to all natural lakes and ponds;67 as to a non- 48 Texas v. Brazos River Harbor Navigation District, 831 S. W. 2d 539, 542, 543 (Tex. App. --Corpus Christi 1992, writ denied) 49 Ely v. Briley, 959 S. W. 2d 723 (Tex. App. – Austin 1998, no writ) 50 Ulbrecht v. Fr. Fried Sam Friedson, 159 Tex. 607, 325 S. W. 2d669 (1959); Brown v. Haley, 233 VA. 210, 355 S.E. 2d563 (1987) 51 Galveston v. Menard, 23 Tex. 349 (1859); Galveston City Surf Bathing Code v. Heidenheimer, 63 Tex. 559 (1885) 52 DeMerit v. Robison, 102 Tex. 358, 116 S. W. 796 (1909). 53 Rudder v Ponder, 156 Tex. 185, 293 S. W. 2d 736 (1956) 54 Luttes v. State, 159 Tex. 500, 324 S. W. 2d 167 (1958) 55 Strayhorn v. Jones, 157 Tex. 136, 300 S. W. 2d 623 (1957) 56 Texas v. Harbor Navigation District, 831 S. W. 2d 539 (Tex. App.–Corpus Christi 1992, writ denied) 57 Ulbricht v. Friedsam, 159 Tex. 607, 325 S. W. 2d 669 (1959) (The parties were dealing with a tract of land contiguous to an artificial lake.

The legal description called one boundary as a contour line at a designated elevation, such contour line being on the water edge dividing the lake and the dry uplands. The court held that the document did not convey any land below the contour line, as there was nothing expressed in the deed to show an intention to convey title beyond that contour line.)

58 Taylor Fishing Club v. Hammett, 88 S. W. 2d 127 (Tex. Civ. App. 1935, writ dism’d w.o.j.); But see Welder v. State, 196 S.W. 868 (Tex. Civ. App. 1917, writ ref’d)

59 Taylor Fishing Club v. Hammett, 88 S. W. 2d 127 (Tex. Civ. App. 1935, writ dism’d w.o.j.) 60 Diversion Lake Club v. Heath, 126 Tex. 129, 86 S. W. 2d 441 (1935) 61 Welder v. State, 196 S.W. 868 (Tex. Civ. App. 1917, writ ref’d) 62 Welder v. State, 196 S.W. 868 (Tex. Civ. App. 1917, writ ref’d); Ulbright v. Friedsam, 159 Tex. 607, 325 S. W. 2d 669 (1959) 63 Chew v. DeWare, 207 S.W. 988 (Tex. Civ. App. 1918, writ dism’d w.o.j.) 64 Fudge v. Hogge, 323 S. W. 2d 663 (Tex. Civ. App.–Dallas 1959, no writ) 65 Fudge v. Hogge, 323 S. W. 2d 663 (Tex. Civ. App.–Dallas 1959, no writ) 66 Anderson v. McRae, 495 S. W. 2d 351 (Tex. Civ. App.–Texarkana 1973, no writ) 67 Humphreys-Mexia Oil Co. v. Arseneaux, 116 Tex. 603, 297 S.W. 225 (1927)



navigable lake, the owner of a specific portion of the bed has the exclusive right to hunt and fish upon the waters above.68 1.13 Ownership of Bed: The owner of the bed of the stream or tidewater bay becomes the owner of any island that forms therein as soon as it appears.69 If the State had title to the bed of the stream or tidewater bay, it would then own the islands formed in it.70 But, if an island is formed by a sudden or avulsive change in the course of the stream in that it cuts a new channel and the river flows in both the new channel and the old channel, the State does not acquire title to the island, but title remains in the former owner.71

Where the bed of the stream is not owned by the State (and consequently riparian owners own to the center of the stream) the island formed in the bed of the stream belongs to the owner of that part of the bed of the stream upon which it rests. If the center line of the stream, intersects the island, each riparian owner is entitled to the part upon that owner's side of the line. The line is determined by ascertaining the middle thread of the stream as it was just before the formation of the island.72

If an entire tract of land is washed away by erosion, the owner loses title entirely, even though the land may later reappear73. If the waters of a stream are diverted to a new channel, and the old channel filled, the State does not lose title to the old channel.74

1.14 Apportionment of Accretion: The owner of riparian land gains ownership of land that accretes to his or her property. The doctrine of accretion applies to severed mineral interests.75 Each riparian owner gets a proportionate part of the new shoreline based on the length of the new shoreline as compared to the length of the old shoreline. If the old shoreline before the formation of accretions measured 200 feet in length, with A owning 150 feet and B owning 50 feet, and if the new shoreline measured 300 feet, A would take 3/4 of the new shoreline or 225 feet, and B would take 1/4, or 75 feet.76 The apparent U.S. majority view is that if accretions to one tract extend laterally in front of the adjoining tract without being contiguous to that tract, the owner of the noncontiguous tract in front of the accretion will acquire title.77 If the land is not originally riparian but subsequently becomes so due to a change in the course of the river, it becomes entitled to accretions.78 If a tract of land which is riparian erodes away completely, by a gradual process, the owner loses title completely, and the land which may later re-appear as the river changes its course again is considered as accretion to the land which became riparian by the process of erosion.79 This is not true if the change is avulsive. A party asserting that a water course is not a true boundary because of sudden shift assumes the burden of proof.80

1.15 Other Strips and Gores if No Easement: The doctrine of strips and gores may apply even though the adjoining small strip is not subject to an easement. “We do not think it affects the rule, so far as the title to the strip is concerned, if the road was never used or if it was abandoned.”81 The strips and gores doctrine applied to a 12.21-acre tract within a 12,884-acre tract where there was no fence separating it; the strip was used as part of the ranch and had very little value by itself. There was no claim by the grantor after the Deed of Trust was foreclosed.82 The doctrine was applicable to a 2.1467-acre tract used for tennis courts, post boxes, and clubhouse parking in connection with a 146.584-acre tract covered by a Deed of Trust. “Under certain circumstances, the courts will construe an instrument so as to include an adjacent small parcel of land in the conveyance of a larger tract. An instrument of conveyance is construed to include a small parcel because it is against public policy to leave title of a small parcel in a grantor conveying a large tract but adjoining or surrounding the small parcel... In order to obtain this construction, the appellees needed to show that the tracts were small in comparison to the land conveyed; that

68 Taylor Fishing Club v. Hammett, 88 S. W. 2d 127 (Tex. Civ. App. 1935, writ dism’d w.o.j.) 69 City of Victoria v. Schott, 9 Tex. Civ. App. 332, 29 S.W. 681 (1895); Webb Materials, Inc. v. Lacey, 364 S. W. 2d 473 (Tex. Civ. App.–San

Antonio 1963, writ ref’d n.r.e.) 70 Luttes v. State, 159 Tex. 500, 334 S. W. 2d 167 (1958); Giles v. Basore, 154 Tex. 366, 278 S. W. 2d 830 (1955) 71 Maufrais v. State, 142 Tex. 559, 180 S. W. 2d 144 (1944) 72 City of Victoria v. Schott, 9 Tex. Civ. App. 332, 29 S.W. 681 (1895) 73 Hancock v. Moore, 135 Tex. 619, 146 S. W. 2d 369 (1941) 74 Ray v. State, 153 S. W. 2d 660 (Tex. Civ. App. 1941, writ ref’d w.o.m.) (See Art. 7467-b as to abandoned channels in counties of 350,000

population or more.) 75 Ely v. Briley, 959 S. W. 2d 723 (Tex. App.−Austin 1998, no writ) 76 Sharp v. Womack, 127 Tex. 357, 93 S. W. 2d 712 (1936) 77 61 A.L.R.3d 1173 78 Manry v. Robinson, 122 Tex. 213, 56 S. W. 2d 438 (1932) 79 Hancock v. Moore, 135 Tex. 619, 146 S. W. 2d 369 (1941); see also former Tex. Rev. Civ. Stat. Art. 5414 (validating deeds of acquittance) 80 Brownlee v. Sexton, 703 S. W. 2d 797 (Tex. App.−Dallas 1986, writ ref’d n.r.e.) 81 Cantley v. Gulf Production Co., 135 Tex. 339, 143 S. W. 2d 912, 916 (1940) 82 Strayhorn v. Jones, 157 Tex. 136, 300 S. W. 2d 623 (1957)



they were adjacent to or surrounded by the land conveyed; that the title to the two tracts were (sic) in the grantor at the time of the conveyance; and that the tracts were of no benefit or importance to the grantor.”83

The doctrine applied to a 12-acre strip in a public highway bounding a 106.88-acre tract.84

The doctrine applied to a narrow adjoining strip (of between 10 and 25 acres) not subject to an easement or right of way, which ceased to be of use; the fee in the narrow strip was not explicitly reserved.85 The strips and gores doctrine did not apply to a lane or alley adjoining the lot in question which was 7.5 varas wide where there was no proof of dedication or the extent of use of such strip.86 The doctrine did not apply to a previously abandoned railroad right-of-way which was 50 feet by 140 feet and adjoining a lot which was 25 feet by 140 feet where the strip no longer was subject to the easement and had commercial value.87

2.0. APPURTENANCES 2.1 Improvements: “The rule is that in absence of a specific reservation in a deed, buildings and other improvements used in connection with realty in such a way as to constitute appurtenances or fixtures, pass as a matter of course by the conveyance which decrees the title to the realty to the grantee.”88 “’Appurtenance’, with reference to realty, has been said to be analogous to ‘improvements’; and it has been defined as something annexed to another thing more worthy; that which belongs to something else; and that which belongs to another thing, but which has not belonged to it immemorially.”89 2.2 Easements Appurtenant: An appurtenant easement is imposed for the benefit of corporeal or real property.90 An easement appurtenant is a right attached to a greater right in land. The easement appurtenant does not exist apart from the land to which it is attached.91 Whether an easement is appurtenant or in gross is determined by an interpretation of the grant or reservation, aided, if necessary by the situation of the property and the surrounding circumstances. An easement appurtenant is conveyed with the land, regardless of whether it is described in the conveyance.92 An easement is never presumed to be in gross if it can fairly be construed to be an appurtenant easement.93 Easements appurtenant involve dominant tenement or estate to which the right belongs and a servient tenement or estate upon which the obligation rests.94 The same parties do not have title to the dominant and servient estates, but there must be unity of title as to the easement and the dominant estate.95 The owner of the dominant estate must be the owner of the right to use the servient estate. The servient estate does not have to be adjacent to the dominant estate. In the case of an easement in gross, there is no dominant estate.96 The courts look with disapproval upon the sale of only part of a right-of-way easement.97 An easement appurtenant passes with title to the dominant estate which it benefits; a separate conveyance is not necessary since the appurtenant easement cannot be separately conveyed.98

83 Aklas v. United Savings Assoc. of Texas, Inc., 672 S. W. 2d 852, 857 (Tex. App.–Corpus Christi 1984, writ ref’d n. r. e.) 84 Krenek v. Texstar North America, Inc., 787 S. W. 2d 566 (Tex. App.–Corpus Christi 1990, writ denied) 85 Moore v. Energy States, 71 S.W.3d 796 (Tex. App.—Eastland 2002, pet. denied) 86 Goldsmith v. Humble Oil & Refining Co., 145 Tex. 549, 199 S. W. 2d 773 (1947) 87 Angelo v. Biscamp, 441 S. W. 2d 524 (Tex. 1969) 88 Milam v. Coleman, 418 S.W.2d 329 (Tex. Civ. App.—Corpus Christi 1967, writ ref’d n.r.e.); Pickrell v. Pickrell, 134 S.W.2d 740 (Tex.

