v.
Needmore Minerals, LLP, Southwest Petroleum Company, LP, Serena Kundysek, Trustee of Big Sky Mineral Trust
Dissent
Fourth Court of Appeals San Antonio, Texas DISSENTING OPINION No. 04-24-00382-CV
B.H.C.H. MINERAL, LTD., Petty Business Enterprises, Ltd., Joey R. Peacock, Jr., Trinity Mineral Management, Ltd., Hardy Mineral and Royalties, Ltd., Mark Paulson, Venada Oil & Gas, LLP, Appling Minerals, Td., Brenda Phillips on Behalf of B. Bryan Leitch III and on Behalf of Leitch Company d/b/a MiOil Ltd., Appellants
v. NEEDMORE MINERALS, LLP, Southwest Petroleum Company, LP, Serena Kundysek, Trustee of Big Sky Mineral Trust, et al., Appellees
From the 341st Judicial District Court, Webb County, Texas Trial Court No. 2022CVK000754D3 Honorable Rebecca Ramirez Palomo, Judge Presiding
Opinion by: Velia J. Meza, Justice Dissenting Opinion by: H. Todd McCray, Justice
Sitting: Rebeca C. Martinez, Chief Justice H. Todd McCray, Justice Velia J. Meza, Justice
Delivered and Filed: May 20, 2026
Because I would find the presumed-grant doctrine establishes the Esperanza Successors’
interest (the “Reserved Interest”) as a fixed 1/32nd royalty interest, I respectfully dissent from the majority opinion.
04-24-00382-CV
In three recent cases, the Texas Supreme Court breathed fresh life into the relevance and application of the presumed-grant doctrine to property rights disputes. [1] In each, the Court explained that, in certain circumstances, a court may dispense with an interpretation of an original conveyance and instead rely on circumstantial evidence to determine one’s property rights. 2
Because I believe those circumstances are irrefutably established in the record, I would find the presumed-grant doctrine is applicable to this matter and establishes the Reserved Interest as a fixed
1/32nd royalty interest.
The majority, however, contends that the presumed-grant doctrine is not applicable here because the doctrine should not be extended to establish nonpossessory rights such as royalties. I disagree with that conclusion.
First, I have seen no authority limiting the application of the doctrine to possessory interests. To the contrary, the doctrine was initially applied to incorporeal rights and only later began to be applied to land. 3 Accordingly, the application of the doctrine to non-possessory interests is but a reflection of its historic origins while the application to possessory interests was in fact the extension of the doctrine. 4
Of itself, extension of the lost grant presumption to corporeal interests should pose no problems; just as non-possessory interests can be the subject of an express grant as readily as can possessory claims, rules of evidence relating to the latter should be equally applicable to the former. 5 04-24-00382-CV
[*2]Therefore, I would conclude that when determining the presumption of a grant, “[t]here is no difference, in principle, whether the subject be a corporeal or an incorporeal hereditament.” 6
The Texas Supreme Court’s opinion in Clifton not only supports this position it demonstrates that the presumed-grant doctrine may be used to determine a non-possessory royalty interest. At issue in that case was “whether a 1951 deed’s use of ‘1/128 (1/16 of the usual 1/8 royalty)’ refers to a fixed 1/128 interest (as the parties to the deed and their successors apparently recognized for about 70 years) or a floating 1/16 interest (as no one ever asserted until the plaintiffs
in this case did in 2020).” 7 The Court ultimately determined the matter via deed interpretation, concluding that the future-royalty conveyance was separate and independent from the mineral conveyance, and conveyed a fixed 1/128 nonparticipating royalty interest. 8 The Court then found
it unnecessary to conduct a presumed-grant analysis but noted that, if its requirements were met, “the doctrine would lead to the same result as our reading of the deed: either way, Johnson is left with a fixed 1/128 royalty.” 9
Further, I disagree with the majority’s conclusion that the presumed-grant doctrine does not apply because the Esperanza Successors were required to more actively assert a hostile claim.
