RER Ventures, LLC and RER Kalvest Investments, LLC v. Softvest, L.P. — Opinion by Justice Palafox

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
————————————
No. 08-24-00303-CV
————————————
RER Ventures, LLC and RER Kalvest Investments, LLC, Appellants
v.
SoftVest, L.P., Appellee
On Appeal from the 112th District Court
Upton County, Texas
Trial Court No. 22-03-U4924-OTH
OP I N I ON
This appeal focusing on deed interpretation asks whether a nonparticipating royalty interest
(NPRI) in one tract of a multi-tract oil-and-gas lease also carries the right to royalties from
production on the other tracts in the lease. We conclude it does, and we affirm.

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I. BACKGROUND
Although the parties’ dispute centers on a 2010 deed, our reading of that instrument is
informed by the broader chain of title, which
traces ownership and related interests from
1951 to 2022. The NPRI at issue was created
and conveyed in a 1951 deed from A.L.
Attaway, grantor, to Mary D. Currie,
grantee. Currie’s NPRI burdens the south
half of Section 116, Upton County, Texas.
In 1954, the mineral estate owners executed
a mineral lease covering the tract and
additional acreage in Sections 12 and 40.1
Currie ratified the lease in 1959. The same
year, Currie conveyed the NPRI to J.H.
Crouch. In 2002, Crouch conveyed all his
mineral or royalty interests in the United
States to a family trust. In 2007, the trustee
conveyed the same interests to a different
family trust, the Ranch 76 Trust. In 2010,
the Ranch 76 Trust conveyed all its mineral and royalty interests in the south half of Section 116
1 The 1954 lease covers the following described land in Upton County: All of Section 12, Block 41, T-5-S, T&P RR
Company Survey, Certificate No. 3481, containing 659 acres, more or less; the North one-half (N/2) of Section 40,
Block 40, T-5-S, T&P RR Company Survey, Certificate No. 3353, containing 327.5 acres, more or less; and the South
one-half (S/2) of Section 116, Block D, CCSD&RGNG RR Company Survey, Certificate No. 798, containing 322.38
acres, more or less.

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to AOG Mineral Partners, Ltd. AOG then conveyed 87.5% of its interests to SoftVest in a deed
with similar terms and the same effective date. The current lessee, Endeavor Energy Resources,
then drilled productive wells in Section 12. In 2022, four days before this lawsuit was filed, the
Ranch 76 Trust executed a quitclaim of any royalty interest it may have retained in Sections 12
and 40 to Appellant RER Ventures, LLC. RER Ventures then assigned that interest to Co-
Appellant RER Kalvest Investments, LLC.
RER Ventures sued SoftVest for a declaratory judgment with respect to the parties’ rights
to the NPRI on both Sections 12 and 40, and for money had and received from revenue on
production from Section 12. Both sides moved for summary judgment on the construction of the
deeds. RER Kalvest was added as a plaintiff on the money-had-and-received claim. The trial court
denied RER Ventures’ motion, granted SoftVest’s traditional and no-evidence motion for
summary judgment in its entirety, and dismissed all claims against SoftVest. RER Ventures and
RER Kalvest (together, RER) jointly appealed.
II. STANDARD OF REVIEW AND APPLICABLE LAW
The parties agree this case involves the construction of unambiguous instruments,
presenting a question of law that we review de novo. See Wenske v. Ealy, 521 S.W.3d 791, 794
(Tex. 2017). In reviewing competing motions for summary judgment, we consider the evidence
presented by both sides, determine all questions presented, and render the judgment the trial court
should have rendered. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000);
see Tex. R. Civ. P. 166a.
When construing an unambiguous deed, “our primary duty is to ascertain the intent of the
parties from all of the language within the four corners of the [instrument].” Wenske, 521 S.W.3d
at 794. “We afford contract language its plain, grammatical, and ordinary meaning unless doing

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so ‘would clearly defeat the parties’ intentions’ or the instrument shows the parties used the terms
in a different or technical sense.” Nettye Engler Energy, LP v. BlueStone Nat. Res. II, LLC, 639
S.W.3d 682, 690 (Tex. 2022). As a limitation, “[w]e cannot employ surrounding facts and
circumstances to make contract language say something it unambiguously does not or to determine
‘that the parties probably meant, or could have meant, something other than what their agreement
stated.’” (quoting URI, Inc. v. Kleberg Cnty., 543 S.W.3d 755, 757 (Tex. 2018)). “Rather, the ‘facts
and circumstances can only provide context that elucidates the meaning of the words employed,
and nothing else,’ and they can only give contract language a meaning to which it is ‘reasonably
susceptible.’” Nettye Engler Energy, 639 S.W.3d at 690.
III. ISSUES ON APPEAL
RER presents two issues on appeal. First, it contends the deed at issue2 limits SoftVest to
royalty on production from the tracts the deed describes, which includes Section 116 but not
Sections 12 and 40. Second, it contends the same result follows from the common-law rule of non-
apportionment and the cross-conveyance doctrine. Overall, RER seeks reversal and remand; while
SoftVest seeks affirmance of the trial court’s take-nothing judgment.
Because the two issues present the same underlying question, we address them together.
IV. DISCUSSION
This appeal requires us to decide whether a deed that conveys royalties in production from
a list of tracts—and the list omits Sections 12 and 40—evidenced an intent to convey a royalty
interest, nonetheless, in the enumerated tracts as well as in Sections 12 and 40.
2 The parties base their analysis on the 2010 conveyance from the Ranch 76 Trust to AOG. AOG subsequently
conveyed 87.5% of the same interest to SoftVest and 2.5% to Wade P. Koehl by deed with the same operative language
and effective date. Because AOG is not a party, we refer to the deed at issue as the “SoftVest deed.”