Civ. App.—Amarillo 1939, no writ) 89 Hancox v. Peek, 355 S.W.2d 568 (Tex. Civ. App.—Fort Worth 1962, writ ref’d n.r.e.) 90 F. J. Harrison & Co. v. Boring & Kennard, 44 Tex. 255 (1875) 91 Brown v. Woods, 300 S. W. 2d 364 (Tex. Civ. App.-Waco 1957, no writ); McWhorter v. City of Jacksonville, 694 S. W. 2d 182 (Tex.

App.-Tyler 1985, no writ) 92 Walschshauser v. Hyde, 890 S. W. 2d 171 (Tex. App.-Ft Worth 1994, writ denied) 93 McDaniel v. Calvert, 875 S. W. 2d 482 (Tex. App.-Ft. Worth 1994, no writ); Ginther v. Bammel, 336 S. W. 2d 759 (Tex. Civ. App.-Waco

1960, no writ) 94 West v. Giesen, 242 S. W. 312 (Tex. Civ. App.-Austin 1922, writ ref'd); Brown v. Woods, 300 S. W. 2d 364 (Tex. Civ. App.-Waco 1957,

no writ) 95 Forister v. Coleman, 418 S. W. 2d 550 (Tex. Civ. App.-Austin 1967), writ ref’d n.r.e., 431 S. W. 2d 2 (1968) (court of appeals held an

easement appurtenant by estoppel for a park and according to the 1955 deed language, "water front privileges," an unrestricted right to use all of the property for ingress and egress to creek.) Coleman v. Forister, 497 S. W. 2d 530 (Tex. Civ. App.-Austin 1973) rev'd on other grounds, 514 S. W. 2d 899 (1974), aff'd on remand, 538 S. W. 2d 14 (Tex. Civ. App.-Austin 1976) (Supreme Court stated that an easement appurtenant by estoppel was created however the 1955 deed provided only a reasonable right of ingress and egress to the one foot strips and the sidewalk and no more. Owners are limited to reasonable use of the servitude tract for access and thus owners do not have an unrestricted right to use of all the property)

96 Forister v. Coleman, 418 S. W. 2d 550 (Tex. Civ. App.-Austin 1967), writ ref’d n.r.e., 431 S. W. 2d 2 (1968) 97 Fort Worth & Railway Co. v. Jennings, 76 Tex. 373, 13 S. W. 270 (1890); Southwestern Bell Telephone Co. v. Texas & N. O. R. Co., 125

F. 2d 699 (1942) 98 McWhorter v. City of Jacksonville, 694 S. W. 2d 182 (Tex. App.-Tyler 1985, no writ)



Use of an easement to benefit land other than the dominant estate is an improper overburden of the servient estate.99 Unless the appurtenant easement provides otherwise, the owner of the dominant estate may not use the easement for the benefit of other property owned by that person or by another.100 Unless the easement provides otherwise, the easement is apportionable among the owners of a subdivided dominant estate.101 An easement appurtenant may be assigned to tenants in an apartment complex on the dominant estate.102

2.3 Abutter’s Rights: “The Texas courts have recognized that abutting property owners have certain private rights in existing streets and highways in addition to their right in common with the general public to use them. Generally, the most important of these private rights is the right of access to and from the highway….The right of access has been described as an easement appurtenant to the abutting land, which includes not merely the ability of the abutting landowner to enter and leave his premises by way of the highway, but also the right to have the premises accessible to patrons, clients and customers.”103

2.4 Lines: Water and sewer pipe lines and plants located on the land are appurtenances to land. 104

2.5 Water: Adjudicated water rights are conveyed as part of a deed or deed of trust that does not specifically mention the water rights. A permanent water right is an easement and passes with the title to the land, in the absence of reservation or exception.105

Groundwater percolating beneath the soil is owned by the owner of the surface (whether or not “diffused” or not tributary to a stream). It is presumed that subterranean water is percolating.106 Although Texas (alone among western states) has not generally abandoned the rule of capture of (percolating) groundwater (possession or ownership by control of the surface), more extensive regulation of groundwater by groundwater conservation districts has been implemented, and the rights in such groundwater also should be considered real property interests for purposes of insurance.107 Owners of the land are recognized as owners of groundwater, and the laws relating to groundwater conservation districts shall not be construed as depriving or divesting the owners of ownership or rights, except as those rights are limited or altered by rules promulgated by a district.108 Private real property includes an interest in real property recognized by common law, including a groundwater or surface water right of any kind, that is not owned by the federal government, Texas, or a political subdivision of Texas.109 The ownership of a regular groundwater withdrawal permit may be transferred.110 The Edwards Acquifer Authority Act provides that a permit holder for irrigation may not lease more than 50% of the irrigation rights initially granted. As a result, 50% of the irrigation rights must remain with the land. A deed of the land purporting to reserve all irrigation water rights will be reformed to reserve only 50% of the groundwater irrigation water rights.111 Littoral rights are those rights which appertain to land abutting upon tidal waters. A person who owns land fronting upon the bay or ocean has the right of access to the water, the right to acquire the fee in accretions and alluvion as well as in land exposed by reliction and the right to build a wharf.112

Riparian rights include: • the right to have the waters flow past the lands of the riparian owner free from pollution.113

• the right to access to the water of the stream.114

• the right of alluvion by accretion to soil uncovered by reliction and to succeed to the title of abandoned river beds.115

99 Bruce and Ely, The Law of Easement and Licenses in Land, Section 8:11 100 Bickler v. Bickler, 403 S.W.2d 354 (Tex. 1966) 101 Bruce and Ely, The Law of Easement and Licenses in Land, Sections 9:3, 9:9 ; Restatement of the Law, Property, Section 488 (“In the

absence of clear indications to the contrary, it [the easement] is assumed to be so created as to be divisible. Indications to the contrary may be implicit in the use authorized by the easement. The use may be of such a character that division of it will increase the burden caused by it beyond what can be reasonably be assumed to have been contemplated in its creation.”)

102 Preston Del Norte Villas v. Pepper Mill Apartments Ltd., 579 S.W.2d 267 (Tex. App.—Dallas [5th Dist.] 1978, writ ref’d n.r.e.) 103 State of Texas v. Meyer, 403 S.W.2d 366 (Tex. 1966) 104 Pine v. Gibraltar Savings Assoc., 519 S.W. 2d 239 (Tex. Civ. App. –Houston [1st Dist.] 1974, writ ref’d n.r.e.) 105 Graham v. Kazmich, 876 S. W. 2d 446 (Tex. App.–Corpus Christi 1994, no writ); Edinburg Irr. Co. v. Paschem, 235 S.W. 1088 (Tex. Com.

App. 1922); Tex. Water Code sec. 11.040 106 Denis v. Kickapoo Land Co., 771 S. W. 2d 235 (Tex. Civ. App.–Austin 1989, writ denied) 107 Sipriano v. Great Spring Waters of America, Inc., 1 S.W. 3d 75 (Tex. 1999). 108 Tex. Water Code section 36.002 109 Tex. Gov’t Code section 2007.002(4) 110 31 TAC 711.328 111 Herrmann v. Lindsey, 136 S.W.3d 286 (Tex. App.—San Antonio 2004, no pet.) 112 Gibson v. Carroll, 180 S.W. 630 (Tex. Civ. App. 1915) 113 Bigham Bros. v. Port Arthur Canal and Dock Company, 100 Tex. 192, 97 S.W. 686 (1906); Teel v. Rio Bravo Oil Company, 47 Tex. Civ.

