Boren Descendants and Royalty Owners v. Fasken Oil and Ranch, Ltd.; Fasken Land and Minerals, Ltd.; And Fasken Royalty Investments, Ltd.

Supreme Court of Texas
                        ══════════
                         No. 25-0010
                        ══════════

           Boren Descendants and Royalty Owners,
                          Petitioners,

                               v.

 Fasken Oil and Ranch, Ltd.; Fasken Land and Minerals, Ltd.;
            and Fasken Royalty Investments, Ltd.,
                         Respondents

  ═══════════════════════════════════════
              On Petition for Review from the
     Court of Appeals for the Eleventh District of Texas
  ═══════════════════════════════════════

                              and

                        ══════════
                         No. 25-0012
                        ══════════

   The Mabee Ranch Royalty Partnership, L.P.; 315 MR, Inc.;
93 JM, Inc.; Rock River Minerals, LP; Primitive Petroleum, Inc.;
 Austen Campbell, Co-Executor of the Estate of William Scott
Campbell; Janet Campbell, Co-Executor of the Estate of William
  Scott Campbell; Osado Properties, Ltd.; and Judith Guidera,
            Trustee of the Morrison Oil & Gas Trust,
                              Petitioners,

                                    v.

  Fasken Oil and Ranch, Ltd.; Fasken Land and Minerals, Ltd.;
             and Fasken Royalty Investments, Ltd.,
                             Respondents

   ═══════════════════════════════════════
               On Petition for Review from the
      Court of Appeals for the Eleventh District of Texas
     ═══════════════════════════════════════

                            PER CURIAM

       Justice Devine and Justice Hawkins did not participate in the
decision.

      In oil-and-gas cases involving deeds with double fractions, there
are two “distinct paths” to establishing a party’s interest: “the
construction of the original deed and the presumed-grant doctrine.” Van
Dyke v. Navigator Grp., 668 S.W.3d 353, 359 (Tex. 2023). This case
implicates both paths and comes to us through two petitions for review
that challenge a single judgment. The court of appeals reviewed only
the deed-construction path, however, because it mistakenly concluded
that it lacked jurisdiction to reach the presumed-grant doctrine. We
have also recently clarified the law with respect to the merits issue that
the court of appeals did reach: interpreting deeds involving double
fractions. See Clifton v. Johnson, ___ S.W.3d ___, 2026 WL 705763 (Tex.
Mar. 13, 2026). We accordingly grant the petitions for review, reverse
the court of appeals’ judgment as to jurisdiction, vacate the judgment on




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the merits, and remand the case to the court of appeals for a fresh
consideration of the merits.

                                      I

       Under a 1933 deed, Fasken holds a reserved “undivided
one-fourth (1/4th) of the usual one eighth (1/8th) royalty in and to all oil,
gas and other minerals in, to, and under or that may at any time
hereafter be produced from” certain lands. For about 85 years, the
parties to the deed and their successors treated the instrument as
reserving a fixed 1/32 royalty interest. Fasken’s representative agreed
that “for 85 years, the Faskens treated the royalty on the Mabee Ranch
as a 1/32nd,” that the royalty “did not float” for 85 years, and that the
royalty never changed from 1/32 for 85 years. Fasken also admitted that
it “has paid taxes on a .03125 [1/32] royalty interest” and that it has
never paid taxes on a greater royalty interest. Fasken further admitted
that it was “not aware of any of Fasken’s Predecessors-in-Interest ever
describing the [nonparticipating royalty interest] as anything other
than a 1/32nd (or 3.125% or other mathematical equivalent) royalty
interest.”
       In 2019, Fasken filed this suit and alleged that the deed actually
reserved a floating 1/4 royalty interest. The trial court granted partial
summary judgment in Fasken’s favor, agreeing with Fasken’s deed
construction and finding, among other things, that the defendants had
produced no evidence that the presumed-grant doctrine applies. The
trial court authorized a permissive appeal from the summary-judgment
orders and identified two controlling questions of law:




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      1. Whether the 1933 Deed reserved to Plaintiffs a floating
      1/4th royalty under applicable leases[] or a “fixed”
      non-participating royalty interest of 1/32nd (.03125).

      2. Whether Plaintiffs are barred from claiming in this
      lawsuit that their non-participating royalty interest is
      anything other than a fixed 1/32nd (or 0.03125) by
      Defendants’ affirmative defenses of waiver, division order
      estoppel/estoppel by contract, judicial estoppel, estoppel by
      deed, limitations, ratifications, and/or quasi-estoppel, as
      asserted in Defendants’ Cross-Motions on Affirmative
      Defenses.