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We begin with greater detail about our method of construing the deed to ascertain and
effectuate the parties’ intent. We are guided by the Texas Supreme Court’s approach to a similar
question in Wenske, 521 S.W.3d at 792. There, the deed mentioned an outstanding NPRI but the
language did not say whether the royalty burdened the grantor’s reserved interest or burdened the
grantees’ interest instead. Id. at 793. The court of appeals in Wenske had held that because the deed
provided “no guidance” on how to allocate that burden, the “default rule” of proportional sharing
of the burden applied in the circumstance. Id. at 795.
On petition for review, the Supreme Court affirmed the result but faulted the court of
appeals for turning too quickly to a default rule to decide the case. Id. at 795. The Court
distinguished two kinds of rules. It disfavored “mechanical, arbitrary, and arcane rules, which at
one time offered certainty at the expense of effectuating intent,” but had since become “relics of a
bygone era.” Id. at 792, 798. In their place, the Court instructed that courts should look to
“established background principles of oil-and-gas law” as a more reliable guide for ascertainment
of parties’ intent. Id. The Court explained that “parties who draft agreements rely on the principles
and definitions pronounced by [the state’s highest court]” and “rightly depend on [it] for continuity
and predictability in the law, especially in the oil-and-gas field.” Id. The Court then held that the
NPRI burdened the parties in proportion to their mineral interests, in accord with a “basic principle
of mineral conveyance,” that is, both benefits and burdens of a mineral interest pass with the
interest in proportion to ownership unless the parties plainly express a different intent. Id. at 797.
Notwithstanding this principle, the Court still emphasized that, when construing an instrument, the
parties’ intent, plain or not, must be determined first by means of a “careful and detailed
examination of a deed in its entirety” (emphasis added). Id. at 792, 795–96, 798.

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The lesson of Wenske is that the deed’s text comes first, background principles second, and
default rules, if ever, are only relevant as a last resort. We follow that approach here.
A. The granting clause
We begin with the granting clause of the 2010 deed. For ease of discussion, we divide this
clause into identified portions bracketed by numbers from 1 to 3 and italicize phrases most highly
disputed by the parties.
[Grantor AOG Mineral Partners, Ltd.] . . . conveys . . . to . . . [Grantee SoftVest,
LP] . . . Ninety percent (90%) of Grantor’s rights . . . [1] in the oil, gas, and other
minerals in and under, and that may be produced from or pooled with the following
described lands, [2] together with all of Grantor’s interest in all leasehold interests,
royalties and overriding royalties payable out of production from the lands situated
in Upton County, Texas, as described below: [3] SEE ATTACHED EXHIBIT “A”
(emphasis added).
We address each numbered portion in turn.
(1) “Pooled with” (the first part)
Focusing on the first portion of the granting clause, it describes the interest conveyed:
[1] in the oil, gas, and other minerals in and under, and that may be produced from or
pooled with the following described lands,
SoftVest contends the phrase “or pooled with” clearly extends the grant to royalty from the entire
area covered by the community lease, or Sections 12, 40, and 116. The premise of SoftVest’s
argument is that “pooled with” and “leased with” are synonymous. Standing on that premise, we
disagree with SoftVest’s interpretation of the granting language.
“Pooled” is a term of art referring to joinder of tracts under multiple prior leases by a
common lessee, and in some cases by the Railroad Commission. Key Operating & Equip., Inc. v.
Hegar, 435 S.W.3d 794, 798 (Tex. 2014). A lessee may pool acreage only in accord with the
purposes and methods specified in each lease—typically, to prevent waste or to meet Railroad
Commission rules pertaining to well spacing and density. Se. Pipe Line Co. v. Tichacek, 997