App. 11553, 104 S.W. 420 (1907); Tex. Water Code sec. 11.086 114 State v. R.E. James Gravel Company, 175 S. W. 2d 739 (Tex. Civ. App. 1943), rev’d, 142 Tex. 559, 180 S. W. 2d 144 (1944)



• the right to have the fast banks of a stream preserved so as to maintain the natural course of the stream.116

Riparian rights attach only to the ordinary flow of the stream.117 Riparian rights are vested property rights; they are an interest in land and are considered as appurtenances to the riparian land in the nature of incorporeal hereditaments.118 As a general rule, riparian rights cannot be conveyed to one not owning riparian lands.119 Except for domestic and livestock purposes or rights subsequently acquired by permit, a water right is not recognized in an adjudicated stream or segment of stream unless the right is included in the final court decree.120 The commission then issues a certificate of adjudication and sends the certificate to the county clerk, who records the certificate in a book for that purpose only.121 This subchapter does not apply to underground water.122 The Water Rights Adjudication Act limited rights of riparians to water used between 1963 and 1967; such limit was not an invalid taking.123

2.6 Title Insurance Policy: The title insurance policies contain several provisions clarifying coverage with respect to appurtenances: (a) The title insurance policies insure access (if no exception or exclusion limits coverage), but not a specific access unless an easement or abutter’s right of access is described in Schedule A. The insuring provision in the Owner Policy (T-1) and the Mortgagee Policy (T-2) insures against “Lack of a right of access to and from the land.” Access is defined in Section 1 of the Conditions and Stipulations as “’access’: legal right of access to the land and not the physical condition of access. The coverage provided as to access does not assure the adequacy of access for the use intended.” The Residential Owner Policy (T-1R) provides that “This Policy also covers the following title risk: You do not have any legal right of access to and from the land.” (b) The title insurance policies do not insure rights in appurtenances, other than fixtures and other improvements on the land that constitute real property: Section 1 of the Conditions and Stipulations of the Owner Policy (T-1) and the Mortgagee Policy (T-2) define land in a manner that limits coverage of appurtenances: “’land’: the land described or referred to in Schedule A, and improvements affixed thereto that by law constitute real property. The term ‘land’ does not include any property beyond the lines of the area described or referred to in Schedule A, nor any right, title , interest, estate or easement in abutting streets, roads, avenues, alleys, lanes, ways or waterways, but nothing herein shall modify or limit the extent to which a right of access to and from the land is insured by this policy.” Exclusion 5 of the Residential Owner Policy (T-1R) states that “We do not cover lack of right: a. to any land outside the area specifically described and referred to in Item 3 of Schedule A, b. in streets, alleys, or waterways that touch your land. This exclusion does not limit the access coverage in the Covered Title Risks. Land is defined in Paragraph 1 of the Conditions of the Residential Owner Policy (T-1R) as “Land. The land or condominium unit described in Schedule A and any improvements on the land that are real property.”

3.0 MOTHER HUBBARD CLAUSES 3.1 Sample Mother Hubbard Clauses: A “strips and gores” provision or “Mother Hubbard” clause is a type of catch-all clause intended to convey interests in small, adjoining strips of land. Examples of such clauses include (1) a Mother Hubbard clause (cited in the Legal Form Manual for Real Estate Transactions - 1996 - State Bar of Texas) at § 101.19:5 is as follows: “including, but not limited to, all interest of Grantor, if any, in (a) strips and gores, if any, between the property and any abutting properties, whether owned or claimed by deed, limitations, or otherwise, and whether located inside or outside the property and (b) any land lying in or under the bed of any creek, stream, or waterway or any highway, avenue, street, road, alley, easement, or rights-of-way, open or proposed, in on, across, abutting, or adjacent to the property.”; (2) a separate strips and gores clause (cited in the State Bar of Texas Legal Form Manual at Section 9.10:5: “and all strips and gores and appurtenances thereto;” and (3) a broad strips and gores (also cited in the State Bar of Texas Legal From Manual at Clause 9-9-17: “Grantor…grants, sells, and conveys…the strips and gores, if any, between the Property and abutting properties and land lying in or under any public thoroughfare, opened or proposed, abutting or adjacent to the Property, together

115 Motl v. Boyd, 116 Tex. 82, 286 S.W. 458 (1926); Manry v. Robinson, 122 Tex. 213, 56 S. W. 2d 438 (1932) 116 Maufrais v. State, 142 Tex. 559, 180 S. W. 2d 144 (1944) 117 Motl v. Boyd, 116 Tex. 82, 286 S.W. 458 (1926) 118 Martin v. Burr, 111 Tex. 57, 228 S.W. 543 (1921); Texas Co. v. Burkett, 117 Tex. 16, 296 S.W. 273 (1927) 119 Richter v. Granite Mfg. Co., 107 Tex. 58, 174 S.W. 284 (1915) 120 Tex. Water Code sec. 11.322 121 Tex. Water Code secs. 11.323, 11.324 122 Tex. Water Code sec. 11.339 123 Adjudication of Water Rights of Upper Guadalupe Segment, 642 S. W. 2d 438 (Tex. 1982)



with all and singular the rights and appurtenances thereto in any way belonging, to have and to hold it to Grantee and Grantees heirs, successors, and assigns forever….” A Mother Hubbard clause could include “all of Grantor’s right, title and interest in (1) any land lying in any bed, river, stream, lake or other body or course of water located on the Property or adjacent thereto, (2) any easement, license, road, access, right of way, or other right appurtenant to or benefiting the Property; (3) any land in the bed of a an existing or proposed street, road, highway, right of way or other easement or right contiguous to the Property; (4) any strips or gores adjoining the Property; (5) any other land adjoining the Property which the Grantor now or hereafter owns, claims or has any rights in and to whether or not described in this Deed and whether or not located in the same Survey, Patent, or Subdivision as the Property; (6) any rents, issues, profits, improvements, water rights, permits, mineral rights or interests, timber, crops or appurtenances on or relating to the Property.” The Deed may provide that warranties do not apply to any transfer pursuant to the Mother Hubbard clause. 3.2. Construction of Mother Hubbard Clauses: A Deed with a Mother Hubbard clause is generally construed only to convey the land particularly described and any strips and small tracts contiguous to or a part of the described land.124

Language such as “it being the intention to include all land owned or claimed by lessor in such survey or surveys” was held to include a 3.736-acre tract triangular in shape and adjacent to the 100-acre tract specifically described, a 2.59-acre tract which was 12 varas wide adjoining a 42-acre tract described in the lease, and a 1.81-acre tract triangular in shape and adjoining the 6-acre tract specifically described.125

In one case where the Deed conveyed one-half of the minerals in the southeast and northwest quarter of the Section, a Mother Hubbard clause stated that the parties intended to include “any and all other land and interest in land owned in or claimed by the Grantor in said survey or surveys.” This Clause was held not to be relevant to convey the interest of the Grantor in the northeast quarter. Because of the ambiguity in the Deed parol evidence was admissible to explain the intent of the Grantor.126

In another case, the Mother Hubbard clause stated that the lease covered all land, if any, contiguous or adjoining the land above-described and owned or claimed by the lessor by limitation, prescription, possession, reversion, or unrecorded instrument. The Deed purported to convey an undivided 49.54 acres in a 68.72-acre tract whereas the party on behalf of whom the Deed was executed actually owned 49.54-acre interests in the 68.72-acre tract and an adjoining 49.34-acre tract. The interest in the adjoining 49.34-acre tract was held not to be included by virtue of the Mother Hubbard clause. The court state “we have found no other case in which this court has applied any other rule or has construed such a clause to convey large bodies of land in addition to that specifically described and surely not to where the clause was held to convey considerable more than that specifically described.”127 Catch-all language can convey only small interests clearly contemplated, and not significant property interests.128

The deletion of a Mother Hubbard clause (which does not explicitly refer to easements) from an instrument does not negate the transfer or creation of implied easements.129

The “Mother Hubbard” clause was a device borrowed from oil and gas law, and was originally designed to include small pockets of land missed by a survey or within a lease. The clause has never been construed to encompass entire independent tracts of land.130

It appears that an instrument containing a Mother Hubbard clause which transfers an interest in adjoining land will be constructive notice as to that interest in Texas; one view adopted elsewhere is that land conveyed by a Mother Hubbard clause and not by specific description will not be constructive notice as to an innocent purchaser.131 A lease has been construed as including one acre adjoining a described five acre tract that was acquired by adverse possession. The Mother Hubbard provision provided “"This lease also covers and includes, in addition to that above described, all land, if any, contiguous or adjacent to or adjoining the land above described and (a) owned or claimed by Lessor by limitation, prescription, possession, reversion, or unrecorded instrument or (b) as to which Lessor has a preference right of acquisition." “Mother Hubbard clauses, also referred to as "cover-all," "catch-all," or "all-inclusive" clauses… originated in oil and gas leases and mineral and royalty deeds so that an interest intended to

124 Smith v. Allison, 157 Tex. 220, 301 S. W. 2d 608 (1956) 125 Sun Oil Co. v. Burns, 125 Tex. 549, 84 S. W. 2d 442 (Tex. Comm’n App. 1935, opinion adopted); Sun Oil Co. v Bennett, 125 Tex. 540, 84

S. W. 2d 447 (Tex. Comm’n App. 1935, opinion adopted); Sun Oil Co. v. Spear, 125 Tex. 530, 84 S. W. 2d 452 (Tex. Comm’n App. 1935, opinion adopted)

126 Smith v. Allison, 157 Tex. 220, 301 S. W. 2d 608 (1956) 127 Jones v. Colle, 727 S. W. 2d 262, 263 (Tex. 1987) (quoting Smith v. Allison, 157 Tex. 220, 301 S. W. 2d 608 (1957)) 128 Green v. J. Hiram Moore, Ltd., 72 S.W. 3d 436 (Tex. App. - - Corpus Christi 2002), pet. granted, 2003 Tex. LEXIS 84 (Tex. 2003) 129 Peacock v. Schroeder, 846 S. W. 2d 905 (Tex. App. – San Antonio 1993, no writ) 130 Midkiff v. Hancock East Tex. Sanitation, Inc., 996 S. W. 2d 414 (Tex. App – Beaumont 1999, no pet.) (See Footnote 1) 131 See Greer v. Hiram J. Moore, Ltd., 72 S.W.3d 436 (Tex. App.-Corpus Christi 2002, pet. granted); See also Luthi v. Evans, 223 Kan. 622,

576 P.2d 1064 (1978) (based upon Kansas Law requiring specific description for constructive notice)



be conveyed would be transferred even if the specific description used in the instrument omitted a particular portion thereof….In addition, public policy discourages the separate ownership of narrow strips of land….Based on the foregoing, when there is excess acreage or a small strip of land adjoining the interest conveyed, but that small strip is not included within the particular description, and a question arises regarding whether the excess or omitted land passes under the instrument, ‘courts have not experienced much difficulty in [finding an] intent [to convey the small strip of land or omitted acreage] as evidenced by the cover-all clauses.’"132

4.0 ESTABLISHING BOUNDARY LINES 4.1 Acquiescence: A boundary line may be established without an express agreement.133 Passage of substantial time with an established fence does not conclusively establish an agreed line, but is evidence of acquiescence.134

