For decades, title examination in Texas mineral transactions often began with a straightforward question: What does the deed say?
That question remains essential. But recent litigation has highlighted an equally important one: How has the interest actually been treated over time?
Courts are increasingly being asked to evaluate not only the language of historical instruments, but also decades of conduct surrounding those instruments. Division orders, royalty payments, leases, ratifications, probate filings, and recorded conveyances may all become part of the evidentiary record when ownership disputes arise. In some cases, that historical course of conduct has become just as important as the deed itself.
One doctrine driving this trend is the presumed grant doctrine. Once viewed as a rarely invoked rule used primarily to solve ancient title defects, the doctrine has reemerged as a significant issue in modern mineral title litigation. Recent cases have raised important questions about how long-standing ownership practices can affect title disputes and what evidence courts may consider when evaluating competing claims.
For title examiners, landmen, operators, and mineral owners, the lesson is straightforward: reading the deed may no longer be enough.
The Presumed Grant Doctrine’s Historical Purpose
For most of the twentieth century, the presumed grant doctrine was a legal relic. Courts applied it almost exclusively in one narrow context: filling gaps in ancient title chains where records had been lost or destroyed and no better evidence of a prior conveyance existed.
The Texas Supreme Court’s explanation in Magee v. Paul, 221 S.W. 254 (Tex. 1920), the case most often credited with establishing the modern three-element test, captures the doctrine’s original purpose precisely. The Court described the rule as “essential to the ascertainment of the very truth of ancient transactions,” noting that “[w]ithout it, numberless valid land titles could not be upheld.” Id. at 256-57.
The facts of Magee illustrate the problem the doctrine was designed to solve. At issue was a gap in the title chain to 640 acres in Lubbock County. The missing link was a conveyance from John Gibson to Stephen Albert, a deed that had reportedly been placed in a package handed to a private courier, who was then attacked by armed and masked men who stole it. Id. at 256. The Court allowed circumstantial evidence of that lost conveyance, including affidavits about the robbery and certified copies of published notices of the missing instruments, to establish the missing link in the chain. Id. at 256-57.
That is the doctrine in its original and intended form: a rule of evidence permitting proof, by circumstances, that a conveyance once existed when the instrument itself was gone.
Critically, the doctrine, as originally understood, was not simply a vehicle to vest title in whoever had long claimed the land without a full chain of title running to them. The intent was narrower: to supply a missing link where the absence of a recorded conveyance was caused by a lost or destroyed instrument, one that had existed but could not be produced.
The distinction between “the deed existed but was lost” and “no deed was ever executed” was fundamental to the doctrine’s historical application. Adams v. Slattery, 295 S.W.2d 859 (Tex. 1956), applied the doctrine where county courthouse records had been destroyed by fire in 1874, leaving a gap no other evidence could fill. Id. at 861. Jeffus v. J.B. Coon, 484 S.W.2d 949 (Tex. App.—Tyler 1972, no writ), arose from the same courthouse fire. Id. at 951-54. In both cases, the doctrine bridged a gap attributable to the physical destruction of instruments that had once existed.
Several courts of appeals carried that understanding forward, treating a demonstrable gap in the title chain as a threshold requirement before the doctrine could be raised.
Then came Van Dyke v. Navigator Group.
Why Recent Cases Matter
Van Dyke v. Navigator Group, 668 S.W.3d 353 (Tex. 2023), was primarily a deed construction case. It involved a 1924 deed reserving “one-half of one-eighth of all minerals,” and the Court’s primary holding established a new rebuttable presumption for construing double fractions involving 1/8 in mineral instruments of that era.
That holding is significant, but it is not what has generated the most attention among title professionals.
What has drawn attention is the Court’s discussion of the presumed grant doctrine. Having resolved the case on deed construction grounds, the Court went on to hold that it would have reached the same result under the presumed grant doctrine, even without any gap in the title chain.
Ninety years of both parties transacting as though each owned a one-half mineral interest was, in the Court’s view, sufficient to satisfy the doctrine’s three elements. Van Dyke, 668 S.W.3d at 366-68. The Court expressly rejected the gap-in-title requirement that several lower courts had imposed, holding that “neither our precedent nor the doctrine’s underlying purposes support mandating this additional test.” Id. at 366.
This represented a meaningful expansion from the doctrine’s historical roots. Magee and its progeny focused on proving that a missing conveyance once existed. Van Dyke extended the discussion to a situation where there was no missing deed at all, only decades of conduct reflecting a shared understanding of how an existing deed should be interpreted.
