The Texas Supreme Court has reversed an El Paso Court of Appeals decision that misapplied the Court’s ruling in Van Dyke v. Navigator Group to find that a deed conveying a 1/128 fixed interest actually conveyed a 1/16 floating interest.
Cale Andrews Clifton, et al. v. Scott W. Johnson and Florence H. Cummings (No. 23-0671; March 13, 2026) arose from a dispute over a 1951 mineral deed purporting to convey “an undivided one-one hundred and twenty-eighth (1/128) interest in and to all of the oil, gas, and other minerals in and under” certain land in Reeves County. The deed further stipulated that the land was “under oil and gas leases providing for a royalty of 1/8 of the oil and certain royalties or rentals for gas and other minerals and that Grantees herein shall receive[] one-sixteenth (1/16) of the royalties provided for in said lease insofar as the same cover the above described land ….” The deed excludes the grantees from any share in rentals or bonus money. For the next 70 years, the grantees and their successors received a fixed 1/128 royalty without dispute.
That ended in 2020, when Scott Johnson sued the Cliftons for a declaratory judgment that the deed had been misconstrued and provided for a floating 1/16 nonparticipating royalty interest. The trial court denied Johnson’s MSJ and rendered judgment for the Cliftons. The court of appeals reversed on the basis of the Van Dyke double-fraction presumption, finding that “the Grantors believed they only retained a 1/8th interest in the mineral estate” and conveyed a 1/16 floating royalty. The court of appeals held further that the Cliftons waived any arguments based on the Van Dyke presumption because they didn’t raise the issue in the trial or appellate courts. The court thus reversed the trial court’s judgment in favor of the Cliftons and remanded for further proceedings. The Cliftons sought review, which SCOTX granted.
In an opinion by Justice Young, the court reversed and reinstated the trial court’s judgment. The issue was the court of appeals’ application of the so-called “double-fraction presumption” established in Van Dyke v. Navigator Group, 668 S.W.3d 353 (Tex. 2023). In that case SCOTX held that “[a]ntiquated instruments that use 1/8 within a double fraction raise a presumption that 1/8 was used as a term of art to refer to the ‘mineral estate.’” 668 S.W.3d at 359. But as Justice Young pointed out, “the double-fraction ‘presumption is readily and genuinely rebuttable” if the textual “provisions—whether express or structural—illustrat[e] that a double fraction was in fact used as nothing more than a double fraction ….” Id. The court of appeals, however, failed to take account of language in the deed rebutting the presumption.
Comparing the text of the deed in this case to those in Van Dyke and Hysaw v. Dawkins, 483 S.W.3d 1 (Tex. 2016), the court observed that the “double fractions in those cases were not expressed as a multipled product,” but rather as fractions of a 1/8 interest. The court thus concluded, based on textual and historical analysis, that those deeds “did not use 1/8 in its arithmetical sense but instead reserved to the … grantors a ½ [or in Hysaw a 1/3] interest in the mineral estate.” By contract, in this case the deed expressly used “1/128” in the granting clause with no double fraction. The future-lease clause also uses “1/128,” also expressed as 1/16 x 1/8. “By expressly multiplying fractions to arrive at a single franction,” the court stated, “the parenthetical containing the double fraction explains how the parties reached their 1/128 future-royalty figure.” If that parenthetical were omitted, the grantees would still get 1/128, so the court of appeals basically read the fixed royalty out of the deed.
The Cliftons argued in the alternative that the court of appeals should have remanded the case to consider the presumed-grant doctrine. Since the court of appeals relied exclusively on Van Dyke, which SCOTX decided while this case was on appeal, there was merit to that position. But here the court concurred with the Cliftons’ interpretation of the lease, so it didn’t need to “decide whether it was error to deny their requested remand.” Additionally, the parties accepted the fixed 1/128 royalty interest for 70 years, demonstrating “the confluence in textual interpretation and the parties’ shared understanding” of the deed. This consistency reflected the pertinence of the presumed-grant doctrine to this decision as well. As the court explained in Van Dyke, “when the presumed-grant doctrine clearly applies, ‘a court could dispense with the deed-construction analysis altogether.’” Nevertheless, the court didn’t need to apply the presumed-grant doctrine to decide this case since it would not have changed the outcome.