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S.W.2d 166, 170 (Tex. 1999); Hegar, 435 S.W.3d at 798 (recognizing that pooling is “one method
to prevent waste”); R.R. Comm’n of Texas v. Opiela, 681 S.W.3d 397, 407 (Tex. App.—Austin
2023), vacated by agr., No. 23-0772, 2025 WL 351569, at *1 (Tex. Jan. 31, 2025).3 Thus, in accord
with established industry usage, “pooled” has a different meaning from “leased together.”
SoftVest cites Ruiz v. Martin, 559 S.W.2d 839, 842 (Tex. App.—San Antonio 1977, writ
ref’d n.r.e.), for the proposition that ratification of the 1954 lease “constituted actual pooling” of
all three Sections as a matter of law. But Ruiz did not equate ratification of a lease with pooling. It
held, more narrowly, that a royalty owner’s ratification of a community lease—a lease, such as the
1954 lease, executed by separate owners of multiple tracts—was “effective to pool the royalties.”
Id. at 844. The Supreme Court has since explained that pooling and community leasing share the
same primary legal effect despite differences in the mechanics of their formation and in their
secondary effects. Samson Expl., LLC v. T.S. Reed Props., Inc., 521 S.W.3d 766, 774, 777 & nn.27,
34 (Tex. 2017).4 Reported decisions both before and after the 1954 lease confirm that community
leases have used the term “pooled” to both describe that shared effect, see Brown v. Smith, 174
S.W.2d 43, 44–45 (Tex. 1943) (community lease provided that royalties “are to be pooled and
shared”), and to negate it, see London v. Merriman, 756 S.W.2d 736, 740 (Tex. App.—Corpus
Christi 1988, writ denied) (“no pooling or unitization of royalty interest . . . is intended or shall be
implied or result merely from the inclusion of such separate tracts within this lease”). These cases
further demonstrate that pooling and community leasing are not synonymous. The phrase “or
3 Rule 40 clarifies that a lessee “may pool acreage, in accordance with appropriate contractual authority and applicable
field rules, for the purpose of creating a drilling unit or proration unit by filing an original certified plat delineating
the pooled unit and a Certificate of Pooling Authority” with the Railroad Commission. 16 Tex. Admin. Code pt. 1
ch. 3 § 3.40(a) (2025) (R.R. Comm’n of Tex., Assignment of Acreage to Pooled Development and Proration Units).
Pooling provisions generally require filing a declaration of the unit in the property records. Union Gas Corp. v. Gisler,
129 S.W.3d 145, 150 (Tex. App.—Corpus Christi 2003, no pet.).
4 See 16 Tex. Admin. Code pt. 1 ch. 3 § 3.40(a) (2025) (describing formal requirements for pooling).

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pooled with” thus provides some, but not conclusive evidence that the grantor intended the deed
to convey royalty from the entire area covered by the community lease.
Additional context is provided by a reading of the full sentence in which “or pooled with”
appears: “Grantor . . . conveys . . . Grantor’s rights . . . in the oil, gas, and other minerals in and
under, and that may be produced from or pooled with the following described lands . . . .”
(emphasis added). RER argues that “in and under, and that may be produced from” reflects
language describing a mineral interest, see Barker v. Levy, 507 S.W.2d 613, 615 (Tex. App.—
Houston [14th Dist.] 1974, writ ref’d n.r.e.), and thus has no bearing on the royalty interest at issue.
SoftVest responds without evidence that its NPRI is part of a mineral interest that was also
conveyed by the deed.
Even if the clause could be construed to describe the NPRI, the use of “or pooled with”
within the phrase “that may be produced from or pooled with” suggests different interpretations
that support either party. On the one hand, a grammatically correct version of the phrase—
“minerals in and under, and that may be produced from the following described lands or lands
pooled therewith”—has been held to describe a mineral interest with a right to royalty from pooled
tracts.5 On the other hand, the clause here could be construed to convey only the minerals under
the described tracts, and to clarify that the grantee is entitled to its proportionate share of any
production by the lessee notwithstanding any pooling. In sum, the first portion of the granting
clause offers some, but not clear, support for a conveyance of royalty outside Section 116. We turn
to the second portion of the granting clause, which does address royalties.
5 See Spradley v. Finley, 302 S.W.2d 409, 410 (Tex. 1957) (holding “produced from said lands above described” in a
mineral deed “clearly” referred only to minerals produced from the described lands but that “or land with which said
land is pooled hereunder”—an additional phrase used in a subsequent lease signed by the grantor—effectively
modified the deed to encompass production from pooled tracts).