The presumed-grant doctrine is applicable if its proponent establishes three elements: (1) a long- asserted and open claim, adverse to that of the apparent owner; (2) nonclaim by the apparent owner; and (3) acquiescence by the apparent owner in the adverse claim. 10 Notably, each of these 04-24-00382-CV elements focuses on longstanding assertion, acquiescence, and historical treatment rather than technical parsing of the underlying legal instrument. [11]
[*3]The record before us shows a long-asserted, open claim to the Reserved Interest by the Esperanza Successors that the Garner Heirs acquiesced to. In light of that acquiescence, there was no need for the Esperanza Successors to more actively assert their rights. 12 Additionally, it is apparent from recent Texas Supreme Court decisions that all three elements required to establish the presumed-grant doctrine may be proven by the long-term, agreed treatment of the property right by the parties. 13
It is undisputed that, until appellees acquired the Garner Heirs’ interest in 2021, the Reserved Interest had always and only been calculated as a fixed 1/32nd royalty interest. In addition to five decades of division orders, royalty payments, and conveyances recognizing the Reserved Interest as a 1/32nd fixed royalty interest, the summary judgment evidence includes unrefuted deposition testimony from Tulley Currey—a Garner Heir and predecessor in interest to appellees—that the Garner Heirs have always considered the Reserved Interest to be a fixed 1/32 royalty interest and have never taken the position that the Reserved Interest is a mineral interest resulting in a 1/32nd floating interest.
[*4]04-24-00382-CV
Following recent Texas Supreme Court decisions, I would find that this record—with
uncontroverted evidence establishing the appellees’ predecessors-in-interest’s unquestioned, decades-long agreement with the Esperanza Successors that the Reserved Interest is a fixed 1/32nd royalty interest—satisfies the presumed-grant doctrine’s requirements.
For these reasons, I respectfully dissent. [14]
H. Todd McCray, Justice
[*5]Lead Opinion
Fourth Court of Appeals San Antonio, Texas OPINION
No. 04-24-00382-CV
B.H.C.H. MINERAL, LTD., Petty Business Enterprises, Ltd., Joey R. Peacock, Jr., Trinity Mineral Management, Ltd., Hardy Mineral and Royalties, Ltd., Mark Paulson, Venada Oil & Gas, LLP, Appling Minerals, Td., Brenda Phillips on Behalf of B. Bryan Leitch III and on Behalf of Leitch Company d/b/a MiOil Ltd., Appellants
v. NEEDMORE MINERALS, LLP, Southwest Petroleum Company, LP, Serena Kundysek, Trustee of Big Sky Mineral Trust, et al., Appellees
From the 341st Judicial District Court, Webb County, Texas Trial Court No. 2022CVK000754D3 Honorable Rebecca Ramirez Palomo, Judge Presiding
Opinion by: Velia J. Meza, Justice Dissenting Opinion by: H. Todd McCray, Justice
Sitting: Rebeca C. Martinez, Chief Justice H. Todd McCray, Justice Velia J. Meza, Justice
Delivered and Filed: May 20, 2026
AFFIRMED
This case presents a question familiar to Texas oil and gas practitioners: what did a nearly century-old deed reserve—a fixed 1/32 non‑participating royalty interest or a 1/32 non‑executive mineral interest with a corresponding floating royalty? For decades, oil and gas operators paid
04-24-00382-CV appellants as if the reservation were a fixed 1/32 royalty, even after a 1992 agreed judgment
described their interest as a 1/32 mineral interest. When the executive mineral owners revisited the title and concluded the reservation should not be treated as a fixed royalty, this litigation followed.
The parties fall into three groups. Appellants, the Esperanza Successors 1 (Esperanza), claim a fixed 1/32 royalty interest and invoke the presumed-grant doctrine and equitable defenses to preserve that characterization. Appellees, Needmore Minerals, LLP and related entities 2
(Needmore) contend the deed reserved a 1/32 non‑executive mineral interest with a floating royalty tied to the lease royalty. Various oil and gas operators 3 (the operators) interpleaded funds representing the disputed Esperanza interest after Needmore sued them. The trial court granted traditional and no‑evidence summary judgment for Needmore, rejected Esperanza’s competing theories, granted the operators’ interpleader, and declared that the Esperanza interest is a 1/32 mineral interest. We affirm.
