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March 13, 2026 Get Citation Alerts Download PDF Add Note

Cale Andrew Clifton, Christopher Matthew Clifton, Pamela Parker Clifton, Cog Operating, LLC, Desert Partners IV, Lp, Kelli Clifton Gossmann, Lambert Land Co., LLC, Viper Energy Partners Lp, McCamey Farm & Ranch, Lp, Kathy Parker in Her Capacity as Independent of the Estate of J. Loyd Parker, III, Springwood Mineral 4, Lp, Robin Lee Young, Young Oil and Gas, Lp and Lake Ranch, Lp v. Scott W. Johnson and Florence H. Cummings

Texas Supreme Court

• Citations: None known
• Docket Number: 23-0671
• Judges: Young

• Disposition: The Court reverses the court of appeals' judgment and reinstates the trial court's judgment.

• Opinion

• Authorities (5)

• Cited By (0)

• Summaries (0)

• Similar Cases (24.4K)

• PDF

Disposition

The Court reverses the court of appeals' judgment and reinstates the trial court's judgment.

Lead Opinion

                        by [Evan Andrew Young](https://www.courtlistener.com/person/15418/evan-andrew-young/)

Supreme Court of Texas
══════════
No. 23-0671
══════════

Cale Andrew Clifton, Christopher Matthew Clifton, Pamela
Parker Clifton, COG Operating, LLC, Desert Partners IV, LP,
Kelli Clifton Gossmann, Lambert Land Co., LLC, Viper Energy
Partners LP, McCamey Farm & Ranch, LP, Kathy Parker in her
capacity as independent executor of the estate of J. Loyd Parker,
III, Springwood Mineral 4, LP, Robin Lee Young, Young Oil and
Gas, LP and Lake Ranch, LP,
Petitioners,

v.

Scott W. Johnson and Florence H. Cummings,
Respondents

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

Argued December 2, 2025

JUSTICE YOUNG delivered the opinion of the Court.

This oil-and-gas case involves the two issues addressed in Van Dyke
v. Navigator Group, 668 S.W.3d 353 (Tex. 2023)—double fractions and the
presumed-grant doctrine. The parties dispute 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). When “1/8” is part of a double fraction in an
antiquated mineral conveyance, courts presume that it refers to the entire
interest. But Van Dyke repeatedly emphasized that this “presumption is
readily and genuinely rebuttable.” Id. at 364. We hold that this deed’s
plain language rebuts the presumption by showing that the parties used
1/8 for its ordinary numerical value, not as a term of art. Because the court
of appeals held otherwise, we reverse its judgment and reinstate the trial
court’s summary judgment that the deed conveyed a fixed 1/128 interest.

I

In May 1951, J.B. Young, Elizabeth Cornell, and H.D. Cornell
executed a deed with Y.H. Holcombe and Dr. J. Marvin Rape. At the top
of the document, someone crossed out the typewritten “Mineral Deed” and
handwrote “Royalty Deed.” The deed conveyed “an undivided one-one
hundred and twenty-eighth (1/128) interest in and to all of the oil, gas and
other minerals in and under” described tracts of land in Reeves County.
The deed further provided:

It is understood and herein stipulated that said land is under
oil and gas leases providing for a royalty of 1/8 of the oil and
certain royalties or rentals for gas and other minerals and
that Grantees herein shall received [sic] one-sixteenth (1/16)
of the royalties provided for in said lease insofar as the same
cover the above described land, but Grantees shall have no
interest in or be entitled to nor be entitled to receive any part
of any rentals paid under said leases, nor shall the Grantees
have any interest in any bonus money received by the
Grantors, their heirs or assigns, in any future lease or leases
given on said land or any part thereof, and it shall not be

