It seems to be fairly well settled that you can’t use trespass-to-try-title to recover a nonpossessory royalty interest in Texas. What if you call the interest a “mineral interest stripped of every attribute except the right to receive royalty”? The result is the same; you can’t.
In Devon Energy Production Company, L.P. v. McClure Oil Company, a Texas appellate court held that parties seeking title to a nonpossessory interest must pursue declaratory relief, not trespass-to-try-title claims (which we will refer to as TTT). This procedural miscalculation proved fatal for nearly all parties who prevailed at the trial court. Deficiencies in the movants’ pleadings undermined the relief they obtained.
Competing Deeds
The dispute originated from two 1928 deeds from J.V. Heyser concerning mineral interests in five Glasscock County sections:
- the “Dean Deed” (January 17, recorded February 14), conveyed a 3/8ths interest in oil, gas, and other minerals to Dean;
- the “Boston Deed” (February 1, recorded February 4), conveyed Heyser’s remaining interest to Boston, reserving a 3/8ths NPRI and rentals under existing oil and gas leases and a 3/8ths NPRI of the standard 1/8th royalty on future leases.
Operator Laredo Petroleum (now Vital Energy) interpleaded royalties due to uncertainty over which deed controlled and how to calculate the Boston reservation’s royalty. The Boston Deed reserved a double‑fraction NPRI and current leases paid more than 1/8th. So, should the NPRI be calculated as fixed or floating?
Many successors in title joined the litigation, tracing title through one deed or the other.
- The Dean Deed successors sought to recover their mineral estates.
- The Boston Deed successors sought bona‑fide‑purchaser protection under the Texas recording acts and argued that the Boston Deed could not convey interests already granted to Dean.
After a marathon of summary judgment filings determining deed priority, construing the Boston reservation, adjudicating TTT claims and defenses, and awarding ownership interests—the trial court held the Dean Deed (first-executed, second-recorded) prevailed over the Boston Deed, rejected the Boston Deed successors’ affirmative defenses, and granted title and royalty rights to the Dean Deed successors.
A strategy gone wrong
Dean Deed successor SH Permian’s deed-priority MSJ argued explicit alternative theories: TTT if the Dean Deed prevailed, declaratory relief if the Boston Deed prevailed. Despite opportunities to correct course, including the trial court’s invitation to “clean up [its] pleadings,” SH Permian maintained its position.
The Dean Deed appellees – winners at the trial court – ultimately asserted claims for trespass to try title only, if the Dean Deed prevailed, and thoroughly briefed their positions before and after the deed-priority ruling. Thus, when the trial court ruled the Dean Deed took priority, those parties were bound by the parameters of the order that locked in the trespass-to-try-title theory.
The defect surfaced at final judgment. SH Permian asserted it owned “a mineral interest equal to an undivided 1/8th royalty interest,” while Devon claimed “an undivided 4% floating royalty interest.” Through summary judgment grounded in their trespass‑to‑try‑title pleadings, the trial court awarded the Dean parties nonpossessory interests.
Procedural Mismatch
On appeal by the Boston Deed successors the appellate court determined that the prevailing parties’ pleadings failed to support the nonpossessory interests awarded in the trial court’s partial summary judgment favoring the Dean Deed.
The court emphasized the procedural mismatch, reminding the parties (and anyone reading this blog) that TTT is generally not the appropriate action to be asserted when recovery is for nonpossessory interests. TTT requires possession. No possession = no trespass.
The court rejected arguments that the error was harmless. Even when characterized as “mineral interests stripped of every attribute except the right to receive royalty”, the interests at issue were “in the nature of a royalty”. Such interests cannot support possessory remedies, regardless of how they’re labeled.
The dominos fall
Once the trial court had ruled on deed priority based on TTT claims, that determination infected all subsequent proceedings. Even when SH Permian later attempted to amend its pleadings to add declaratory relief two and a half years late ( one imagines after a few sleepless nights), the court denied the motion; the amendment came too late to cure the deficiency.
The “pleadings‑relief” deficiency cascaded through the litigation, affecting the other Dean-Deed appellees as well. Devon Energy “hitched its wagon to SH Permian’s filings” by joining the deed-priority motion, and the “Birds parties” adopted SH Permian’s pleadings throughout. Vital later acquired a portion of another parties’ claimed interest and reentered the case but sought the interest through TTT.
The appellate court reversed and remanded on all issues—deed priority, affirmative defenses, and title determinations. Only one Dean Deed successor escaped reversal because its pleadings matched its prayer.
Your musical interlude.
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