BACKGROUND
In 1937, Esperanza Livestock & Land Company conveyed a 23,513.3‑acre ranch in Webb
County to John F. Sinclair, reserving: 04-24-00382-CV
[*2][A]n undivided One-Thirty-second (1/32) of all oil, gas and other minerals on, in and under said land. Grantee, his heirs and assigns, shall have authority to execute and deliver oil, gas and other mineral lease or leases upon said land, or any part thereof, without the necessity of grantor joining therein; provided, however, that in any such lease or leases there must be retained by the Lessor a royalty of at least one-eighth (1/8) in all the oil, gas and other minerals covered by said lease, or leases. As to any lease or leases executed on said land, Grantor shall not be entitled to share in any bonus money or delay rentals paid, or to be paid, thereunder. It is further provided that the undivided interest herein reserved by Grantor shall not be subject to any developing charges or expenses of any character incurred in connection with any such lease or leases.
Esperanza’s charter was forfeited in 1951, and its shareholders—the Esperanza Successors— succeeded to the reserved interest. Sinclair then conveyed his interest to John Nance Garner, 4 whose heirs and successors made further conveyances over the years. 5
In 1967, Garner’s successors executed a lease covering the entire mineral estate, reserving a 1/6 landowner’s royalty. The lessee-operators recognized the 1937 reservation and, unable to locate the Esperanza Company’s shareholders, suspended their share of the royalty. These operators calculated the Esperanza share as a fixed 1/32 gross production rather than as a 1/32 fraction of the landowner’s 1/6 royalty.
In 1976 and 1985, the Garners entered indemnity agreements with operators under which they received the previously suspended Esperanza share, describing the 1937 reservation as a
“perpetual and nonparticipating royalty interest equal to one‑thirty‑second of eight‑eighths (1/32 of 8/8)” of production. Subsequent Garner‑chain conveyances in the late 1980s likewise alternately
described the reservation as a “1/32 non‑participating royalty interest” and as a “1/32 interest in all oil, gas and other minerals and/or royalty reserved.”
[*3]04-24-00382-CV
In 1990, the Esperanza Successors sued the Garners for their share of the royalties. In 1992, they entered an agreed judgment recognizing the Esperanza Successors’ ownership of “a 1/32nd mineral interest” and confirming that the Garners owned the remaining 31/32 mineral interest.
Despite the judgment’s express language, division orders continued to account for the Esperanza interest as a non‑participating royalty interest (NPRI) 6 and operators thereafter paid it as a fixed royalty.
In 2020, San Isidro Development Company, L.C., analyzing the Garner chain of title, concluded that the Esperanza interest had been mischaracterized as a fixed 1/32 NPRI rather than a 1/32 non‑executive mineral interest with a floating royalty tied to the lease royalty. San Isidro calculated that the historical treatment had over‑credited the Esperanza interest by approximately
2.59% of the 1/6 royalty and under‑credited the Garner side by the same amount, assembled an investor group including Needmore Minerals, LLC, and acquired the Garner interests in 2021.
After closing, San Isidro notified the operators that, in their view, the 1937 deed reserved
a 1/32 non‑executive mineral interest burdened by the lease royalty and demanded corrections. In 2022, Needmore sued the operators for declaratory relief, breach of lease, and statutory underpayment, seeking construction of the 1937 deed and 1992 judgment. Because the parties’
rights turned on the “quantum and character” of the Esperanza interest, the operators interpleaded, bringing Esperanza into the suit. Esperanza then asserted that the deed reserved a fixed 1/32 NPRI, 04-24-00382-CV invoked the presumed‑grant doctrine, and pled affirmative defenses including laches, estoppel by deed, quasi‑estoppel, waiver, and ratification.