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necessary for the Grantees to join any such subsequent lease
or leases so made; that Grantees shall only receive under such
subsequent lease or leases a 1/128 (1/16 of the usual 1/8
royalty) part of all of the oil, gas and other minerals taken and
saved under such lease or leases and Grantees shall receive
same out of the royalty provided for in such lease or leases.
The deed then stated that the grantors will “warrant and forever defend
all and singular the said royalty interest herein conveyed.”
For seven decades following the deed’s execution, the grantees and
their successors received a fixed 1/128 royalty without any dispute among
the parties. Not until 2020 did Johnson, a successor of Holcombe and Rape,
claim otherwise. He sued the Cliftons, successors of the Cornells, for a
declaratory judgment that, if granted, would mean that everyone had
misunderstood the deed all along. Instead of a fixed 1/128 royalty, Johnson
claimed, the deed had always provided for a floating 1/16 nonparticipating
royalty interest.
The trial court denied Johnson’s motion for summary judgment
and granted the Cliftons’, thus declaring what everyone had assumed
for nearly three quarters of a century: that the deed conveyed a fixed
1/128 royalty interest. The court rendered final judgment accordingly.
Johnson appealed in July 2022. This Court decided Van Dyke in
February 2023; after rehearing was denied, the mandate issued in June
2023. The very next month, the court of appeals decided the appeal in this
case, and its decision turned heavily on the first issue resolved in Van
Dyke—the double-fraction presumption. Focusing on the double-fraction
language in the future-lease provision, the court of appeals reasoned that
the Van Dyke presumption applied to the lease language. 719 S.W.3d 270,
285–87 (Tex. App.—El Paso 2023). Specifically, the court held that

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describing the future-lease interest as “1/128 (1/16 of the usual 1/8 royalty)”
invoked Van Dyke’s “presumption that the Grantors believed they only
retained a 1/8th interest in the mineral estate,” and that a 1/16 floating
royalty was therefore conveyed. Id. at 285–86 (applying Van Dyke, 668
S.W.3d at 359). Because the leases here were future leases covered by the
double-fraction language, the court held that Johnson was entitled to a
floating 1/16 royalty instead of the fixed 1/128 royalty that had been
received for nearly 70 years. Id. at 287.
Next, despite recognizing Van Dyke’s clarification of the presumed-
grant doctrine, the court of appeals refused to apply it. Id. at 287–88. The
court held that the Cliftons forfeited any reliance on that doctrine by failing
to raise it in the trial court and in their appellate briefs. Id. at 288 (citing
Tex. R. Civ. P. 94). The court acknowledged, though, that the Cliftons
made their arguments “[i]n letter briefs filed after the Texas Supreme
Court issued its opinion in Van Dyke.” Id. at 287. The court therefore
did not reach the merits of the Cliftons’ presumed-grant arguments, and
it further refused to remand the case to the trial court in the interest of
justice despite Van Dyke’s intervening clarification of the doctrine’s
elements. Id. at 288. Concluding that the Cliftons forfeited “their right
to raise this issue,” the court reversed the trial court’s judgment in the
Cliftons’ favor and remanded for further proceedings. Id.
The Cliftons challenge the application of the Van Dyke presumption
to the deed but assert that, at a minimum, we should remand in the
interest of justice for the trial court to consider the presumed-grant doctrine.
We granted their petition for review.

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II

A

The court of appeals applied Van Dyke’s double-fraction
presumption to hold that “1/128 (1/16 of the usual 1/8 royalty)” referred
to a floating 1/16 royalty interest. Id. at 284–87. Our disagreement with
the court of appeals lies in our conclusion that the deed’s text rebuts the
Van Dyke presumption.
“A mineral estate consists of five interests: 1) the right to develop,
2) the right to lease, 3) the right to receive bonus payments, 4) the right to
receive delay rentals, and 5) the right to receive royalty payments.” French
v. Chevron U.S.A. Inc., 896 S.W.2d 795, 797 (Tex. 1995) (citing Altman v.
Blake, 712 S.W.2d 117, 118 (Tex. 1986)). “A conveyance of a mineral estate
need not dispose of all interests; individual interests can be held back, or
reserved, in the grantor.” Id. As in our interpretation of any contract or
deed, we are primarily concerned with the parties’ intended meaning as
expressed in the text they adopted. Van Dyke, 668 S.W.3d at 361. We
recognize that “conveying instruments in fraction-of-royalty cases tend
to be more complex than in the fractional royalty cases, with apparently
contradictory or inconsistent terms that courts must harmonize, if possible,
to give effect to all the words and the intent of the parties as expressed
in the instrument.” Hysaw v. Dawkins, 483 S.W.3d 1, 12–13 (Tex. 2016).
We look to all the language in such deeds to deduce intent. Id. at 14.
To assist in these deductions, Van Dyke recognized that
“[a]ntiquated instruments that use 1/8 within a double fraction raise a
presumption that 1/8 was used as a term of art to refer to the ‘mineral
estate.’ ” 668 S.W.3d at 359. This presumption, which aims to ascertain

