Under a 1933 deed, Fasken holds a reserved "undivided one-fourth (1/4th) of the usual one eighth (1/8th) royalty" in oil, gas, and other minerals under certain lands.¹ For about 85 years the parties to the deed and their successors treated the instrument as reserving a fixed 1/32 royalty interest: Fasken's representative agreed that "for 85 years, the Faskens treated the royalty on the Mabee Ranch as a 1/32nd" that "did not float," and Fasken admitted it paid taxes only on a 1/32 royalty and knew of no predecessor describing the interest otherwise.² In 2019 Fasken sued, alleging the deed actually reserved a floating 1/4 royalty interest.³

The trial court granted partial summary judgment for Fasken, agreeing with its construction of the deed and finding that the defendants produced no evidence that the presumed-grant doctrine applies, and it authorized a permissive appeal on two controlling questions: whether the deed reserved a floating 1/4 royalty or a fixed 1/32 interest, and whether Fasken is barred by the defendants' affirmative defenses from claiming anything other than a fixed 1/32.¹ The Eleventh Court of Appeals (Eastland) affirmed that the deed reserved a floating 1/4 royalty and affirmed as to the estoppel, waiver, ratification, and limitations defenses, but held it lacked jurisdiction to consider the presumed-grant doctrine because the trial court's certification order did not list it, and it reversed the denial of Mabee Ranch's motion on Fasken's breach-of-contract claim.² The vehicle in this Court is two petitions for review, one by the Boren descendants (No. 25-0010) and one by the Mabee Ranch parties (No. 25-0012), which the Court granted and decided by per curiam opinion without oral argument on April 24, 2026.³ Justices Devine and Hawkins did not participate.⁴

Petitions for review (Nos. 25-0010 and 25-0012) from the Eleventh Court of Appeals (Eastland) in a permissive appeal; granted and decided by per curiam opinion without oral argument on April 24, 2026.⁵

The trial court certified two controlling questions: whether the 1933 deed reserved a floating 1/4 royalty or a fixed 1/32 interest, and whether the defendants' affirmative defenses bar Fasken from claiming anything other than a fixed 1/32.¹ The Mabee Ranch parties contend that all parties treated the interest as fixed at 1/32 for 85 years and ask whether the court of appeals erred in holding the presumed-grant doctrine outside its jurisdiction and in construing the deed.² The Court decided whether the court of appeals had jurisdiction over the presumed-grant doctrine.³

Once a trial court authorizes a permissive appeal and the court of appeals accepts it, the appellate court should resolve it by the same principles as any other appeal, including "all fairly included subsidiary issues and ancillary issues pertinent to resolving the controlling legal issue".¹

Whether the deed reserved a floating or fixed royalty and whether the presumed-grant doctrine applies.

Mabee Ranch parties (Petitioners): Van Dyke resolves the case, because the parties acted for numerous decades in accord with an agreed interpretation of the deed, and Fasken's own representative testified the royalty "did not float" for 85 years, which also shows the presumed-grant doctrine applies.¹

Fasken (Respondents): Mabee's primary argument is that a history of incorrect royalty payments bars Fasken forever from claiming the correct royalty, which the Court has rejected, and the deed's use of "usual" in the double fraction does not rebut the double-fraction presumption.²

The Mabee Ranch parties argued that all parties confirmed a fixed 1/32 interest in division orders, leases, and court representations for 85 years before Fasken sued in 2019.¹

• Texas Public Policy Foundation supports the Mabee Ranch parties: long-standing, consistent conduct between parties should govern deed interpretation rather than a rigid application of legal presumptions.

Holding

The court of appeals had jurisdiction to consider the presumed-grant doctrine in a permissive appeal, because that issue was among the fairly included subsidiary and ancillary issues in the trial court's order, and in light of the Court's recent decision in Clifton v. Johnson the court of appeals' merits judgment is vacated so it can consider both the deed's text and the presumed-grant doctrine afresh.¹

Reasoning

Two paths. In double-fraction cases there are two "distinct paths" to establishing a party's interest: the construction of the original deed and the presumed-grant doctrine.² The court of appeals reviewed only the deed-construction path because it mistakenly concluded it lacked jurisdiction over the other.³

Jurisdiction. The jurisdictional question is not whether the trial court expressly referenced the presumed-grant doctrine in its certification order but whether the issue was fairly included, and it was: the orders on appeal included the grant of Fasken's no-evidence summary-judgment motion rejecting the doctrine, and one controlling question was whether an affirmative defense barred Fasken from claiming anything other than a fixed 1/32, which the doctrine, if it applies, would establish.⁴ Closing its eyes to the doctrine would give the parties "half a loaf" and thwart the purpose of permissive appeals, and Clifton said the double-fraction presumption sits alongside the presumed-grant doctrine because both ask who owns the property today.⁵

Vacatur and remand. Clifton clarified both the scope of the double-fraction presumption and the need to consider both the instrument's text and, if properly raised, the presumed-grant doctrine, so the Court vacated the merits judgment and left to the court of appeals whether the doctrine clearly applies, in which case it could dispense with the deed-construction analysis, expressing no view on the correct outcome.⁶

Disposition

Petitions for review granted without oral argument, the court of appeals' judgment reversed as to its lack of jurisdiction and vacated as to the merits, and the case remanded to the court of appeals, which may render judgment if the case can be resolved as a matter of law or remand to the trial court if further factual development is needed.⁷

Vote Breakdown

Per curiam opinion; Justices Devine and Hawkins did not participate.⁸