[*4]Needmore moved for traditional and no‑evidence summary judgment on its
declaratory‑judgment and underpayment claims and on Esperanza’s presumed‑grant theory and affirmative defenses. Esperanza filed a competing motion for partial summary judgment, seeking a declaration that it owns a fixed 1/32 NPRI by presumed grant and judgment on their defenses.
The trial court granted Needmore’s motions, denied Esperanza’s motions, and signed a final
judgment declaring that the 1937 deed reserved a 1/32 non‑executive mineral interest and that the royalty attributable to that interest is 1/32 of the lease royalty in effect from time to time (currently
1/6). The trial court also granted the operators’ petition in interpleader, dismissing all claims against them without prejudice. See TEX. R. CIV. P. 43. This appeal followed.
DISCUSSION
Esperanza raises five issues on appeal, four of which attack the trial court’s summary
judgment ruling on declaratory relief, and one that is conditioned on our interpretation of the Esperanza interest as a fixed 1/32 NPRI. We begin with the applicable summary-judgment standards before turning to construction of the 1937 deed.
1 Standard of review We review declaratory judgments under the same standards that govern other judgments. TEX. CIV. PRAC. & REM. CODE § 37.010. Summary judgment rulings are reviewed de novo. Fossil Grp., Inc. v. Harris, 691 S.W.3d 874, 882 (Tex. 2024). When, as here, both sides move for summary judgment and the trial court grants one motion and denies the other, we consider the summary‑judgment evidence presented by both sides, decide all issues properly raised, and render 04-24-00382-CV the judgment the trial court should have rendered. Dow Chem. Co. v. Bright, 89 S.W.3d 602, 605
[*5](Tex. 2002).
There are two types of summary judgment in Texas: traditional and no-evidence. See TEX.
R. CIV. P. 166a. 7 In reviewing either type of motion, we view the evidence in the light most
favorable to the nonmovant, crediting favorable evidence if reasonable jurors could do so and disregarding contrary evidence unless reasonable jurors could not. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). When presented with a combined or “hybrid” motion, we generally consider any properly preserved no‑evidence grounds first. Id.
A movant seeking traditional summary judgment must show there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nassar v. Liberty Mut. Fire Ins.
Co., 508 S.W.3d 254, 257 (Tex. 2017). If the movant meets that burden on the grounds expressly
presented, the burden shifts to the nonmovant to raise a fact issue. KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015).
A no‑evidence motion is proper when, after an adequate time for discovery, there is no evidence of one or more essential elements of a claim or defense on which the nonmovant would bear the burden of proof at trial. TEX. R. CIV. P. 166a. The nonmovant must then produce more than a scintilla of evidence on each challenged element. Lozada v. Posada, 718 S.W.3d 262, 266
(Tex. 2025) (per curiam). “Less than a scintilla” exists when the evidence is so weak as to do no more than create a surmise or suspicion; “more than a scintilla” exists when the evidence would enable reasonable and fair‑minded people to differ in their conclusions. King Ranch, Inc. v.
[*6]04-24-00382-CV
Chapman, 118 S.W.3d 742, 751 (Tex. 2003). This legal-sufficiency review parallels the standard applied to directed verdicts. Id. at 750–51.