5
the meaning of the language the parties used, stems from a widespread but
erroneous historical view among oil-and-gas parties: that 1/8 was the
maximum conveyable interest, leading to deeds with double fractions such
as “1/2 of 1/8” when a party sought to convey half of its entire interest, and
not merely 1/16 of it. See id. at 357, 363.
The court of appeals in this case began as Van Dyke directed but did
not follow it to the end. As Van Dyke explained, “when courts confront a
double fraction involving 1/8 in an instrument, the logic of our analysis . . .
requires that we begin with a presumption that the mere use of such a
double fraction was purposeful and that 1/8 reflects the entire mineral
estate, not just 1/8 of it.” Id. at 364. We italicized the word “begin” to
underscore that identifying a relevant double fraction is an important
step—but only the first step. We were emphatic in stating that the double-
fraction “presumption is readily and genuinely rebuttable.” Id. If textual
“provisions—whether express or structural—illustrat[e] that a double
fraction was in fact used as nothing more than a double fraction, the
presumption will be rebutted.” Id. at 359. Thus, if a deed contains “express
language, distinct provisions that could not be harmonized if 1/8 is given
the term-of-art usage . . . , or even the repeated use of fractions other than
1/8 in ways that reflect that an arithmetical expression should be given
to all fractions within the instrument,” then courts should treat 1/8 as a
fraction bearing its ordinary numerical value and then multiply the
fractions to ascertain the conveyed interest. Id. at 364–65.
The use of 1/8 in this case’s deed implicates the Van Dyke
presumption, but the deed’s language amply contains the kind of textual
indicia we described as sufficient to rebut that presumption. The deed

6
conveys “an undivided one-one hundred and twenty-eighth (1/128) interest
in and to all of the oil, gas and other minerals in and under” specified tracts
of land, with certain interests reserved in the grantors. It withholds the
right “to receive any part of any rentals paid under [current] leases” and
to receive “any bonus money” in future leases. The deed then grants a
“1/128 (1/16 of the usual 1/8 royalty) part of all the oil, gas and other
minerals taken and saved under” future leases.
To understand why this text overcomes the presumption, compare
it to the language in the instruments we considered in Van Dyke and its
predecessor, Hysaw. The double fractions in those cases were not expressed
as a multiplied product. Van Dyke concerned a 1/2 of 1/8 interest, see id. at
357, and Hysaw concerned a 1/3 of 1/8 interest, see 483 S.W.3d at 14. In both
cases, the Court was asked to determine whether the term “1/8” should be
deemed to represent the entire interest or multiplied out to produce a final
fractional interest. The answer, we said in Van Dyke, must lie in the text.
“[T]here must be some textually demonstrable basis to rebut the
presumption,” but nothing in that case even remotely did so. 668 S.W.3d at
365. “The use of a double fraction in this deed, combined with the lack of
anything that could rebut the presumption,” led us to “conclude as a matter
of law that this deed did not use 1/8 in its arithmetical sense but instead
reserved to the . . . grantors a 1/2 interest in the mineral estate.” Id. at 366.
The deed here, by contrast, contains language in both the granting
clause and the future-lease clause that expressly uses “1/128”—the product
of two fractions. In the granting clause, 1/128 stands alone, without an
attached double fraction. But in the future-lease clause, 1/128 is followed
by a parenthetical containing two fractions (1/16 and 1/8) that, multiplied