Acquiescence will not apply if the line resulted from a mistaken belief that the established line was the true line.135 There must be a dispute, doubt, or uncertainty as to the boundary locations; erection of the fence off of the boundary line is not sufficient.136

If there is no uncertainty of the location of the boundary, the acquiescence doctrine will not be applied.137

4.2 Parol Agreements: An oral agreement establishing the boundary line is not considered to violate the Statute of Frauds since the parties do not undertake to acquire title but simply to determine the location of what they already own (much like an oral partition).138 There does not have to be a dispute of the boundary if there is doubt or uncertainty about the boundary’s true location.139 The parol agreement will be binding, even though the parties are mistaken as to the true location of the line.140 However, if the parties do not know the location of the boundary line but enter a parol agreement establishing the line at a location which they know is not the true boundary, the agreement is void under the statute of frauds.141

The agreement must be definite and unconditional.142

132 Whitehead v. Johnston, 467 So.2d 240 (Ala. 1985) 133 Yates v. Hogstrom, 444 S. W. 2d 851, 853 (Tex. Civ. App.–Houston [14th Dist.] 1969, no writ) (“A line may be established as the true

boundary line of a tract of land by recognition and acquiescence in the line as the true line by all interested parties for a sufficient length of time. The time referred to is a period beyond that required by the statute of limitations for the acquisition of title by adverse possession.”); Lagow v. Glover, 77 Tex. 448, 14 S. W. 141, 143 (1890) (it has also been stated that “if the true boundary line be doubtful or controverted, acquiescence of the parties in or their recognition of a particular line is evidence which should have great weight in determining their boundary, affording, as it does, a strong presumption that the line so recognized is the correct line, which presumption is strengthened by the lapse of time.”)

134 Higgibotham v. Bagley, 346 S. W. 2d 142 (Tex. Civ. App.–Beaumont 1961, writ dism’d) (more than 30 years had passed); Kier v. Fahrenthold, 299 S. W. 2d 744 (Tex. Civ. App.–San Antonio 1957, writ ref’d n.r.e.) (acquiescence by passage of 38 years with fence so located); Anderson v. Atlantic Oil Producing Co., 83 S. W. 2d 418 (Tex. Civ. App.–Texarkana 1935, writ ref’d) (conclusive recognition where a fence for 30 years); Lopez v. Vela, 200 S. W. 1111 (Tex. Civ. App.–San Antonio 1918, no writ) (recognition for 30 years or more was sufficient evidence to establish the line by acquiescence); Bohny v. Petty, 81 Tex. 524, 17 S. W. 80 (1891) (acquiescence after seven to eight years is not conclusive); Floyd v. Rice, 28 Tex. 341 (1866); McCabe v. Moore, 38 S. W. 2d 641 (Tex. Civ. App.–Austin 1931, writ dism’d) (location of fence for more than 25 years creates strong presumption of line); Cervantes v. Ramirez, 414 S. W. 2d 233 (Tex. Civ. App.–San Antonio 1967, no writ) (acquiescence for over 30 years); Foster v. Duval County Ranch Co., 260 S. W. 2d 103 (Tex. Civ. App.–San Antonio 1953, writ ref’d n.r.e.) (unchallenged fence for over 42 years created a strong inference)

135 Taylor v. Benton, 390 S. W. 2d 509 (Tex. Civ. App.–Eastland 1965, no writ) 136 Doria v. Suchowolski, 531 S. W. 2d 360 (Tex. Civ. App.–San Antonio 1975, writ ref’d n.r.e.); see also Gulf Oil Corp. v. Marathon Oil Co.,

137 Tex. 59, 152 S. W. 2d 711 (1941); Kingelin v. Rogers, 259 S. W. 2d 245 (Tex. Civ. App.–Waco 1953, no writ); Davis v. Miers, 308 S. W. 2d 277 (Tex. Civ. App.–Eastland 1957, writ ref’d n.r.e.); McAllister v. Samuels, 857 S. W. 2d 768 (Tex. App.–Houston [14th Dist.] 1994, no writ) (establishment of fence as slight encroachment at agreed location does not establish doubt or dispute so that acquiescence applies.)

137 Garza v. Maddox, 988 S. W. 2d 280 (Tex. App. – Corpus Christi 1999, pet. denied ); Mohnke v. Greenwood, 915 S. W. 2d 585 (Tex. App. – Houston [14th Dist.] 1998, no writ)

138 Lecomte v. Toudouze, 82 Tex. 208, 17 S. W. 1047 (1891); Gulf Oil Corp. v. Marathon Oil Co., 137 Tex. 59, 152 S. W. 2d 711, 714 (1941) (“When there is uncertainty, doubt, or dispute as to where the true division line between the lands of the parties may be, they may fix it by parol agreement, which will be mutually binding upon them, even though they were mistaken as to the true location of the line. This is true whether the mistake be of a matter of fact or of law. The existence of uncertainty, doubt, or dispute is essential to the validity of such agreement. Actual dispute, however, between the parties is not necessary. It is enough that the location of the line has not been definitely established and is doubtful or uncertain. It is generally held that such agreement to be effective and binding must be executed by the parties, that is by the erection of physical monuments on the agreed line or by otherwise marking the line, by actual possession or use to the line or by the improvement or development of the property with reference to the line.”)

139 Hinds v. Parmley, 315 S. W. 2d 159 (Tex. Civ. App.–Beaumont 1958, no writ) 140 Kingelin v. Rogers, 259 S. W. 2d 245 (Tex. Civ. App.–Waco 1953, no writ); Shelor v. Humble Oil & Refining Co., 103 S. W. 2d 207 (Tex.

Civ. App.–Amarillo 1937, writ dism’d) 141 Voigt v. Hunt, 167 S. W. 745 (Tex. Civ. App.–Austin 1914, writ dism’d) 142 McCabe v. Moore, 38 S. W. 2d 641 (Tex. Civ. App.–Austin 1931, writ dism’d); Decker v. Rucker, 202 S. W. 1001 (Tex. Civ. App.–Fort

Worth 1918, writ dism’d)



The agreement must not simply attempt to reproduce the true line.143

The parol agreement must be “executed’ by the parties by (1) erection of monuments on the agreed line, (2) actual use of the line, or (3) improvement of the property with reference to the line.144

A parol boundary agreement may bind the parties and subsequent purchasers.145 If the subsequent purchaser does not have notice of the agreement, then the boundary line agreement is not binding on the purchaser.146 A buyer has notice of improvements executed in accordance with the agreed line and cannot be an innocent purchaser.147

4.3 Ancient Boundaries: “Ancient boundaries may establish lines that cannot be determined in another way.”148 “Ancient boundaries, in the absence of opposing evidence sufficient to establish their location, may be proved by evidence of common reputation.”149

4.4 Boundary Agreements: All owners and landholders must join in to the agreement. A boundary line agreement entered by oil and gas lessees is not binding on the lessors and owners who are not parties to the agreement.150

A party who accepts a deed with recitals of the common boundary line is estoppel to deny the boundary line.151 The agreement may address the removal of fences.152

In tearing down a fence, a person may be liable for trespass of cattle on other land.153

4.5 Party Wall Agreements: A party wall is not required to be equally on both sides of a property line; it may be exclusively or primarily on the land of one of the owners. Each owner has a right to use the party wall and to an easement on the other owner’s land for the wall. The landowners are not joint owners of the party wall: each owns to the property line and the part of the wall on the property of that owner.154

5.0 Vacancies and Excess Acreage 5.1 Determination of Vacancies: Vacant lands are governed by Sections 51.171, et seq. of the Natural

Resource Code. Vacant land is land that does not lie within a prior patent or grant from the sovereign. It is distinguished from excess acreage which exists if a grant of a tract purports to include a stated acreage, but it is later discovered that the grant encompasses a greater quantity of acreage. A vacancy is an area of unsurveyed public school land that is not in conflict with previously granted land, has not been listed on the records of the land office as public

143 Duval County Ranch Company v. Foster, 318 S. W. 2d 25, 30 (Tex. Civ. App.–San Antonio 1958, writ ref’d n.r.e.); . “Where the line is

capable of ascertainment by measurement and survey, and the parties agree upon a line so measured or surveyed, not as a compromise, as to an uncertain boundary, but to reproduce the true line, and they proceed under a mutual mistake that it is a true line, the line established is not binding and the agreement may be invalidated.”

144 Farmer v. Kornfeuhrer, 271 S. W. 2d 501 (Tex. Civ. App.–San Antonio 1954, no writ) (the driving on one stake does not fix a boundary line); Lecomte v. Toudouze, 82 Tex. 208, 17 S. W. 1047 (1891) (completion of fences constitutes execution); Gulf Oil Corp. v. Marathon Oil Co., 137 Tex. 59, 152 S. W. 2d 711 (1941) (drilling of wells based upon agreed line, development of leases and production on such basis constitute execution of the agreement); Shelor v. Humble Oil & Refining Co., 103 S. W. 2d 207 (Tex. Civ. App.–Amarillo 1937, writ dism’d) (execution of agreement by completion of fence, house and well); Ortiz v. Brandes, 321 S. W. 2d 191 (Tex. Civ. App.–El Paso 1959, writ ref’d n.r.e.) (execution had occurred where the party straightened the stakes and leveled the encroaching land and took possession of it); Caswell v. Faulk, 97 S. W. 2d 341 (Tex. Civ. App.–Beaumont 1936, writ ref’d) (where the land was almost impenetrable and not used for grazing and there were no improvements placed on it, there could not be an oral agreement or acquiescence)

145 Gulf Production Co. v. Baton, 108 S. W. 2d 960 (Tex. Civ. App.–Texarkana 1937, writ ref’d); Sammann v. Deitrich, 39 S. W. 2d 647 (Tex. Civ. App.–Amarillo 1931, no writ)

146 McCabe v. Moore, 38 S. W. 2d 641 (Tex. Civ. App.–Austin 1931, writ dism’d); Louisiana St. Lumber Co. v. Dupay, 52 Tex. Civ. App. 46, 113 S. W. 973 (1908, writ denied)

147 Houston v. Sneed, 15 Tex. 307 (1855) 148 Nabours v. Whiteley, 466 S. W. 2d 62, 64 (Tex. Civ. App.–Austin 1971, writ ref’d n.r.e.); (“An axiom in boundary suits is that the footsteps

of the original surveyor must be followed, if ascertainable in locating the line. If, however, there is insufficient evidence to establish the line followed by the original surveyor, then ancient boundaries may be proved by evidence of common reputation.”).