2 Construction of the 1937 deed Esperanza claims ownership under the 1937 deed from Esperanza Livestock & Land Company to John F. Sinclair. Needmore contends the deed reserved a 1/32 mineral interest, stripped of the executive, bonus, and delay‑rental rights but retaining the right to share in royalty, such that Esperanza is entitled to 1/32 of the landowner’s royalty (1/32 × 1/6 = 1/192 of gross production) under the Garner lease. The trial court adopted Needmore’s construction, and so do we. Deed construction follows contract‑construction principles; when a deed is unambiguous, its construction is a question of law. Luckel v. White, 819 S.W.2d 459, 461 (Tex. 1991) (citing Altman v. Blake, 712 S.W.2d 117, 118 (Tex. 1986)). Our primary duty is to ascertain the parties’ intent from the four corners of the instrument, harmonizing all provisions so that none is rendered meaningless. Luckel, 819 S.W.2d at 461–62. We do not view terms in isolation; instead, we give effect to all parts of the conveyance and construe the document as a whole. Plainsman Trading Co. v. Crews, 898 S.W.2d 786, 789 (Tex. 1995). 2.1 The deed’s text denotes a mineral estate The opening clause of the mineral reservation—reserving “an undivided One-Thirty- second (1/32) of all oil, gas and other minerals on, in and under said land”—uses a classic formulation for conveying a mineral estate. See Altman, 712 S.W.2d at 118 (treating a conveyance of an undivided 1/16 “in and to all the oil, gas and other minerals in and under and that may be 04-24-00382-CV produced” as mineral-interest language). We have likewise repeatedly interpreted nearly identical
[*7]“in and under” language as denoting a mineral estate, not a mere royalty interest. Reed v. Maltsberger/Storey Ranch, LLC, 534 S.W.3d 51, 63–64 (Tex. App.—San Antonio 2017, pet. denied); Hamilton v. Morris Res., Ltd., 225 S.W.3d 336, 343 (Tex. App.—San Antonio 2007, pet. denied); Garza v. Prolithic Energy Co., LP, 195 S.W.3d 137, 142 (Tex. App.—San Antonio 2006, pet. denied).
Although distinguishing mineral interests from NPRIs is a “perennial problem” in Texas law, Laura H. Burney, Oil, Gas, and Mineral Titles: Resolving Perennial Problems in the Shale
Era, 62 U. KAN. L. REV. 97, 100, 122 (2013), the deed language here is “neither unusual nor idiosyncratic,” see KCM Fin., 457 S.W.3d at 76. The deed employs standard “in and under” mineral-estate language rather than speaking in terms of “royalty” or “production,” and thus indicates an interest in the minerals in place—with a corresponding share of the lessor’s royalty— rather than a fixed share of gross production.
2.2 Attribute stripping confirms mineral‑estate character The clauses following the initial reservation sequentially strip away specific attributes of the mineral estate. The deed conveys to the grantee exclusive authority to execute leases, divesting the grantor of the executive right. It then provides that the grantor “shall not be entitled to share in any bonus money or delay rentals,” removing bonus and delay-rental rights from the reserved interest. [8] That pattern—reservation of a mineral interest followed by carve-outs of the executive, 04-24-00382-CV bonus, and delay-rental rights—matches the structure the supreme court has treated as creating a
[*8]nonexecutive mineral interest rather than a pure royalty interest. See French v. Chevron USA Inc., 896 S.W.2d 795, 797–98 (Tex. 1995); Altman, 712 S.W.2d at 118–19.
Under Texas law, the mineral estate is a bundle of five separate rights: (1) the right to develop; (2) the right to execute leases; (3) the right to receive bonus payments in consideration for the execution of a lease; (4) the right to receive delay rentals in consideration for postponing development; and (5) the right to receive royalties. Hysaw, 483 S.W.3d at 9 (citing French, 896
S.W.2d at 797–98). When an undivided mineral interest is conveyed or reserved, all five attributes are presumed to pass with it unless the instrument expresses a contrary intent, and each attribute
may be severed into a separate interest. [9] French, 896 S.W.2d at 797; Ridgefield Permian, LLC v. Diamondback E & P LLC, 626 S.W.3d 357, 363 (Tex. App.—El Paso 2021, pet. denied). A single
instrument may convey an undivided mineral interest and a separate royalty interest, and the royalty share may be larger or smaller than the mineral interest. Hysaw, 483 S.W.3d at 9.