7
together, produce 1/128. The deed thus uses the double fraction to show
its work. By expressly multiplying the fractions to arrive at a single
fraction, in other words, the parenthetical containing the double fraction
explains how the parties reached their 1/128 future-royalty figure. If the
double fraction were omitted, the deed would read, “a 1/128 part of all of
the oil, gas and other minerals.” The explanatory parenthetical should not
be given greater weight than the single-fraction product, especially because
the same figure is expressed alone in the granting clause. If possible, the
1/128 figure should be read consistently throughout the document.
That consistency is readily achievable here. The granting clause
provides for a 1/128 interest. The present-lease clause stipulates the
existence of a current 1/8 royalty and provides the grantees “one-sixteenth
(1/16) of the royalties provided for in said lease.” Multiplying those two
fractions yields 1/128, the amount specified in the future-lease clause that
directly follows. Thus, we read the text to mean that a 1/128 royalty was
to be conveyed on future leases, separate but parallel to a 1/128 existing
royalty on then-current leases and the 1/128 interest conveyed in the
granting clause. The terms harmonize and the Van Dyke presumption is
necessarily rebutted.
In some ways, therefore, this case is a photographic negative of
Van Dyke. There, we identified nothing in the text that could rebut the
presumption. Id. at 359, 366. Here, what is missing is not textual indicia
that press against the presumption but a plausible basis to read the text
as doing anything except rebutting the presumption.
The universe of double-fraction cases includes many variations,
including cases far more complex than either Van Dyke or this case. For

8
all such cases, though, our direction from Van Dyke remains applicable:
that courts “begin” with the double-fraction presumption, id. at 364, and
then carefully and meaningfully assess any textual provisions asserted
by a party as inconsistent with the presumption, id. at 364–66. If no such
indicia exist, or if they are readily harmonized with the presumption, then
courts will deem the presumption unrebutted. The operative terms in
the deed in this case, however, clearly establish a “textually demonstrable
basis to rebut the presumption,” id. at 365, so we hold that the deed conveys
a 1/128 future-royalty interest.
The terms of the deed also make clear that the future-royalty
amount is fixed, not floating. The future-lease clause grants a 1/128
portion of future royalties “given on said land or any part thereof,” not on
the fraction of the land given to the grantees in the granting clause.
Because the future-royalty conveyance comes from the entire original
tract, it must be read separately from the granting clause, as an
independent conveyance. Thus, the royalty is fixed at 1/128 of production
on the land. Cf. Richardson v. Hart, 185 S.W.2d 563, 565 (Tex. 1945)
(holding that a royalty interest described as “1/16th of 1/8th of all of the oil
royalty” was a floating fraction of royalty).

---

The deed’s language is explicit and unambiguous. Its terms
convey a fixed 1/128 nonparticipating royalty interest on future leases.
This interpretation resolves any apparent contradictions and allows the
deed to be read as a cohesive whole.

9
B

The Cliftons argue in the alternative that the court of appeals
should have remanded the case in the interest of justice for the trial court
to consider the presumed-grant doctrine. This argument has considerable
force because “[t]he analytical framework introduced in Van Dyke, while
consistent with our precedents, presents a new legal formulation” that the
parties previously had not anticipated. Thomson v. Hoffman, 674 S.W.3d
927, 928–29 (Tex. 2023) (citation omitted).
The very fact that the court of appeals relied almost exclusively on
Van Dyke, which we decided only after this case was submitted on appeal,
confirms the point. In Van Dyke, moreover, we went to significant effort to
explain how the double-fraction presumption sits alongside the presumed-
grant doctrine. 668 S.W.3d at 366–68. The precedents of some courts of
appeals—including the court in this case—had rigidly demanded proof of
a “gap” in the chain of title as an essential element of the presumed-grant
doctrine, but our analysis rejected that requirement. See id. at 366 & n.7.
There is no alleged gap in title here, so it is hard to fault the parties for not
having invoked a doctrine that, at the time of the trial-court proceedings
and appellate briefing, would have been perceived as meritless, but that
after Van Dyke was correctly perceived as potentially dispositive.
Nonetheless, because we agree with the Cliftons’ interpretation of
the deed, we need not decide whether it was error to deny their requested
remand. But, as in Van Dyke, the presumed-grant doctrine remains relevant
to our analysis. In that case, after holding that the presumption was
unrebutted, we proceeded to explain how the presumed-grant doctrine helps
ensure accuracy in double-fraction cases. Both prongs, albeit in entirely