149 Stover v. Gilbert, 112 Tex. 429, 247 S. W. 841, 843 (Tex. Comm’n App. 1923, opinion adopted) 150 Gulf Oil Corp. v. Marathon Oil Co., 137 Tex. 59, 152 S. W. 2d 711 (1941) 151 Roberts v. Chadwick, 158 F. 2d 374 (5th Cir. 1946); United States v. Champion Papers, Inc., 361 F.Supp. 481 (S.D. Tex. 1973) 152 TEX. AGRIC. CODE Section 143.121 (provides that, except as provided in that Section or by mutual consent, a party may not remove a

fence that is a separating or dividing fence in which that person is a joint owner or that is attached to a fence owned or controlled by another person); Section 143.122 (provides that a person owning an interest in a fence attached to a fence owned in whole or part by another is entitled to withdraw his or her fence by six months notice of the intended separation in writing to the other person or that person’s agent, attorney or lessee (unless the agreement provides otherwise). A person who is an owner of a fence wholly on his land may require the owner of the attached fence to disconnect and withdraw the attached fence by giving six months notice in writing (unless otherwise agreed) in accordance with Section 143.123)

153 Adair v. Stallingsu, 165 S. W. 140 (Tex. Civ. App.–Amarillo 1914, writ dism’d); Claunch v. Osborn, 23 S. W. 937 (Tex. Civ. App. 1893, no writ)

154 Fewell v. Kinsella, 144 S.W. 1174 (Tex. Civ. App.—San Antonio 1912, writ ref’d); Landolt v. Falk, 2004 Tex. App. LEXIS 2205 (No. 14-02-01139-CV, Tex. App.—Houston [14th Dist.] 2004, no pet.)



school land, and was not subject to an earlier application or litigation.155 To buy or lease a vacancy a person must file an application with the county surveyor, if any, in the county or with the county clerk if there is no county surveyor. The county surveyor must mark the time of filing of the original and copy and the original must be recorded in a separate book.156 A person may apply for good-faith claimant status at the time the application is filed or no later than 60 days after notice of acceptance is published. The commissioner shall, after expiration of the 60 days after the period prescribed for publication declare whether a person is a good-faith claimant.157 The commissioner may appoint the county surveyor or a licensed state land surveyor to make a survey or may rely on an existing survey of such surveyor and documents evidencing a vacancy.158 The commissioner may; in the commissioner’s discretion, conduct a hearing.159 If the commissioner concludes that the land is not a conflict with land previously titled, awarded, or sold by the state, the commissioner may determine that a vacancy exists. The vacancy determination is a final order and may be appealed. The commissioner is not restricted to a description provided by the surveyor or applicant, and shall adopt the description that best describes the vacancy. If the commissioner determines that the land is not a vacancy, the commissioner shall endorse the file with the finding “not vacant land.” Such finding is a final order and may be appealed.160 A good-faith claimant who has been notified by the Commissioner that a vacancy exists has a preferential right to purchase or lease the vacancy. The right may be exercised within 120 days of the commissioner’s final order and period for an appeal expired. The good-faith claimant may purchase or lease the vacancy at the price set by the board subject to the royalty reservations provided by the board, and in accordance with the law at the date the application is filed.161 A good-faith claimant is a person who occupies or uses or has occupied or used, or whose predecessors occupied or used the land for other than mineral, sulfur and geothermal purposes, and who or whose predecessors enclosed the land or had definite boundaries and possessed it at least 10 years in good faith belief the land was titled, awarded or sold.162 If no good-faith claimant exercise a preferential right within the applicable period, the applicant has a preferential period for the purchase or lease for 30 days after a determination that no good-faith claimant exists, or the expiration of the time for exercising a preferential right. The board shall award an applicant, other than a good-faith claimant, a perpetual non-participating royalty of not less than 1/32 or more than 1/16 of the value of oil, gas, and sulfur, and 1% of the value of all geothermal other minerals produced.163 5.2 Vacancy Cure Provisions: “When sovereign land is sold or disposed of to private persons and a patent is not issued from the state or the republic passing the legal title, the legal title remains with the sovereign entity. The private owner of the land is often unaware that a title without a patent is ineffective and is without legal recourse to acquire the patent because the lands of public domain are now constitutionally dedicated to the Permanent School Fund (PSF). Under the Texas Constitution, the General Land Office and the School Land Board manage and administer PSF, but prior to the 77th Legislature did not have the authority to issue the patent because state law requires them to receive the land's fair market value in full before the patent is issued. House Joint Resolution 52 (amended Section 2A, of Article VII, of the Texas Constitution in 2001 and surrendered) any claim of the State of Texas to interest in certain lands in the A.P. Nance Survey in Bastrop County….House Joint Resolution 52 amends the Texas Constitution to provide that the State of Texas relinquishes and releases any claim of sovereign ownership or title to an interest in and to the lands, excluding the minerals, in certain tracts in the A.P. Nance Survey, Bastrop County. The bill provides that title to the interest in lands, excluding the minerals, is confirmed to the owners of the remaining interests in the lands.” Any funds previously paid related to an outstanding land award or land payment obligation may not be refunded. The General Land Office shall issue a patent to the holder of the record title, but no filing or patent fee may be required, and the patent shall reserve all mineral interest in the state. “The private owner of the land is often unaware that a title without a patent is ineffective and is without legal recourse to acquire the patent because the lands of public domain are now constitutionally dedicated to the Permanent School Fund (PSF). Under the Texas Constitution, the General Land Office and the School Land Board manage and administer PSF, but do not have the authority to issue the patent because current law requires them to receive the land's fair market value in full before the patent is issued. H.J.R. 53, effective January 1, 2002, (added new Section 2B, Article VII, Texas Constitution and authorizes) the legislature, under specified conditions, to provide for the surrender of interest in land belonging to the State of Texas.” Those conditions under which a patent may be issued, excluding mineral rights, are: 155 Tex. Nat. Res. Code Section 51.172 (5) 156 Tex. Nat. Res. Code Section 51.176 157 Tex. Nat. Res. Code Section 51, 178 158 Tex. Nat. Res. Code Section 51.182 159 Tex. Nat. Res. Code Section 51.185 160 Tex. Nat. Res. Code Section 51.186 161 Tex. Nat. Res. Code Section 51.191 162 Tex. Nat. Res. Code Section 51.172 163 Tex. Nat. Res. Code Section 51.192



(1) the land is surveyed, unsold, permanent school fund land according to the records of the General Land Office; (2) the land is not patentable under the law in effect before January 1, 2002; and (3) the person claiming title to the land: (A) holds the land under color of title; (B) holds the land under a chain of title that originated on or before January 1, 1952;

(C) acquired the land without actual knowledge that title to the land was vested in the State of Texas;

(D) has a deed to the land recorded in the appropriate county; and (E) has paid all taxes assessed on the land and any interest and penalties associated with any

period of tax delinquency. This section does not apply to: (1) beach land, submerged or filled land, or islands; or (2) land that has been determined to be state-owned by judicial decree. This section may not be used to: (1) resolve boundary disputes; or (2) change the mineral reservation in an existing patent”

Section 11.084, Natural Resources Code, authorizes the School Land Board, by unanimous vote, to approve a patent or release of the state’s interest in land, excluding mineral rights, if the board finds that the land is unpatented, the land is not patentable under law in effect before January 1, 2002, and the person claiming title to the land complies with the requirements of the constitutional amendment have been met. 5.3 Excess Acreage: If the area patented exceeds the amount provided in the patent, the owner of the land or a portion of the land may pay for the excess acreage in the patent or in the given tract (one half of fair market value, exclusive of increased value due to improvements). If there is an excess, the commissioner shall execute a deed of acquittance covering the land in the name of the original patentee or assigns, subject to mineral reservations applicable to the patent. The transfer inures to the owners in proportion to their holdings. The commissioner has no legal procedure to require that the deed be acquired or that excess acreage be paid for.164

6.0 Title Insurance Coverage and Regulation 6.1 Area and Boundary Coverage and Survey. Article 9.07C, Insurance Code, relates to “area and boundary” coverage. This Article states: “Art. 9.07C. AREA AND BOUNDARY COVERAGE. “(a) In this article, “area and boundary coverage” means title insurance coverage relating to discrepancies, conflicts, or shortages in area or boundary lines, or any encroachments or protrusions, or any overlapping of improvements. “(b) The commissioner may adopt rules allowing a title insurance company to accept an existing real property survey and not require a new survey when providing area and boundary coverage if the title insurance company is willing to accept evidence of an existing real property survey, and an affidavit verifying the existing survey, as prescribed by the commissioner, notwithstanding the age of the survey or the identity of the person for whom the survey was prepared. “(c) A title insurance company may not discriminate in providing area and boundary coverage in connection with residential real property solely because:

(1) the real property is platted or unplatted; or (2) a municipality did not accept a subdivision plat in relation to the real

property before September 1, 1975. “(d) A title insurance company may not require an indemnity from a seller, buyer, borrower, or lender to provide area and boundary coverage.” Amended Procedural Rule P-2 conforms the Procedural Rule to the law and authorizes acceptance of evidence of an existing survey and a real property affidavit. The existing survey may be of any date and may be made for a prior owner. The affidavit is not required to attach a copy of evidence of a survey. The affidavit may be executed even though changes have been made to improvements. Rate Rule R-16 provides that the premium for amendment of the area and boundary exception on the Residential Owner Policy (T-1R) is 5% of the Basic Rate. The charge for amendment on the Owner Policy (T-1) is 15% of the Basic Rate. There is no charge for amendment of the Mortgagee Policy (T-2) or Short Form Mortgagee Policy coverage (T-2R).