      The court of appeals “affirm[ed] that part of the trial court’s
partial summary judgment, which found that the 1933 deed reserved to
Fasken a floating 1/4 royalty interest under any applicable leases.” 703
S.W.3d 874, 886 (Tex. App.—Eastland 2024). It also affirmed as to the
affirmative defenses of estoppel, waiver, ratification, and limitations.
Id. at 886-92, 895.
      The court held, however, that it lacked jurisdiction to consider the
presumed-grant doctrine because “[t]he issue of the presumed-grant
defense is not included within the list of issues that the trial court
identified in its order permitting an interlocutory appeal.” Id. at 892.
Finally, the court reversed the trial court’s denial of Mabee Ranch’s
summary-judgment motion on the issue of Fasken’s cause of action for
breach of contract. Id. at 893-94.
      The Boren descendants filed a petition for review in cause number
25-0010, and the Mabee Ranch parties filed a petition in cause number
25-0012.




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                                   II

      We begin with jurisdiction.       The court of appeals declined to
consider the presumed-grant doctrine because the trial court did not
specifically identify that doctrine in its order certifying a permissive
appeal. See id. at 892.
      The court rightly expressed its obligation to remain within its
jurisdictional boundaries. In this instance, however, the court’s concern
that its jurisdiction was lacking was misplaced. Once a trial court has
authorized a permissive appeal that an appellate court accepts, the
appellate court should resolve the appeal “according to the same
principles as any other appeal, including addressing all fairly included
subsidiary issues and ancillary issues pertinent to resolving the
controlling legal issue.” Elephant Ins. Co. v. Kenyon, 644 S.W.3d 137,
147 (Tex. 2022). That principle applies because it is the order that is
reviewed on appeal, “and the rules of appellate procedure preclude a
strict construction of issues presented on appeal.” Id.
      The jurisdictional inquiry, therefore, does not begin and end with
whether the trial court expressly referenced the presumed-grant
doctrine within its certification order. Rather, the question is whether
that issue was among the “fairly included subsidiary issues and
ancillary issues” in that order. Id. We hold that it was.
      The orders on appeal in this case included the grant of Fasken’s
no-evidence summary-judgment motion rejecting the presumed-grant
doctrine. One of the controlling issues of law was whether an affirmative
defense barred the plaintiffs from asserting that their interest “is
anything other than a fixed 1/32nd.” The presumed-grant doctrine, if it




                                    5
applies, would establish that Fasken holds a fixed 1/32 royalty interest.
Closing our eyes to the doctrine—“giving the parties half a loaf”—would
be inefficient and would “thwart[] the prudential and salutary purpose
of the power the Legislature has granted” by allowing permissive
appeals. Id.
      Beyond that, the legal context of this case makes it especially
clear that the presumed-grant doctrine is properly within the scope of
the appeal. As we recently reiterated, “the double-fraction presumption
sits alongside the presumed-grant doctrine.” Clifton, 2026 WL 705763,
at *5. “Both prongs, albeit in entirely distinct ways, ask the same
question: who owns this property today?” Id. It is hard to imagine how
a properly lodged presumed-grant-doctrine issue could be severed from
an appeal involving the textual analysis of a deed.
      Thus, the court of appeals’ jurisdiction was secure despite the
trial court’s omission of any specific reference to the presumed-grant
doctrine in its order authorizing a permissive appeal. We therefore
reverse the judgment of the court of appeals as to its conclusion that it
lacked jurisdiction to reach that issue.

                                   III

      When parties contest mineral-interest ownership in cases like
this one, Clifton clarified not only the scope of the double-fraction
presumption but also the need for courts to consider both the relevant
instrument’s text and, if properly raised, the presumed-grant doctrine.
We accordingly vacate the judgment of the court of appeals as to the
merits, see TEX. R. APP. P. 60.2(f), which leaves that court free to assess




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the parties’ arguments as to both prongs. We express no view as to the
correct outcome under either of them.
      As we reiterated in Clifton, “when the presumed-grant doctrine
clearly applies, ‘a court could dispense with the deed-construction
analysis’ altogether.” 2026 WL 705763, at *6 (quoting Van Dyke, 668
S.W.3d at 368 n.11). Whether this is such a case—and if it is, whether
there is nonetheless a benefit to resolving the textual dispute—are also
matters we leave in the first instance to the court of appeals. The parties
have filed helpful and detailed letter briefs in this Court addressing
Clifton’s application to this case. Those arguments should be presented
to the court of appeals on remand.
      Accordingly, without hearing oral argument, see TEX. R. APP.
P. 59.1, we grant the petitions for review, reverse the court of appeals’
judgment as to its purported lack of jurisdiction, vacate that court’s
judgment on the merits, and remand the case to the court of appeals for
further proceedings. If that court concludes that the case may be resolved
as a matter of law, it may render judgment. If the court concludes that
the parties’ dispute requires further factual development in the trial
court, it may remand the case to that court. We express no further view
as to any of these matters.


OPINION DELIVERED: April 24, 2026




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