The Court acknowledged that its presumed grant analysis was not necessary to resolve the dispute. Nevertheless, the discussion has proven influential because it signaled a willingness to consider the doctrine in circumstances far removed from its traditional application.
The Court also noted in footnote 11 that when the presumed grant doctrine is clearly implicated, a court could potentially dispense with deed construction analysis altogether. Id. at 368 n.11. The significance of that observation should not be understated. It suggests that historical conduct may, in some circumstances, become a central consideration in resolving ownership disputes.
The Continuing Questions
The doctrine still requires satisfaction of the same three elements articulated in Magee:
1. A long-asserted and open claim adverse to the apparent owner;
2. Nonclaim by the apparent owner; and
3. Acquiescence by the apparent owner in the adverse claim.
Magee, 221 S.W. at 256-57; Van Dyke, 668 S.W.3d at 366.
What has changed is the factual context in which those elements are being tested.
Clifton v. Johnson, No. 23-0671, ___ S.W.3d ___, 2026 WL 705763 (Tex. Mar. 13, 2026), involved a 1951 deed conveying a royalty interest described as “1/128 (1/16 of the usual 1/8 royalty).” For approximately seventy years, the interest was treated, paid, and accepted as a fixed 1/128 NPRI. In 2020, a successor grantee argued the deed actually conveyed a floating 1/16 NPRI.
The Texas Supreme Court resolved the dispute through deed construction, concluding that the language rebutted the Van Dyke double-fraction presumption and confirmed the fixed 1/128 interest. Because that resolved the case, the Court declined to decide the presumed grant issue.
Even so, Clifton reinforced the continued importance of the three-element framework. The Court’s discussion emphasized the significance of decades of consistent conduct, including predecessors accepting payments consistent with the lower interest. Had the Court needed to reach the issue, that conduct may have been relevant to the acquiescence analysis.
Notably, a Motion for Rehearing was filed in Clifton on April 27, 2026, and remains pending as of the date of this publication. As a result, Clifton is not yet final, and further developments remain possible.
Meanwhile, the Fasken litigation presents another important question. In Boren Descendants v. Fasken Oil & Ranch, Ltd., No. 25-0010, 2026 WL 1108688 (Tex. Apr. 24, 2026), the Texas Supreme Court reversed a lower court’s refusal to consider the doctrine and remanded the case for further proceedings. The dispute involves approximately eighty-five years of consistent treatment supporting one interpretation of a fixed interest.
One of the central unresolved issues remains whether passive nonclaim under the second element can substitute for the affirmative acquiescence traditionally associated with the third element. That question continues to be actively litigated.
Most recently, the Fourth Court of Appeals addressed related issues in B.H.C.H. Mineral, Ltd. v. Needmore Minerals, LLP, No. 04-24-00382-CV (Tex. App.—San Antonio May 20, 2026). The dispute involved a 1937 deed that had been treated as a fixed 1/32 NPRI for decades.
The majority rejected the presumed grant argument, while a dissent questioned whether the majority’s approach left sufficient room for the doctrine to operate as discussed by the Supreme Court. The resulting tension between Clifton, Needmore, and the ongoing Fasken litigation underscores that this area of law continues to evolve.
The Practical Lesson for Title Work
Whether these disputes ultimately turn on deed construction, presumed grant principles, or some combination of both, they share a common theme: historical conduct matters.
For title examiners and land professionals, a complete analysis increasingly requires more than reviewing the four corners of a deed. Division orders, royalty payment histories, recorded conveyances, probate records, ratifications, and lease activity may all provide evidence of how parties have understood and treated an interest over time.
The recent cases do not eliminate the importance of deed construction. Rather, they highlight that ownership disputes are often shaped by both the language of the instrument and the conduct that follows it.
In Parts Two and Three of this series, we examine the practical implications of that reality: what operators can do to reduce risk when making payments and what mineral and royalty owners can do to avoid creating a record that may later be used against them.
How RR&A Can Help
The recent presumed grant cases demonstrate that modern title analysis often requires more than reviewing the language of a deed. Historical payment practices, division orders, probate records, conveyances, and decades of ownership conduct can all become relevant when ownership questions arise.
At R. Reese & Associates, our attorneys help operators, investors, and land professionals navigate these complex title issues through title opinions, acquisition and divestiture due diligence, curative work, and ownership analysis. Whether you are evaluating a transaction, examining a title issue, or addressing uncertainty in a historical chain of title, our team can help identify risks before they become disputes.
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