164 Tex. Nat. Res. Code sec. 51.246



6.2 Insurance Against Encroachments. Procedural Rule P-39.a authorizes express insurance against encroachments, if the title insurer provides area and boundary coverage. To provide the coverage, the Company must amend its area and boundary exception. To amend the area and boundary exception, the Company must receive a current survey and (on the Owner Policy) must be paid 15 percent of the basic premium for amendment of the area and boundary exception. If the Company’s guidelines are met, the Company then may except to the encroachment and add the following:

“Encroachment of ________ into __________. Company insures the insured against loss, if any, sustained by the insured under the terms of this Policy by reason of a final, nonappealable judgment of a court of competent jurisdiction that orders the removal of this improvement because it encroaches over or into __________. Company agrees to provide defense to the insured in accordance with the terms of this Policy if suit is brought against the insured to require the removal of this improvement because it encroaches as herein stated.”

The title insurer also may provide insurance against removal of encroachments pursuant to the Planned Unit Development Endorsement (T-17), the Restrictions, Encroachments, Minerals (Mortgagee Policy)Endorsement (T-19), and the Restrictions, Encroachments, Minerals Endorsement – Owner Policy (T-19.1). The Planned Unit Development Endorsement to the Mortgagee Policy may be issued on land that is residential real property. It is the same as the ALTA Endorsement 5 and includes insurance against violations of restrictions, removal of encroachments other than fences and boundary walls, and failure of title because of exercise of a right of first refusal. The encroachment coverage is not as generous as the coverage in the T-19 endorsement. The endorsement does not contain some of the coverages provided in the T-19, such as mineral coverage. The Restrictions, Encroachments, Minerals Endorsement (T-19) is the same as the ALTA Endorsement 9. It is issued more frequently than any other endorsement in the United States, with the exception of the Environmental Protection Lien Endorsement. It insures against existing violations of restrictions (other than environmental restrictions), it insures that maintenance liens are subordinate to the lien of the insured mortgage, it insures against encroachments except those stated in Schedule B, it insures against forced removal of encroachments, including those excepted in Schedule B, and it insures against damage to improvements because of mineral development. It is similar to the CLTA 100, the Comprehensive Endorsement. The Restrictions, Encroachments, Minerals Endorsement – Owner Policy (T-19.1) for commercial land is the owner’s equivalent of the T-19 Endorsement. It is the same as the ALTA Endorsement 9.2, which is issued in most states at this time. It is sometimes called the owner’s comprehensive endorsement. It insures against existing violations of restrictions, it insures against encroachments unless excepted in Schedule B, it insures against forced removal of certain encroachments that are excepted in Schedule B, and it insures against damage to existing buildings because of mineral development. 6.3 Access. A title insurer may issue an Access Endorsement (T-23), which insures actual vehicular and pedestrian access. This endorsement, which is available on commercial land, expands the insurance afforded by the insuring provision against “Lack of right of access to and from the land.” This endorsement is similar to the ALTA Endorsement Form 17 (Access and Entry). Unlike the ALTA Endorsement, this endorsement does not insure the right to use existing curb cuts. This endorsement provides more coverage than the existing CLTA (California Land Title Association) Endorsement 103.7, which states “The Company hereby insures the insured against loss or damage which the insured shall sustain by reason of the failure of the land to abut upon a physically open street known as (insert name of street).” 6.4 Contiguity. A title insurer may insure contiguity of two or more insured parcels by a Contiguity Endorsement (T-25). Previously, a title insurer would provide express insurance against strips or gores that prevented tracts from being contiguous. This endorsement is available on commercial transactions, and can be issued if the insured tracts are contiguous. The specific location of the contiguity should be stated; the endorsement should not simply refer to “contiguous” or “adjacent” lines. This endorsement is the same as the ALTA Endorsement 19. The ALTA Endorsement 19.1, designed for insurance that an insured tract is adjacent to a non-insured tract, is not be available in Texas.



EXHIBIT 1

BOUNDARY LINE AGREEMENT

THE STATE OF TEXAS ∋ ∋ KNOW ALL MEN BY THESE PRESENTS: COUNTY OF ∋

1. The Parties to this Boundary Line Agreement are (“First Party”) and (“Second Party”). 2. “First Party” is the owner of the described following land (“Tract 1”): 3. “Second Party” is the owner of the following described land (“Tract 2”): 4. There is doubt, uncertainty or dispute as to the location of the mutual boundary line between the owners of “Tract 1” and “Tract 2” and the owners by this Boundary Line Agreement desire to settle this dispute. 5. NOW, THEREFORE, for and in consideration of Ten ($10.00) Dollars and other good and valuable consideration and the further consideration of settling the dispute, “First Party” and “Second Party” agree that the mutual boundary line between “Tract 1” and “Tract 2” is as follows: 6. “First Party” does hereby grant, sell and convey to “Second Party”, all right, title, and interest in and to all of that portion of “Tract 2” situated on “Second Party’s” side of the mutual boundary line. 7. “Second Party” does hereby grant, sell, and convey to “First Party” all right title, and interest in and to all of that portion of “Tract 1” situated on “First Party’s” side of the mutual boundary line.

[Optional Clauses: Reservations of outstanding mineral or other interests on other tract; agreements for removal of fences and other encroachments; disclaimer of statutory warranties; joinder of lien holders.]

EXECUTED THIS the day of , 19 .

THE STATE OF TEXAS ∋ ∋ COUNTY OF ∋

This instrument was acknowledged before me on this the day of , 19 , by [as of .]

_______________________________________

NOTARY PUBLIC, STATE OF TEXAS PRINTED NAME OF NOTARY ___________________________________ MY COMMISSION EXPIRES: THE STATE OF TEXAS ∋ ∋ COUNTY OF ∋

This instrument was acknowledged before me on this the day of , 19 ,

by [as of .]

_______________________________________ NOTARY PUBLIC, STATE OF TEXAS PRINTED NAME OF NOTARY ___________________________________ MY COMMISSION EXPIRES:



EXHIBIT 2

P-2. Amendment of Exception to Area and Boundaries a. General Instructions In either an Owner or Mortgagee Policy, when the Insured desires to have amended the exception as to area and boundaries, (i.e. Item 2 of Schedule B) to delete all save “shortages in area”, a title insurance company man accept an existing real property survey and not require a new survey when providing area and boundary coverage if the title insurance company is willing to accept evidence of an existing real property survey, and an affidavit verifying the existing survey, notwithstanding the age of the survey or the identity of affidavit verifying the existing survey shall be the Form T-47 Residential Real Property Affidavit. The policy to be issued shall cover the same land as described in the evidence of the existing real property survey. The Company may, if it considers the additional hazard insurable, amend such exception (the Company may waive the requirement of a survey in connection with the issuance of its Mortgagee Policy insuring the lien on a condominium unit), by indicating same in Schedule B of the policy or by endorsement as provided herein upon payment of the premium prescribed in R-16 in the case of an Owner Policy. The survey must be acceptable to the Company. b. Residential Refinance, Affidavit in Lieu of Updated Survey This sub-Section P-2.b. shall apply solely to transactions involving Residential Real Property in connection with a Mortgagee Policy issued on a loan to renew, extend or satisfy a lien already covered by a Mortgagee Policy. On transactions covered by this Sub-Section, the Company shall notify the borrower of the borrower’s right to substitute a qualifying Affidavit in Lieu of an Updated Survey. Such notice shall be given: (i) when the application for title insurance is received; or (ii) when the commitment for title insurance is first issued. On qualifying transactions under this Sub-Section, the exception as to area and boundaries shall be amended to read: “Shortages in area” {subject to any additional exceptions, or express insurance coverage, deemed appropriate by the Company} provided that the following requirements are satisfied:

1) The borrower provides to the Company an original, or legible copy of the survey {hereinafter the “Prior Survey”} performed in connection with: (i) the transaction under which the borrower acquired title to the Residential Real Property; or, (ii) a prior loan transaction by the borrower involving the Residential Real Property. The Prior Survey shall not be dated earlier than 7 years prior to the date of the Mortgagee Policy to be issued or performed for another person, unless the Company is willing to accept evidence of an existing survey in accordance with Sub-section-P-2.a.

2) The borrower has actual knowledge of the physical condition of the Residential Real Property since the date of the Prior Survey.

3) The Mortgagee Policy to be issued in connection with the current refinance transaction will describe under item “5” of Schedule “A: the same land described in the

(i) construction projects such as new structures, additional rooms, garages, swimming pools or deckings;

(ii) changes in the location of boundary fences or boundary walls; (iii) construction projects on immediately adjoining property(ies) which construction

occurred near the boundary of the Residential Real Property. (iv) Conveyance or replattings or easement grants or easement dedications by the

borrower. c. A title insurance company may not discriminate in providing area and boundary coverage in

connection with residential real property solely because: (1) the real property is platted or unplatted; or (2) a municipality did not accept a subdivision plat in relation to the real property before September 1, 1975.

d. A title insurance company may not require an indemnity from a seller, buyer, borrower, or lender to provide area and boundary coverage.

e. If an affidavit is provided to the Company pursuant to this Rule and the affidavit is incorrect, whether due to the negligence or intentional act of the affiant, the area and boundary coverage given pursuant to this Rule shall be unaffected and in full force and effect; provided, however, the exclusions contained in the policy shall not be affected in any way.

Residential Real Property Affidavit

(May be Modified as Appropriate for Commercial Transactions)

Date: GF No.

Name of Affiant(s):



Address if Affiant:

Description of Property:

County: , Texas

Name of Title Company:

Before me, the undersigned notary for the State of , personally appeared Affiant(s) who after by me being sworn, stated:

1. We are the owners of the Property. (or state other basis for knowledge by Affiant(s) of the Property, such as lease, management, neighbor, etc. For example, “Affiant is the manager of the Property for the record title owners.”)

2. We are familiar with the property and the improvements located on the Property. 3. We are closing a transaction requiring title insurance and the proposed insured owner or lender has requested

area and boundary coverage in the title insurance policy(ies) to be issued in this transaction. We understand that the Company may make exceptions to the coverage of the title insurance as Company may deem appropriate. We understand that the owner of the property, if the current transaction is a sale, may request a similar amendment to the area and boundary coverage in the Owner Policy of Title Insurance upon payment of the promulgated premium.