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(2) The royalty grant (the second part)
The second portion of the granting clause, on which RER largely focuses its argument,
describes an additional grant:
[2] together with all of Grantor’s interest in all leasehold interests, royalties and
overriding royalties payable out of production from the lands situated in Upton
County, Texas, as described below[.]
This portion specifically addresses the type of interest at issue in this case—royalties. Unlike the
first portion, it specifies the location of the interest only by reference to the described lands, without
the phrase “or pooled with.” RER reads this language to clearly limit the royalty conveyed to the
lands “as described below.” SoftVest responds that it merely confirms, in abbreviated form, the
pooled royalty already conveyed as an incident of the mineral estate. RER counters that this
reading would render the second portion surplusage. Although we avoid surplusage where
possible, courts also recognize that drafters often include redundant language for emphasis, Whole
Woman’s Health v. Jackson, 642 S.W.3d 569, 582 (Tex. 2022), particularly in the royalty
provisions of mineral deeds, see Schlittler v. Smith, 101 S.W.2d 543, 544
(Tex. [Comm’n Op.] 1937). The second portion likewise provides little guidance as to the
grantor’s intent regarding royalty outside Section 116. We turn to the final portion of the granting
clause.
(3) Exhibit A (the final part)
The third portion of the granting clause says:
[3] SEE ATTACHED EXHIBIT “A”
Exhibit A is referenced by the preceding two portions of the granting clause. The first
portion conveys any interest in minerals in and under or pooled with “the following described

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lands,” while the second portion grants whatever interest in royalties from “the lands situated in
Upton County, Texas, as described below.”
The entirety of Exhibit A provides as follows:
EXHIBIT “A”
Attached and made a part of that certain conveyance from AOG Mineral Partners,
Ltd., as Grantor, and SoftVest LP et al, as Grantee
1. S/2 and NW/4 of Section 38, Block B, Certificate 12, A-754, TC Ry. Co.
Survey;
2. Section 22, Block B, Certificate 882, A-957, HE&WT Ry. Co. Survey;
3. S/2 Section 116, Block D, CCSD&RGNG Ry. Co. Survey, Certificate 798;
4. Section 9, Block A, CCSD&RGNG Ry. Co.;
5. N/2 NE/4 and SW/4 NE/4 of Section 4, Block Y, GC&SF Ry. Co.
Survey[.]
As shown above, Exhibit A lists several unrelated tracts not otherwise included in the 1954
lease, without indicating which of the four interests named in the granting clause—mineral
interests, royalties, overriding royalties, and leasehold interests—were held in each tract. Nor does
Exhibit A indicate whether any tract had been pooled with other tracts, or which tracts lie in Upton
County. These additional tracts thus raise at least two possibilities. If the grantor owned only
royalty interests in Upton County, the grant of minerals would be surplusage; if it owned mineral
interests or interests outside Upton County, the grant could be given effect as conveying those
interests. Moreover, the tracts are listed in a separate exhibit, a short list that could have been
included in the deed itself. That structure cautions against overreliance on the precise wording of
the granting clause, suggesting the parties used general language to cover a heterogeneous list of
interests. See Occidental Permian, Ltd. v. Citation 2002 Inv., LLC, 689 S.W.3d 899, 905
(Tex. 2024) (reconciling similar discrepancies between exhibit and granting clause).

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Because we are instructed to harmonize all of the deed’s language, we turn to the deed’s
remaining clauses for any further indication of the parties’ intent.
B. Remaining clauses of the deed
(1) The subject-to clause
The subject-to clause provides that the deed is subject to existing and future leases and
reiterates that the grantee is entitled to receive “all bonuses, rents, royalties, and other benefits
which may accrue to the Conveyed Interests . . . precisely as if Grantee had been . . . the lessor.”
SoftVest contends the clause further confirms and expounds on the interests conveyed by the
granting clause, specifically royalties from tracts owned by other lessors of the 1954 lease. But as
RER notes, the term “Conveyed Interests” is defined as the interests conveyed in the granting
clause. Given this reference back to the granting clause, the subject-to clause does not clearly
identify different interests than already described in the granting clause. The Texas Supreme Court
has cautioned against overreading subject-to clauses in that manner. See Wenske, 521 S.W.3d at
797 (holding subject-to clause indicated an intent to avoid a breach of warranty rather than an
attempt to reallocate royalties as indicated by the granting clause). Moreover, SoftVest’s
predecessor was not “the lessor” but one of three lessors. In sum, the subject-to clause offers some,
but not clear, support for a conveyance of royalty outside Section 116.
(2) The habendum clause
The deed continues with a standard habendum clause describing a perpetual grant to
grantee of “the Conveyed Interests with all and singular the rights, privileges and appurtenances
thereunder or anywise belonging[.]” Again, the clause refers back to the definition of Conveyed
Interests and does not specifically refer to royalties from leased acreage that is not described in the
deed. Whether such royalties are appurtenant to an NPRI in the described land simply restates the