In Altman, a 1930s deed conveyed an undivided 1/16 interest “in and under and that may be produced,” granted ingress and egress to explore and develop, but excluded the grantee from rentals or leases. 712 S.W.2d at 117–18. The court held the interest was a mineral interest with certain attributes reserved; stripping those attributes did not convert it into a freestanding royalty
interest. Id. at 118–19. In French, a deed granted an undivided fractional interest in minerals “in, under and that may be produced,” while reserving the executive, bonus, and delay-rental rights
and referred to the interest being conveyed as a “royalty interest.” 896 S.W.2d at 796. Reading the instrument as a whole, the court held it conveyed a mineral interest, explaining that when a deed 04-24-00382-CV grants an undivided mineral interest and then removes particular attributes, the result is a non‑executive mineral interest with a floating royalty commensurate with that interest, not a fixed fraction of gross production. Id. at 797–98.
[*9]Under Altman and French, the 1937 deed’s structure denotes a mineral interest stripped of the executive, bonus, and delay-rental rights but retaining the right to receive royalty payments.
Contrast Altman, 712 S.W.2d at 118–19 (holding deed conveyed mineral fee where it contained mineral estate language combined with attribute stripping), and Reed, 534 S.W.3d at 57, 64 (stating that language stripping attributes of mineral estate “would be redundant because a royalty interest owner has no such rights,” and analogizing the stripping language to removing the head and legs of a “mineral bug”), with Watkins v. Slaughter, 189 S.W.2d 699, 700–01 (Tex. 1945) (deed conveyed only royalty interest where it contained some mineral estate language but unequivocally labeled the conveyed interest as a royalty). In other words, the deed reserved a 1/32 “non-executive mineral interest.” See Lesley v. Veterans Land Bd. of State, 352 S.W.3d 479, 487 (Tex. 2011)
(using that label for a mineral interest stripped of the executive right).
2.3 Floating or fixed royalty Having determined that the deed reserved a mineral interest, the remaining question is whether the associated royalty is fixed or floating. There is a presumption that royalty interests are proportionate to the mineral interest conveyed or reserved, absent clear language to the contrary. See Patrick v. Barrett, 734 S.W.2d 646, 648 (Tex. 1987) (citing Benge v. Scharbauer, 259 S.W.2d 166, 168–69 (Tex. 1953)). The deed’s minimum-royalty clause—requiring that “there must be retained by the Lessor a royalty of at least one-eighth (1/8)”—confirms that the grantor’s share is tied to the lessor’s - 10 - 04-24-00382-CV royalty, not to gross production. A fixed royalty is a constant fraction of gross production and, unlike a floating royalty, does not depend on the landowner’s royalty reserved in a mineral lease. U.S. Shale Energy II, LLC v. Laborde Props., L.P., 551 S.W.3d 148, 152–53 (Tex. 2018); Hysaw, 483 S.W.3d at 9–10. If the grantor had reserved a fixed 1/32 royalty measured against all production, the landowner’s royalty fraction in future leases would be irrelevant, and the “at least one‑eighth” language would serve no meaningful purpose. See Garza, 195 S.W.3d at 140, 146 (relying on “at least” one-eighth royalty clause to construe interest as a fraction‑of‑royalty interest); see also Coghill v. Griffith, 358 S.W.3d 834, 839–40 (Tex. App.—Tyler 2012, pet. denied) (same). Construing the deed as reserving a fixed 1/32 royalty would thus render the minimum‑royalty clause surplusage, contrary to the rule that courts must, where possible, give effect to all provisions. See Concord Oil Co. v. Pennzoil Expl. & Prod. Co., 966 S.W.2d 451, 460– 61 (Tex. 1998); Luckel, 819 S.W.2d at 462–63; Hysaw, 483 S.W.3d at 12–13. By contrast, under the mineral‑reservation reading, the royalty payment is calculated as a fractional mineral interest multiplied by the landowner’s royalty. See Laura H. Burney, Interpreting Mineral and Royalty Deeds: The Legacy of the One-Eighth Royalty, 33 ST. MARY’S L.J. [1], 11–17 (2001); Christopher S. Kulander, Fixed vs. Floating Non-Participating Oil & Gas Royalty in Texas: And the Battles Rage On…, 4 TEX. A&M L. REV. 41, 46–51 (2017). Under this view, the “at least 1/8” clause limits the executive leasing authority by requiring that the landowner’s royalty never fall below 1/8. That requirement ensures that the grantor’s 1/32 mineral interest always yields at least 1/256 (1/32 × 1/8) of production—and more if a higher royalty is negotiated. See French, 896 S.W.2d at 798; Graham v. Prochaska, 429 S.W.3d 650, 657 (Tex. App.