4. To the best of our actual knowledge and belief, since there have been no: a. Construction projects such as new structures, additional buildings, rooms, garages, swimming pools or other

permanent improvements or fixtures; b. Changes in the location of boundary fences or boundary walls; c. Construction project on immediately adjoining property(ies) which encroach on the Property; d. Conveyances, replattings, easement grants and/or easement dedications (such as a utility line) by any party

affecting the Property. Except for the following (if none insert “None” below).

5. We understand that Title Company is relying on the truthfulness of the statements made in this affidavit to provide the area and boundary coverage and upon the evidence of the existing real property survey of the Property. This affidavit is not made for the benefit of any other parties and this affidavit does not constitute a warranty or guarantee of the location of improvements.

6. We understand that we have no liability to Title Company or the title insurance company that will issue the policy(ies) should the information in this Affidavit be incorrect other than information that we personally know to be incorrect and which we do not disclose to the Title Company.

Sworn and subscribed this day of , 20

Notary Public

Form T-47: Residential Real Property Affidavit



EXHIBIT 3

P-39.a Encroachments. If Company amends its Area and Boundary Exception, pursuant to Procedural Rule P-2, it may except, pursuant to Procedural Rule P-5, to those matters shown on the survey that it deems to cause a possible defect in title. The Company may, if it deems the risk insurable as to encroachments, add the following language after the exception:

“Company insures the insured against loss, if any, sustained by the insured under the terms of this Policy by reason of a final, non-appealable judgment of a court of competent jurisdiction that orders the removal of this improvement because it encroaches over or into _____________________________. Company agrees to provide defense to the insured in accordance with the terms of this Policy if suit is brought against the insured to require the removal of this improvement because it encroaches as herein stated.”

P-39.b Possible Defects. If Company determines that a title matter may cause a possible defect in title, it may except, pursuant to Procedural Rule P-5, to the matter in Schedule B, and, if it determines that the risk is insurable, it may add the following language after the exception:

“Company insures the Insured against loss, if any, sustained by the insured under the terms of this Policy by reason of a final, non-appealable judgment of a court of competent jurisdiction that divests the Insured of its interest as Insured because of this right, claim, or interest. Company agrees to provide defense to the Insured in accordance with the terms of this Policy if suit is brought against the Insured to divest the Insured of its interests as Insured because of this right, claim, or interest.” or

“Company insures the Insured against loss, if any, sustained by the insured under the terms of this Policy by reason of the enforcement of said rights as to the land. Company agrees to provide defense to the Insured in accordance with the terms of this Policy if suit is brought against the Insured to enforce said rights as to the land.”

P-39.c Liens

1. If Company intends to provide insurance against an enforceable lien, it shall comply with P-11. If Company then determines to issue without exception to a lien pursuant to P-11b(1), (4), (5), (6), (7), it may show the lien in Schedule B of the Policy and then may state:

“Exception No. ____________ is hereby deleted. Company provides insurance as to said lien in accordance with the terms of this Policy.”

2. If Company then determines to issue with exception to the lien after otherwise complying with P-11, it may, pursuant to Procedural Rule P-5, show the lien in Schedule B and may state one of the following:

(a) If the lien may only be foreclosed judicially

“Company insures the Insured against loss, if any, sustained by the insured under the terms of this Policy by reason of a final, non-appealable judgment of a court of competent jurisdiction that orders foreclosure of said lien on the land. Company agrees to provide defense to the Insured in accordance with the terms of this Policy if suit is brought against the insured to foreclose said lien on the land.”

or

(b) If the lien may be foreclosed nonjudicially:

“Company insures the Insured against loss, if any, sustained by the insured under the terms of this Policy by reason of a foreclosure of said lien on the land. Company agrees to provide defense to the Insured in accordance with the terms of this Policy if suit is brought against the insured to foreclose said lien on the land and to take action in accordance with the terms of the policy if the holder of the lien commences a foreclosure action based on said lien.”

The provisions of this Rule shall not modify or diminish the requirements of P-11.



EXHIBIT 4

PLANNED UNIT DEVELOPMENT ENDORSEMENT

Planned Unit Development (T-17)

ENDORSEMENT ATTACHED TO AND MADE A PART OF POLICY OF TITLE INSURANCE SERIAL NUMBER ______________ ISSUED BY BLANK TITLE INSURANCE COMPANY HEREIN CALLED THE COMPANY Order No.: The Company insures the Insured against loss or damage sustained by reason of:

1. Present violations of any restrictive covenants referred to in Schedule B which restrict the use of the land, except violations relating to environmental protection unless a notice of a violation thereof has been recorded or filed in the public records and is not excepted in Schedule B. The restrictive covenants do not contain any provisions which will cause a forfeiture or reversion of title. 2. The priority of any lien for charges and assessments at Date of Policy in favor of any association of homeowners which are provided for in any document referred to in Schedule B over the lien of any insured mortgage identified in Schedule A. 3. The enforced removal of any existing structure on the land (other than a boundary wall or fence) because it encroaches onto adjoining land or onto any easements. 4. The failure of title by reason of a right of first refusal to purchase the land which was exercised or could have been exercised at Date of Policy.

This endorsement is made a part of the policy and is subject to all of the terms and provisions thereof and of any prior endorsements thereto. Except to the extent expressly stated, it neither modifies any of the terms and provisions of the policy and any prior endorsements, nor does it extend the effective date of the policy and any prior endorsements, nor does it increase the face amount thereof. Form T-17: Planned Unit Development.

PROCEDURAL RULE P-9.b.(14) A Company may issue its Planned Unit Development Endorsement (T-17) to a Mortgagee Policy, if its underwriting requirements are met and if it is paid the premium described in Rate Rule R-11.l. The Company may delete any insuring provision if it does not consider that risk acceptable. The Company may not issue the Planned Unit Development Endorsement (T-17) if the land covered by the policy is not residential real property. Any insurance matter that may be covered by a Planned Unit Development Endorsement (T-17) may be insured only by the use of the Planned Unit Development Endorsement (T-17).

RATE RULE

R.11.l. Endorsement issued as provided in Rule P-9b(14)----When the Planned Unit Development Endorsement (T-17) is issued with a Mortgagee Policy in accordance with Rule P-9b(14), the premium for the Planned Unit Development Endorsement (T-17) shall be $25.00. If the Company issues the Planned Unit Development Endorsement (T-17) on two or more title insurance policies which are issued simultaneously covering the same land, then the premium for the Planned Unit Development Endorsement (T-17) shall be charged only for one Planned Unit Development Endorsement (T-17).



RESTRICTIONS, ENCROACHMENTS, MINERALS (MORTGAGEE POLICY) ENDORSEMENT

Form T-19: Restrictions, Encroachments, Minerals

ALTA Restrictions, Encroachments, Minerals Endorsement (10/17/98) 9

Attached to No. __________

Issued By

STEWART TITLE GUARANTY COMPANY

The Company insures the owner of the indebtedness secured by the insured mortgage against loss or damage sustained by reason of:

1. The existence at Date of Policy of any of the following: (a) Covenants, conditions or restrictions under which the lien of the mortgage referred to in Schedule A can be divested, subordinated or extinguished, or its validity, priority or enforceability impaired. (b) Unless expressly excepted in Schedule B: (1) Present violations on the land of any enforceable covenants, conditions or restrictions, and any existing improvements on the land which violate any building setback lines shown on a plat of subdivision recorded or filed in the public records. (2) Any instrument referred to in Schedule B as containing covenants, conditions or restrictions on the land which, in addition, (i) establishes an easement on the land; (ii) provides a lien for liquidated damages; (iii) provides for a private charge or assessment; (iv) provides for an option to purchase, a right of first refusal or the prior approval of a future purchaser or occupant. (3) Any encroachment of existing improvements located on the land onto adjoining land, or any encroachment onto the land of existing improvements located on adjoining land. (4) Any encroachment of existing improvements located on the land onto that portion of the land subject to any easement excepted in Schedule B. (5) Any notices of violation of covenants, conditions and restrictions relating to environmental protection recorded or filed in the public records. 2. Any future violation on the land of any existing covenants, conditions or restrictions occurring prior to the acquisition of title to the estate or interest in the land by the Insured, provided the violation results in: (a) Invalidity, loss of priority, or unenforceability of the lien of the insured mortgage; or (b) loss of title to the estate or interest in the land if the Insured shall acquire title in satisfaction of the indebtedness secured by the insured mortgage. 3. Damage to existing improvements, including lawns, shrubbery or trees: (a) which are located on or encroach upon that portion of the land subject to any easement excepted in Schedule B, which damage results from the exercise of the right to maintain the easement for the purpose for which it was granted or reserved; (b) resulting from the future exercise of any right to use the surface of the land for the extraction or development of minerals excepted from the description of the land or excepted in Schedule B. 4. Any final court order or judgment requiring the removal from any land adjoining the land of any encroachment excepted in Schedule B. 5. Any final court order or judgment denying the right to maintain any existing improvements on the land because of any violation of covenants, conditions or restrictions or building setback lines shown on a plat of subdivision recorded or filed in the public records.

Wherever in this endorsement the words “covenants, conditions or restrictions” appear, they shall not be deemed to refer to or include the terms, covenants, conditions or limitations contained in an instrument creating a lease.

As used in paragraphs 1(b)(1) and 5, the words “covenants, conditions or restrictions” shall not be deemed to refer to or include any covenants, conditions or restrictions relating to environmental protection.

This endorsement is made a part of the policy and is subject to all of the terms and provisions thereof and any prior endorsements thereto. Except to the extent expressly stated, it neither modifies any of the terms and



provisions of the policy and any prior endorsements, nor does it extend the effective date of the policy and any prior endorsements, nor does it increase the face amount thereof.

Signed under seal for the Company, but this endorsement is to be valid only when it bears an authorized countersignature.

PROCEDURAL RULE

P-50. RESTRICTIONS, ENCROACHMENTS, MINERALS ENDORSEMENT (T-19).

A. A Company may issue its Restrictions, Encroachments, Minerals Endorsement (T-19) to a Mortgagee Policy (T-2) on residential real property, if its underwriting requirements are met and if it is paid the premium prescribed in Sub-Section A. of Rate Rule R-29. The Company shall delete any insuring provision if it does not consider that risk acceptable. Any insured matter covered in the Restrictions, Encroachments, Minerals Endorsement (T-19) may be insured only by the use of this Restrictions, Encroachments, Minerals Endorsement (T-19).