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question before us. Taken together, the text of SoftVest’s deed does not clearly indicate whether
the royalty from leased acreage outside Section 116 was conveyed to SoftVest. Because the deed’s
text does not resolve the question, we turn to the surrounding instruments offered by the parties to
provide context and to aid our understanding of the deed’s language.
Every prior deed in both chains of title uses materially identical language. We have noted
that an appurtenances clause is a placeholder that “fails to identify what those rights and
appurtenances are,” so we look to principles of real property law and Supreme Court precedent for
guidance in defining similar rights. Anadarko Petroleum Corp. v. BNW Property Co., 393 S.W.3d
846, 849–52 (Tex. App.—El Paso 2012, pet. denied) (citing Day & Co. v. Texland Petroleum, Inc.,
786 S.W.2d 667, 669 (Tex. 1990)). Because it does not identify what is appurtenant to the NPRI,
the habendum clause provides no additional guidance as to the grantor’s intent.
C. The surrounding instruments
Both parties rely on evidence in support of their positions. The summary judgment
evidence includes an undisputed chain of title, divided into two groups: a series of form deeds,
dated from 1951 and 1959; and a series of typed deeds, dated in 2002, 2007, and 2010, which
include incremental modifications as to the parties and tracts involved. Each deed in the chain of
title is made expressly subject to existing or future leases, and the 1954 lease was ratified by the
parties’ common predecessor in 1959, shortly before the NPRI was conveyed to J.H. Crouch.
SoftVest bases its claim to royalties from the entire leased acreage on its 2010 deed, while RER
relies on a subsequent 2022 quitclaim deed from the same grantor. RER asks that we disregard the
2010 deed to SoftVest because it omits the “communitized” royalty language found in both the
preceding 2002 and 2007 Crouch family-trust deeds and the later 2022 quitclaim from the trustee
to RER.

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We may consider preceding instruments referenced in a chain of title and documents
surrounding a deed’s execution, to the extent they “may ‘aid the understanding of an unambiguous
contract’s language,’ ‘inform the meaning’ of the language actually used, and ‘provide context
that elucidates the meaning of the words employed.’” Piranha Partners v. Neuhoff, 596 S.W.3d
740, 749 (Tex. 2020).6 Subsequent instruments are normally only relevant to the doctrine of
presumed grant, which no party raises here. Clifton v. Johnson, 733 S.W.3d 16, 21 (Tex. 2026).
Because the 2022 quitclaim from the trustee to RER postdates the deed at issue, we do not consider
it as evidence of what the trustee conveyed in 2010.
The first four deeds executed in the 1950s expressly limit the NPRI to the described tracts.
The NPRI was initially carved out of the mineral estate by means of a 1951 deed granting an
interest in royalties “in so far as the hereinbefore described land only is concerned” (emphasis
added).7 Three Pound Printing & Stationery Company form deeds follow, each conveying a royalty
interest in production from the described tract and providing royalty from any lease “only insofar
as it or they cover the above described land” (emphasis added). The last of the form deeds was
executed to J.H. Crouch shortly after the grantor ratified the lease in 1959.
The next three instruments are deeds conveying numerous interests from Crouch to the
family trusts, executed 40 years after he acquired the NPRI. The 2002 deed expressly conveys
6 See also Davis v. COG Operating, LLC, 658 S.W.3d 784, 791 (Tex. App.—El Paso 2022, pet. denied) (considering
preceding mineral deed to determine scope of royalty deed); cf. Posse Energy, Ltd. v. Parsley Energy, LP, 632 S.W.3d
677, 693 (Tex. App.—El Paso 2021, pet. denied) (considering both prior and subsequent deeds to “confirm,” but not
ascertain, scope of appurtenant rights); see also Texas Dep’t of Transp. v. A.P.I. Pipe & Supply, LLC, 397 S.W.3d
162, 169 (Tex. 2013) (explaining that “[a]ny description, recital of fact, or reference to other documents” puts a grantee
on notice of “the whole series of title deeds”) (emphasis in original).
7 The granting clause provides: “[G]rantors . . . grant . . . an undivided 1/32 interest in and to all (8/8) of the oil, gas,
casinghead gas and other hydro-carbons in and under and that may be produced from the following described land
situated in the County of Upton . . . [in] Section No. 116 . . . said undivided 1/32 interest being equivalent to 1/4 of
the usual and customary 1/8 royalties in oil, gas, casinghead gas and other hydro-carbons, and to come out of the
royalties that accrue . . . under any . . . lease on the hereinbefore described land, in so far as the hereinbefore described
land only is concerned. It is understood and agreed that said undivided 1/32 interest conveyed is a royalty interest only
. . . .”