—San Antonio 2013, pet. denied). This reading thus harmonizes the initial reservation, the - 11 - 04-24-00382-CV attribute‑stripping language, and the minimum‑royalty clause. See Concord Oil, 966 S.W.2d at 457–61; Luckel, 819 S.W.2d at 462–63. We therefore conclude, consistent with the trial court’s declaration, that the 1937 deed reserved a 1/32 non-executive mineral interest with a corresponding floating royalty interest. We next consider Esperanza’s argument that, despite this construction, the presumed-grant doctrine vests them with a fixed 1/32 NPRI. 3 Presumed-grant doctrine Esperanza contends that even if the deed’s text points the other way, it acquired a fixed 1/32 NPRI under the presumed-grant doctrine. Relying on Van Dyke v. Navigator Grp., 668 S.W.3d 353 (Tex. 2023) and Clifton v. Johnson, No. 23-0671, 2026 WL 705763 (Tex. Mar. 13, 2026), Esperanza argues that presumed grant is not confined to strictly possessory interests and that the parties’ long‑standing treatment of the Esperanza interest as a fixed 1/32 NPRI satisfies the doctrine. Van Dyke and Clifton confirm the doctrine’s continued vitality, but they also highlight how demanding its elements are and how sparingly courts have invoked it. Even assuming the doctrine could apply to a royalty interest, Esperanza has not met its requirements. 3.1 The doctrine as a form of adverse possession or prescription The presumed grant doctrine requires proof of: (1) a long‑asserted and open claim, adverse to that of the apparent owner; (2) non‑claim by the apparent owner; and (3) acquiescence by the apparent owner in the adverse claim. Van Dyke, 668 S.W.3d at 366; Clifton, 2026 WL 705763, at *5; Magee v. Paul, 221 S.W. 254, 256–57 (Tex. 1920). - 12 - 04-24-00382-CV In Van Dyke, the Texas Supreme Court described presumed grant—also called title by circumstantial evidence or the lost-grant fiction—as a “common law form of adverse possession” and, after deciding the case on deed construction, alternatively held that the presumed grant doctrine was satisfied by nearly a century of consistent, mutual actions by the parties treating each other as equal mineral cotenants. 668 S.W.3d at 366 (quoting Fair v. Arp Club Lake, Inc., 437 S.W.3d 619, 626 (Tex. App.—Tyler 2014, no pet.)). Clifton emphasized that when the doctrine “clearly applies” a court may dispense with deed analysis entirely but expressly declined to decide whether the doctrine was satisfied, because applying it “would lead to the same result as [their] reading of the deed.” 10 2026 WL 705763, at *6. The doctrine, however, did not originate with Van Dyke and Clifton. It hails from “the common law of England” which was officially adopted by the Texas Legislature in 1836 to the extent it is “not inconsistent with the constitution or the laws of this state.” TEX. CIV. PRAC. & REM. CODE § 5.001(a). That background body of law continues to shape judge-made doctrines like presumed grant. See Butler v. Collins, 714 S.W.3d 562, 566–67 (Tex. 2025) (determining whether certain common law torts were abrogated by enactment of Texas Labor Code); see generally George C. Butte, Early Development of Law and Equity in Texas, 26 YALE L.J. 699, 700 (1917). 3.2 Presumed grant has never been extended to royalty interests Presumed grant operates as an evidentiary presumption in cases involving long, uncontested dominion over land or a clearly exercised use. Esperanza’s attempt to apply it to a royalty interest is novel. It cites no Texas decision presuming a grant of a royalty interest, and we