B. A Company may issue its Restrictions, Encroachments, Minerals Endorsement (T-19) to a Mortgagee Policy (T-2) on land which is not residential real property, if its underwriting requirements are met and if it is paid the premium prescribed in Sub-Section B. of Rate Rule R-29. The Company shall delete any insuring provision if it does not consider that risk acceptable. Any insured matter covered in the Restrictions, Encroachments, Minerals Endorsement (T-19) may be insured only by the use of this Restrictions, Encroachments, Minerals Endorsement (T-19).

RATE RULE

R-29 PREMIUM FOR RESTRICTIONS, ENCROACHMENTS, MINERALS ENDORSEMENT (T-19).

A. When the Restrictions, Encroachments, Minerals Endorsement (T-19) is issued with a Mortgagee Policy of Title Insurance (T-2) on residential real property in accordance with Rule P-50, the premium for the Restrictions, Encroachments, Minerals Endorsement (T-19) shall be 5% of the Basic Rate for a single issue policy provided that the minimum premium shall be not less than $25.00.

B. When the Restrictions, Encroachments, Minerals Endorsement (T-19) is issued with a Mortgagee Policy of Title Insurance (T-2) on land which is not residential real property, in accordance with Rule P-50, the premium for the Restrictions, Encroachments, Minerals Endorsement (T-19) shall be 10% of the Basic Rate for a single issue policy provided that the minimum premium shall be not less than $25.00.



RESTRICTIONS, ENCROACHMENTS, MINERALS OWNER POLICY (T-1)

ENDORSEMENT

RESTRICTIONS, ENCROACHMENTS, MINERALS ENDORSEMENT – OWNER POLICY (T-19.1)

Attached to Policy No. _______________

Issued By

BLANK TITLE INSURANCE COMPANY

The Company insures the insured against loss or damage sustained by reason of:

1. The existence, at Date of Policy, of any of the following unless expressly excepted in Schedule B: (a) Present violations on the land of any enforceable covenants, conditions or restrictions, or any existing improvements on the land which violate any building setback lines shown on a plat of subdivision recorded or filed in the public records. (b) Any instrument referred to in Schedule B as containing covenants, conditions or restrictions on the land which, in addition, (i) establishes an easement on the land; (ii) provides for an option to purchase, a right of first refusal or the prior approval of a future purchaser or occupant; or (iii) provides a right of reentry, possibility of reverter or right of forfeiture because of violations on the land of any enforceable covenants, conditions or restrictions. (c) Any encroachment of existing improvements located on the land onto adjoining land, or any encroachment onto the land of existing improvements located on adjoining land. (d) Any encroachment of existing improvements located on the land onto that portion of the land subject to any easement excepted in Schedule B. (e) Any notices of violation of covenants, conditions and restrictions relating to environmental protection recorded or filed in the public records. 2. Damage to existing buildings: (a) Which are located on or encroach upon that portion of the land subject to any easement excepted in Schedule B, which damage results from the exercise of the right to maintain the easement for the purpose for which is was granted or reserved; (b) Resulting from the future exercise of any right existing at Date of Policy to use the surface of the land for the extraction or development of minerals excepted from the description of the land or excepted in Schedule B. 3. Any final court order or judgment requiring the removal from any land adjoining the land of any encroachment, other than fences, landscaping or driveways, excepted in Schedule B. 4. Any final court order or judgment denying the right to maintain any existing building on the land because of any violation of covenants, conditions or restrictions or buildings setback lines shown on a plat of subdivision recorded or file din the public records.

Wherever in this endorsement the words “covenants, conditions or restrictions” appear, they shall not be deemed to refer to or include the terms, covenants, conditions or limitations contained in an instrument creating a lease.

As used in paragraph 1(a) and 4, the words “covenants, conditions or restrictions” shall not be deemed to refer to or include any covenants, conditions or restrictions relating to environmental protection.

This endorsement is made a part of the policy and is subject to all of the terms and provisions thereof and of any prior endorsements thereto. Except to the extent expressly stated, it neither modifies any of the terms and provisions of the policy and any prior endorsements, nor does it extend the effective date of the policy and any prior endorsements, nor does it increase the face amount thereof.

Blank Title Insurance Company

By: _________________________________

Authorized Signatory



PROCEDURAL RULE

P-50. RESTRICTIONS, ENCROACHMENTS, MINERALS ENDORSEMENT (T-19) .

C. A Company may issue its Restrictions, Encroachments, Minerals Endorsement – Owner Policy (T-19.1) on or after the date that Rate Rule R-29 is effective to an Owner Policy (T-1) on land which is not residential real property, if its underwriting requirements are met and if it is paid the premium, if any, prescribed in Sub-Section C. of Rate Rule R-29. The Company shall delete any insuring provision if it does not consider that risk acceptable. Any insured matter covered in the Restrictions, Encroachments, Minerals Endorsement – Owner Policy (T-19.1) may be insured only by the use of this Restrictions, Encroachments, Minerals Endorsement – Owner Policy (T-19.1).

RATE RULE

R-29. PREMIUM FOR RESTRICTIONS, ENCROACHMENTS, MINERALS ENDORSEMENT – (T-19) AND PREMIUM FOR RESTRICTIONS, ENCROACHMENTS, MINERALS ENDORSEMENT OWNER POLICY (T-19.1)

C. When the Restrictions, Encroachments, Minerals Endorsement Owner Policy (T-19.1) is issued with an Owner Policy of Title Insurance (T-1) on land which is not residential real property, in accordance with Rule P-50, the premium for the Restrictions, Encroachments, Minerals Endorsement – Owner Policy (T-19.1) shall be 15% of the Basic Rate for a single issue policy provided that the minimum premium shall be not less than $25.00. A Company may not issue its Restrictions, Encroachments, Minerals Endorsement – Owner Policy (T-19.1) on residential real property.



EXHIBIT 5

ACCESS ENDORSEMENT (T-23)

Attached to Policy No. Issued by BLANK TITLE INSURANCE COMPANY HEREIN CALLED COMPANY

The Company insures against loss or damage sustained by the insured if, at Date of Policy (i) the land does not abut and have both actual vehicular and pedestrian access to and from [insert name of single street, road, or highway], (the “Street”), or (ii) the Street is not physically open.

This endorsement is issued as part of the policy. Except as it expressly states, it does not (i) modify any of the terms and provisions of the policy, (ii) modify any prior endorsements, (iii) extend the Date of Policy, or (iv) increase the Amount of Insurance. To the extent a provision of the policy or a previous endorsement is inconsistent with an express provision of this endorsement, this endorsement controls. Otherwise, this endorsement is subject to all of the terms and provisions of the policy and of any prior endorsements.

PROCEDURAL RULE P-54. ACCESS ENDORSEMENT (T-23).

A Company may issue its Access Endorsement (T-23) on or after the date Rate Rule R-30 is effective to a Mortgagee Policy (T-2) or Owner Policy (T-1) on land which contains improvements and which is not residential real property, if its underwriting requirements are met and if it is paid the premium, if any, prescribed in Rate Rule R-30. The Company may add any exception to the endorsement that it considers, in its sole discretion, to be appropriate. The Company shall delete any insuring provision or portion thereof if it does not consider that risk acceptable. Any insured matter covered in the Access Endorsement (T-23) may be insured only by the use of this endorsement. A Company may not issue its Access Endorsement (T-23) on residential real property.

RATE RULE R-30 PREMIUM FOR ACCESS ENDORSEMENT (T-23).

A. When the Access Endorsement (T-23) is issued with a Mortgagee Policy of Title Insurance (T-2) or Owner Policy (T-1) in accordance with Rule P-54, the premium for the Access Endorsement (T-23) shall be $100 for each policy.



EXHIBIT 6

CONTIGUITY ENDORSEMENT (T-25)

Attached to Policy No.

Issued by

BLANK TITLE INSURANCE COMPANY

HEREIN CALLED THE COMPANY

The Company hereby insures against loss or damage sustained by the insured by reason of:

(1) the failure [of the _______boundary line of Parcel A] of the land to be contiguous to [the ________boundary line of Parcel B] [for more than two parcels, continue as follows: “; of [the ______boundary line of Parcel B] of the land to be contiguous to [the _______boundary line of Parcel C]” and so on until all contiguous parcels described in the policy have been accounted for]; or (2) the presence of any gaps, strips or gores separating any of the contiguous boundary lines described above.

This endorsement is issued as part of the policy. Except as it expressly states, it does not (i) modify any of the terms and provisions of the policy, (ii) modify any prior endorsements, (iii) extend the Date of Policy, or (iv) increase the Amount of Insurance. To the extent a provision of the policy or a previous endorsement is inconsistent with an express provision of this endorsement, this endorsement controls. Otherwise, this endorsement is subject to all of the terms and provisions of the policy and of any prior endorsements.

FORM T-25: Contiguity Endorsement

ADOPTED

PROCEDURAL RULE

P-56. CONTIGUITY ENDORSEMENT (T-25).

A Company may issue its Contiguity Endorsement (T-25) on or after the date that Rate Rule R-32 is effective to a concurrently issued Mortgagee Policy (T-2) or an Owner Policy (T-1) on land which is not residential real property, if title to each tract described in the Contiguity Endorsement (T-25) is insured by the policy, if the Company receives a survey acceptable to it, if its underwriting requirements are met and if it is paid the premium, if any, prescribed in Rate Rule R-32. The Company may add any exception to the endorsement that it considers, in its sole discretion, to be appropriate. Any matter covered in the Contiguity Endorsement (T-25) may be insured only by the use of this endorsement. A Company may not issue its Contiguity Endorsement (T-25) on residential real property.

RATE RULE

R-32 PREMIUM FOR CONTIGUITY ENDORSEMENT (T-25).

When the Contiguity Endorsement (T-25) is issued with a Mortgagee Policy (T-2) or an Owner Policy (T-1) in accordance with Rule P-56, the premium for the Contiguity Endorsement (T-25) shall be $100 for each policy.

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