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interests in royalties and “communitization agreements,”8 and states at the bottom of Exhibit A
that the grantor intends to convey all such interests “OWNED BY GRANTOR WHEREVER LOCATED IN THE
UNITED STATES, WHETHER CORRECTLY OR INCORRECTLY DESCRIBED ABOVE OR OMITTED IN ITS
ENTIRETY.” A subject-to clause in that deed, however, clarifies that the conveyance is intended to
include all royalties under any lease “precisely as if the Grantee herein had been at the date of
making said lease and/or leases the owner of a similar undivided interest in and to the Property
and none other and Grantee one of the lessors therein” (emphasis added). The same language
appears in a 2007 conveyance to a family trust. The 2010 deed from AOG to SoftVest, by contrast,
eliminates all of that language, replacing the broad Exhibit “A” statement with9 the text,
“intentionally left blank.”10
Although the 2002 and 2007 deeds provide some support for RER’s argument that the deed
at issue deliberately omitted communitized royalty, the preceding deeds contradict that argument
by expressly limiting the NPRI to Section 116. To the extent RER’s 2022 quitclaim deed is
relevant, it shows that the royalty from other tracts could have been specified in all the preceding
deeds, but it was not. We are hesitant to place dispositive weight on the absence of language in
one deed that does not appear in any of the standard form deeds in both parties’ chains of title.
8 The granting clause provides: “Grantor . . . does hereby GRANT . . . all of Grantor’s undivided interest, in and to all
the oil, gas and minerals, including, but not limited to, mineral interests, royalty interests, overriding royalty interests,
interests in oil and gas leases, oil, gas and mineral leases, [sic] working interests, unit agreements, pooling agreements,
communitization agreements, and production payments in, on, under and produced from all lands in which Grantor
owns an interest located in the United States of America, including, but not limited to, those certain lands and leases
described on Exhibit “A.”
9 RER also points to its own quitclaim deed—executed four days before this suit was filed—purporting to convey
“any royalty interest on oil, gas, and other minerals produced from or attributable to” the portions of the lease area
outside Section 116. RER also points to a SoftVest deed with a subsequent deed conveying a 10% interest in “all
rights in any pooled or unitized acreage by virtue of the [NPRI] being a part thereof.”
10 This deed conveys a 10% interest in the NPRI to SoftVest’s former co-defendant Franco-Nevada. SoftVest itself
only acquired an 87.5% interest.

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Indeed, the long and unbroken chain of standard form deeds on which both parties rely lends some
support to SoftVest’s position that the NPRI was never confined to Section 116.
D. The common law rule
(1) The cross-conveyance doctrine
We turn to the cross-conveyance doctrine, a common-law rule that both parties invoke to
clarify the grantor’s intent. Under the cross-conveyance doctrine, owners of separate tracts who
sign a community lease are treated as “joint owners, or joint tenants, of all royalties reserved in
each of the several leases in such block, the ownership being in the proportion which the acreage
of each lease contract bears to the total acreage of the unitized block.” Veal v. Thomason, 159
S.W.2d 472, 476 (Tex. 1942).
The parties agree that Currie’s 1959 ratification of the lease effected a cross-conveyance,
vesting Currie with an interest in production from the entire lease area in proportion to her
contributed acreage for the duration of the lease. SoftVest contends that this interest passed intact
through each deed in the chain of title, each describing a royalty interest in Section 116, down to
the 2010 deed from AOG to SoftVest. RER contends the 2010 deed conveyed only an interest in
Section 116 burdened by the other owners’ shares but without the corresponding benefit of a pro
rata share of production from other tracts. RER bases this asymmetric result on a literal
interpretation of cross-conveyance, under which Currie was vested with distinct interests in
Sections 12 and 40. Because those interests are separate from the interest in Section 116, RER
reasons that the 2010 conveyance of the interest in the described Section 116 tract did not include
the interests in the other tracts.
RER’s argument is contrary to the premise of cross-conveyance: each party obtains an
undivided interest in the unitized block. Veal, 159 S.W.2d at 476. That undivided interest carries

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symmetric benefits and burdens: each lessor “relinquishes his right to have his own tract separately
developed, his right to receive all of the royalties from production from wells on his own tract, and
his right to have wells drilled on his tract off-setting other wells on the leased premises, and each
gains the right to share proportionately in royalties from wells on the other included tracts”
(emphasis added). Southland Royalty Co. v. Humble Oil & Refining Co., 249 S.W.2d 914, 916
(Tex. 1952). Each contributed interest is at once benefited and burdened—benefited by the
proportionate share of royalty on every tract, and burdened by the other owners’ shares of the
royalty on its own. Here, Currie’s ratification of the community lease placed her royalty interest
in Section 116 into the unitized block. She relinquished the right to receive all of the royalty from
production on Section 116 and gained, in exchange, the right to share proportionately in royalty
from production on Sections 12 and 40. The benefit and burden were created together, exist on the
same terms, and exist for the same duration. The cross-conveyance doctrine thus supports the
conclusion that the contributor’s share in royalty from the other tracts is included in the
contributor’s interest in the burdened tract and passes with a conveyance of that tract unless the
conveyance says otherwise.
In weighing that doctrine, we are mindful of the Texas Supreme Court’s instruction in
Wenske that our paramount duty is to ascertain the parties’ intent from the four corners of the
instrument; and to avoid quick resort to default or arbitrary rules of construction. 521 S.W.3d at
794. The cross-conveyance theory is more arcane, and less well established, than the definition of
minerals and the “basic principle of mineral conveyance” on which the Court there relied. The
Texas Supreme Court most recently gave the doctrine only tentative support in Samson, describing
it as a theory “of presumed contractual intent.” Samson Expl., 521 S.W.3d at 776–77 (citing
BRUCE M. KRAMER & PATRICK H. MARTIN, THE LAW OF POOLING AND UNITIZATION § 19.02[2][d]

