Surface Estates and Surface Rights

admin  -  Jul 15, 2012  -  No Comments

Unfortunately, the law relating to surface rights and mineral rights in Texas is about as complex as any area of law. Ask any truthful attorney (yes, I know, too easy) and they will admit that while studying for the bar exam, they spent hours worrying over the many complexities that our legislature, courts, and administrative bodies created in regards to the interplay of mineral rights.

A good starting point in understanding all of this is the relationship between surface rights and mineral rights. In Texas, all real property has both a surface estate and a mineral estate. The mineral estate differs from the surface estate in that it involves the ownership of mineral underneath the surface estate. Commonly, this includes the right to explore and produce oil and natural gas beneath a property. Problems arise because it is now common for the surface estate and mineral estate to be owned by different parties.

Under Texas law, the mineral estate is dominant over the surface estate. Thus, the development of the mineral estate by mineral owners generally cannot be precluded by surface owners. This means that the mineral owner has the right to use as much of the surface as is reasonably necessary to extract the minerals. The law recognizes this right because the mineral estate is useless without the ability to get the minerals out of the ground. So if you own the surface estate to a property and do not own the minerals outright, the mineral estate owner may come onto and your property for development of minerals even though damage to your land may result from mineral estate owner’s development.
Fortunately, surface estate owners may have a right to compensation for damage to their surface by the mineral estate owner or the company from which the mineral estate owner leased their mineral interests. This includes damages to pasture or trees to drill wells, damages for roads built to wells, pipelines built across land to wells, and use of water from ponds for drilling purposes. Likewise, mineral estate owners or their lessees can be held liable in a claim for negligence to any property damage incurred as a result of their operations.

Further, under the ‘Accommodation Doctrine’ a mineral estate owner may be limited in their proposed drilling operations if use mineral owner’s use will substantially impair existing surface use and there are reasonable alternatives available to mineral owner. In other words, in some cases, the owner of the mineral estate can be stopped if their proposed use will wholly destroy the use of by the surface estate owner of the surface estate.

As a surface estate owner, one way to avoid some of these issues is by obtaining a ‘Surface Waiver’ from the mineral owner. Under a ‘Surface Waiver’, the mineral estate owner waives the right to use all or part of the surface of the land. When granting such a waiver, the owner of the mineral estate will usually reserve the right to extract the minerals under the property by directional drilling from the surface of nearby property.
I hope this has been of some assistance to you. If you have any questions about your surface rights, surface estate or mineral estate, please feel free to contact us.