10
distinct ways, ask the same question: who owns this property today?
The double-fraction presumption does that by examining the text of
the instrument, which still means today whatever it meant when it was
adopted. See id. at 360 (“The meaning of an unamended text . . . is unaffected
by the passage of time, linguistic developments, or the evolution of usage.”).
By contrast, the presumed-grant doctrine is concerned not with
textual meaning but with real-world developments. That doctrine, “also
referred to as title by circumstantial evidence, has been described as a
common law form of adverse possession.” Id. at 366 (quoting Fair v. Arp
Club Lake, Inc., 437 S.W.3d 619, 626 (Tex. App.—Tyler 2014, no pet.)). To
prevail, the party pressing the doctrine must establish 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.” Id. Notably, none of these elements turns
on the interpretation of the underlying legal instrument. Nor does the
presumed-grant doctrine play any role in interpreting deeds or other
instruments. See, e.g., id. at 367 n.9.
Both here and in Van Dyke, these two distinct inquiries generate
consistent answers. In Van Dyke, the presumption was unrebutted, which
pointed in the same direction as the parties’ near-century of shared
understanding. Here, the rebutted presumption points in the same direction
as the parties’ seven decades of shared understanding. Parallel to Van Dyke,
the parties’ predecessors-in-interest apparently all agreed on what the deed
required—namely, a fixed 1/128 royalty interest—and they paid and
accepted royalties in accordance with that interest. The Cliftons have
alleged, and Johnson does not dispute, that this fixed 1/128 royalty is what

11
has “historically been paid”—for 70 years. Indeed, a 2020 conveyance to
Johnson noted that “[t]he Holcombe Deed has been interpreted as reserving
a fixed one of one hundred twenty-eight (1/128) nonparticipating royalty
interest,” although it disputed that interpretation. That instrument was
signed less than a month before Johnson filed this lawsuit.
The confluence in textual interpretation and the parties’ shared
understanding should seem normal and reassuring, not odd or coincidental.
One would expect parties’ views of their respective rights, and their
corresponding conduct over time, to be consistent with the text of the
governing legal instrument. It would be surprising for parties to misinterpret
(or disregard) their own legal instrument from the very beginning.
In rare circumstances, however, current property ownership is not
consistent with what the instrument’s text proclaims. The whole point of
adverse possession, for example, is to assert ownership that is contrary
to a recorded deed. The presumed-grant doctrine plays the same role.
Courts will not find adverse possession or the presumed-grant
doctrine to be satisfied easily. See id. at 366. But carefully examining
properly presented presumed-grant arguments helps courts prevent error.
When the doctrine’s demanding requirements are met—such as when
parties have relied on seven decades of consistent understanding—parsing
a complicated text may end up being unnecessary. Suppose that, under the
textual analysis, the presumption is (or is not) rebutted. If the parties have
nonetheless acted as if the opposite were true for such an extended time,
then the court will still apply the presumed-grant doctrine when its
requirements are satisfied. The analogy to adverse possession is again
helpful. If it is beyond dispute that a claimant has openly and notoriously

12
exercised exclusive dominion over real property for 50 years, it often will not
much matter whether the original deed gave the property to someone else.
Thus, as we explained in Van Dyke, when the presumed-grant
doctrine clearly applies, “a court could dispense with the deed-construction
analysis” altogether. Id. at 368 n.11. As we said there, and as this case
and Van Dyke jointly illustrate, the presumed-grant doctrine can benefit
either party—one who asserts that the double-fraction presumption is
unrebutted (as in Van Dyke) or one who asserts that it is rebutted (as here).
Had this case arisen after Van Dyke, it may have been one in which
any deed-interpretation difficulties could have been pretermitted given the
conceded seven decades of common understanding and practice. But we
need not decide whether the Cliftons have satisfied the presumed-grant
doctrine’s requirements because, even if they have, applying 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.

---

The court of appeals’ judgment is reversed. The trial court’s
summary judgment is reinstated.

Evan A. Young
Justice

OPINION DELIVERED: March 13, 2026

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