17
(3d ed. 2016)). The Court observed that the doctrine “do[es] not exist in the abstract” but has been
invoked to resolve discrete questions—venue, indispensable parties, authority to pool, and the
statute of frauds. Id. at 777–78 & nn.34–35. As to the question before it, the Court found the theory
a “theoretical construct that holds no water.” Id. Samson involved a claim brought against a lessee
for payment of pooled royalty under the express terms of the lease, rather than a claim to apportion
royalty among the owners under a deed that did not specifically address the matter.
The doctrine is less well established in this context for a further reason. Two of our sister
courts have reached the opposite conclusion on this question, holding that royalty from tracts under
a common lease not described in a deed does not pass with the conveyance of a royalty interest.
McCall v. McCall, 24 S.W.3d 508, 514–16 (Tex. App.—Houston [1st Dist.] 2000, pet. denied);
Aery v. Hoskins, Inc., 493 S.W.3d 684, 698–704 (Tex. App.—San Antonio 2016, pet. denied). In
Aery, the instrument included a provision expressly incorporating the cross-conveyance doctrine.
Both courts relied on a West Virginia case, Avery v. Moore, 144 S.E.2d 434 (W. Va. 1965), and
Texas cases involving other types of appurtenances.11 Neither Aery nor McCall explained how
their holdings accorded with Texas’s principles of cross-conveyance and appurtenant mineral
rights. By contrast, the Mississippi Supreme Court, applying Texas cross-conveyance law, treated
royalty under a community lease as appurtenant to the conveyed tract. Merrill Eng’g Co. v. Capital
Nat’l Bank of Jackson, 5 So.2d 666, 671–73 (Miss. 1942).
Following Wenske, we consider whether a more basic principle resolves the question.
Wenske rested on the established definition of minerals and on a basic principle of mineral
11 Avery held that a deed to one partitioned tract did not convey the grantor’s undivided cotenancy interest in the oil
and gas under the other partitioned tracts. 144 S.E.2d at 434. We note that both McCall and Aery involved tracts that
were partitioned, although this fact of partition was not considered in connection with the question of whether the
grantor intended the royalty to pass with the later conveyance. Both involved royalty shared across separately owned
tracts under a common lease—a lease jointly executed by cotenants in McCall, 24 S.W.3d at 510–12, and by express
cross-conveyance in a partition and royalty agreement in Aery, 493 S.W.3d at 694–95.

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conveyance: a mineral interest ordinarily carries a proportionate share of royalty and a
proportionate share of any outstanding royalty burden. Wenske, 521 S.W.3d at 797. We note that
the interest here is not a mineral interest but an NPRI, and the disputed right is only a right to
royalty on production from other tracts for the life of the lease. Texas has long recognized that an
NPRI is an interest in real property. We further note that the royalty at issue is limited to royalty
under the 1954 lease and is limited in duration to the terms of that lease. The Supreme Court,
however, has held that a nonexecutive term interest in part of a larger leased tract carried a
proportionate share of lease proceeds from production anywhere on the leased acreage, and that
this right was an interest that expired with the term interest. Minchen v. Fields, 345 S.W.2d 282,
285, 287–88 (Tex. 1961). The Court did not explain why the interest in one tract carried the right
to proceeds from production on the others; it treated the point as a given. Id. at 287–88. We note
as well that commentators on Texas oil and gas law have long assumed the same as to the question
presented here: that a conveyance of royalty in land subject to a community lease carries the
grantor’s share of royalty from the other tracts.12 That understanding is consistent with both the
cross-conveyance doctrine and the basic principle of mineral conveyance recognized in Wenske.
It follows that, absent language to the contrary in the deed to SoftVest, the conveyance of the NPRI
included royalty from all tracts under the lease.
(2) The absence of contrary language
We consider, finally, whether the deed plainly expresses an intent contrary to the principle
just described, that royalty in one tract under a community lease carries royalty from the others.
Nothing in the granting clause, Exhibit A, the subject-to clause, or the habendum clause plainly
12 See William O. Huie, Apportionment of Oil and Gas Royalties, 78 Harv. L. Rev. 1113, 1137 (1965); Joseph J.
French, Jr. & Frank W. Elliott, Jr., The Legal Effect of Voluntary Pooling and Unitization: Theories and Party
Practice, 35 Tex. L. Rev. 401, 415–16 (1957); Charles C. Loveless, Jr., Oil and Gas—Community Lease—Nature of
Community Lessors’ Royalty Interest, 25 Tex. L. Rev. 315, 316–17 (1947).

