On March 13, 2026, the Texas Supreme Court issued its opinion in Clifton v. Johnson, marking the first instance in which the Court found sufficient indicia in the text of an instrument to rebut the Van Dyke presumption.  Nearly three years before the Court issued its opinion in Clifton, it issued its landmark opinion in Van Dyke v. Navigator Group, 668 S.W.3d 353 (Tex. 2023), holding that, in the context of antiquated oil and gas conveyances containing one-eighth within a double fraction, such language gives rise to a rebuttable presumption that “one-eighth” refers to the entire mineral estate. Following Van Dyke, numerous title disputes arose and made their way through courts across the state. When adjudicating these disputes, courts of appeal have been reluctant to hold that royalty clauses containing a 1/8 within a double fraction rebutted the Van Dyke presumption, leaving industry stakeholders and practitioners wondering whether the Van Dyke presumption is, in fact, rebuttable and, if so, what circumstances are sufficient to rebut the presumption. The Texas Supreme Court has now confirmed in Clifton that the Van Dyke presumption is, in fact, rebuttable, and it shed light on what is sufficient to do so.

At issue in Clifton was a 1951 royalty deed that 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” several tracts of land in Reeves County. The deed also specified that the “land is under oil and gas leases providing for a royalty of 1/8 of the oil….” The 1951 royalty deed further conveyed 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” future leases. For nearly three quarters of a century, the grantees and their successors received a fixed 1/128 royalty without dispute. However, in 2020, Johnson, a successor-in-interest to the grantee, claimed that the 1951 royalty deed conveyed a floating 1/16 royalty interest.  In its opinion, the Texas Supreme Court revisited the two issues explored in Van Dyke: the rebuttable presumption and the presumed-grant doctrine. 

The Van Dyke Rebuttable Presumption

The Texas Supreme Court reversed the decision of the El Paso Court of Appeals and reinstated the trial court’s summary judgment ruling, holding that the plain language of the 1951 royalty deed rebutted the Van Dyke presumption by showing that the parties to the deed did not use 1/8 as a term of art—rather, they used 1/8 for its ordinary numerical value. While the court of appeals began its analysis with the Van Dyke presumption, it did not follow the analysis to the end. Had it done so, it would have considered the “textual indicia” in the 1951 royalty deed that was sufficient to rebut the presumption. 

Here, unlike Van Dyke (and Hysaw v. Dawkins), both the granting clause and the future-lease clause expressly used the product of two fractions: 1/128. While the 1/128 stood alone in the granting clause, it was followed by double-fraction parenthetical in the future-lease clause—(1/16 of the usual 1/8 royalty)—which, when multiplied, amounted to 1/128. The Court interpreted the double-fraction parenthetical as being used to show how the parties reached the 1/128 royalty interest. Without the double-fraction parenthetical, the future-lease clause would still have contained the stand-alone fraction 1/128. The Court stated that explanatory parentheticals should not hold greater weight than single fractions—particularly when the same figure is expressed as single fraction alone in the granting clause. To do otherwise would have resulted in the 1/128 figure not reading consistently throughout the instrument. As such, the Court interpreted the 1951 royalty deed as conveying a fixed 1/128 royalty interest on future leases, thereby resolving any apparent contradictions and reading the instrument as a cohesive whole. 

Presumed Grant Doctrine 

Additionally, the Texas Supreme Court concluded that the Cliftons’ alternative argument that the court of appeals should have remanded for the trial court to consider the presumed-grant doctrine was meritorious because, in Van Dyke, the Texas Supreme Court made clear that the rebuttable presumption “sits alongside the presumed-grant doctrine” and remains relevant to the analysis when interpreting double fractions. Unlike the rebuttable presumption, which concerns textual meaning, the presumed-grant doctrine concerns “real-world developments.” To prevail under the presumed-grant doctrine, a party must establish “(1) a long-asserted and open claim, adverse to that of the apparent owner; (2) a nonclaim by the apparent owner; and (3) acquiescence by the apparent owner in the adverse claims.” 

As was the case in Van Dyke, application of the two distinct inquiries—the rebuttable presumption and the presumed-grant doctrine—here pointed in the same direction of the parties’ 70-year shared understanding: the 1951 royalty deed conveyed a fixed 1/128 royalty interest. While oftentimes the parties’ view of their respective rights and their corresponding conduct is consistent with the text of the instrument, the Court noted that in “rare circumstances” the presumed-grant doctrine may obviate the plain meaning of the text. Ultimately, the Court concluded that it need not decide whether the Cliftons satisfied all three elements of the presumed-grant doctrine because it would lead to the same result as the textual analysis of the deed. 

Notably, Chief Justice Blacklock questioned counsel in oral arguments on whether it would be better, when there has been a consistent course of conduct among parties to an instrument containing one-eighth within a double fraction, to “[cut] through the whole thing” and interpret conveyances consistently with the parties’ course of conduct without regard to “presumptions and rebuttals.” In response to this line of questioning, the Court received three amicus curiae letters urging the Court not to adopt such an approach as doing so would contradict established precedent that course of conduct may not inform the text of an unambiguous deed and would contribute to title uncertainty.

The Court, however, likened the presumed-grant doctrine to adverse possession in that adverse possession asserts ownership that is contrary to a recorded deed. It then noted that, while courts will not find the presumed-grant doctrine to be easily satisfied, when its requirements are met, “parsing a complicated text may end up being unnecessary.” For example, “suppose that, under a 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.” Thus, as the Court “explained in Van Dyke, when the presumed-grant doctrine clearly applies, ‘a court could dispense with the deed-construction analysis’ altogether.”

From this language, it appears to be clear that the Court disagreed with the amicus curiae letters submitted in response to Chief Justice Blacklock’s line of questioning and held that course of conduct can override the plain meaning of an instrument’s text when the requirements of the presumed-grant doctrine are satisfied. At the same time, because application of the presumed-grant doctrine was consistent with the Court’s interpretation of the instruments in Van Dyke and Clifton, it is yet to be seen what quantum of evidence is necessary before a court will disregard an instrument’s text.

It seems, then, that following this opinion, parties who find themselves in a dispute concerning how a double fraction containing one-eighth should be interpreted will find themselves unable to rely solely on the language of the instrument to resolve the dispute. Instead, until the Court provides guidance otherwise, it may be inevitable that each dispute concerning a double fraction containing one-eighth will necessitate a careful analysis of the history of payments from the inception of the instrument to the present to determine whether a fixed or floating royalty interest was reserved. After all, such a history “could dispense with the deed-construction analysis altogether.”

For more information, contact Liskow attorneys Jana Grauberger, J.T. Kittrell, Sam Allen, and Margaret Chavez, and visit Liskow’s Royalty Litigation practice page.