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expresses a contrary intention. See Wenske, 521 S.W.3d at 797. Each of the isolated phrases that
RER relies on can be construed as consistent with that principle when read in context—particularly
in the context of the prior deeds in the chain of title on which RER bases its claim. By RER’s own
argument, the omission of descriptions of other tracts in the printed form deeds left all the parties’
common predecessors since 1951 out of the chain of title as to royalty from other tracts under
lease, which would require rendition of judgment that neither party owns such royalty.13 No party
seeks that result.
Furthermore, the 2002 and 2007 deeds that RER cites as demonstrating a deliberate
omission make only a passing reference to “communitization agreements” in a laundry list that
includes “mineral interests, royalty interests, overriding royalty interests, interests in oil and gas
leases, oil, gas, and mineral leases, working interests, unit agreements, pooling agreements,
communitization agreements and production payments.” By RER’s argument, even that
exhaustive language would not suffice because it fails to specifically describe the leased tracts.
In construing similar instruments that fail to clearly allocate royalty, the Texas Supreme
Court has approached the issue from a “utilitarian standpoint,” mindful of “the particular business
activity sought to be served,” and has avoided an unduly literal construction of isolated phrases.14
RER’s theory would require grantors to separately describe every tract in which the grantor holds
13 RER appeals the trial court’s denial of its motion for summary judgment as to ownership, asking the trial court to
declare “the parties’ respective rights.” RER asked the trial court not only for an affirmative declaration of ownership
based on its chain of title but a declaration that the NPRI was not conveyed to SoftVest. On appeal it asks ambivalently
that we “render judgment in favor of Appellants on their claim for declaratory judgment, and remand for further
proceedings.” The trial court refused all declarations requested by RER, but issued a final judgment granting
SoftVest’s motion, supported by the same evidence of title, decreeing that RER’s claim for declaratory judgment “to
declare the conveyance . . . to [] SoftVest . . . did not include any non-participating royalty interest in Section 12” was
dismissed.
14Endeavor Energy Res., LP v. Energen Res. Corp., 615 S.W.3d 144, 148 (Tex. 2020); Burlington Res. Oil & Gas Co.
LP v. Texas Crude Energy, LLC, 573 S.W.3d 198, 203 (Tex. 2019); see also Devon Energy Prod. Co., L.P. v.
Sheppard, 668 S.W.3d 332, 343 (Tex. 2023); Nettye Engler Energy, LP v. BlueStone Nat. Res. II, LLC, 639 S.W.3d
682, 691–92 (Tex. 2022); BlueStone Nat. Res. II, LLC v. Randle, 620 S.W.3d 380, 387 (Tex. 2021); U.S. Shale Energy
II, LLC v. Laborde Props., L.P., 551 S.W.3d 148, 151 (Tex. 2018).

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related royalty rights, including pooled units comprising numerous tracts. Judging by the various
printed and typed deeds on which RER bases its claim, such a requirement would appear contrary
to settled expectations.15
Our holding does not prevent a grantor of a royalty interest from retaining royalty from
other tracts under lease; as with any attribute of a conveyed mineral interest, the grantor need only
plainly express that intention. See Wenske, 521 S.W.3d at 797. The deed before us expresses no
such intention. We hold that the 2010 deed conveyed to SoftVest the grantor’s share of royalty
from all tracts subject to the 1954 lease, and we overrule both of RER’s issues.
V. CONCLUSION
Having overruled both of RER’s issues, we affirm the trial court’s judgment.
GINA M. PALAFOX, Justice
October 20, 2026
Before Salas Mendoza, C.J., Palafox, and Soto, JJ.
Soto, J., concurring
15 See Christopher S. Kulander, Conveying Pooled Mineral Interests and the Curious Case of Aery v. Hoskins, Inc.,
14 Tex. J. Oil Gas & Energy L. 63, 84–90 (2019) (criticizing Aery for holding that drafters must describe all tracts,
“not just the lease itself and (perhaps) the land originally leased, which most certainly is not industry custom and
practice”; “the lesson [of Aery] is clear: if you intend to assign all of a pooled royalty interest derived from a mineral
fee, do not rely on industry custom and practice in relation to the assignment of oil and gas leases, but instead describe
all lands over which the royalty covers, and not just the original mineral fee prior to pooling”); see also 3 WILLIAMS
& MEYERS, OIL AND GAS LAW § 660 (2025) (noting the preferable view is that it is not necessary to specify pooled or
unitized tracts in deeds, but to address “uncertainty in some states,” advising drafters to “include in any conveyance
affecting premises included in a pooling, unitization or joint operating agreement [an] express provision concerning
the grantor’s interest in production from other premises included in such agreement”).