partners with Moses, Palmer & Howell. The firm provides legal advice
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landowners desiring to protect the surface
of their properties and mineral owners
wanting to drill wells or conduct other
surface operations to produce minerals
underlying those properties. This tension is
magnified in jurisdictions like Texas, where
the surface and the mineral estates can be,
and often are, severed from each other and
owned by different parties. Disputes about
these divergent property interests will
likely become more frequent as drilling
continues to expand into new shale plays
across the United States and in more
urban areas.
A review of Texas law on this issue
is instructive because, "[g]iven Texas'
unrivaled leadership in shaping the
nation's dynamic energy sector, `[o]ther
states frequently look to Texas decisions
when confronted with a new or unsettled
issue of oil and gas law.'"
observed that "the oil and gas estate is the
dominant estate in the sense that use of
as much of the premises as is reasonably
necessary to produce and remove the
minerals is held to be impliedly authorized
by the lease."
minerals would be worthless if the grantee
and reserver could not enter upon the
land in order to explore for and extract the
minerals granted or reserved."
dominant estate, Texas law provides that
they must conduct their operations with
"due regard" for the surface owner's rights.
Getty court articulated what is known as
the "accommodation doctrine" in an effort
to reconcile this tension between the two
estates. The accommodation doctrine holds
that "where there is an existing use by
the surface owner which would otherwise
be precluded or impaired, and where
industry there are alternatives available
to the lessee whereby the minerals can
be recovered, the rules of reasonable
usage of the surface may require the
adoption of an alternative by the lessee."
accommodation doctrine has the burden of
establishing that the lessee's surface use
is not reasonably necessary, considering
"usual, customary and reasonable practices
in the industry under like circumstances
of time, place and servient estate uses."
surface use may be established by showing
the availability of other non-interfering and
reasonable means to produce the minerals
that will permit the existing use of the
surface to continue.
revisited the accommodation doctrine
in Merriman v. XTO Energy, Inc.
to enjoin XTO from drilling a well that
he alleged failed to accommodate his
existing cattle operation.
of appeals found the landowner failed
to prove that: (1) he did not have any
reasonable alternative "agricultural" uses
for the subject tract; and (2) relocating his
cattle operation to other tracts held under
short-term leases was not a reasonable
Oil and Gas Operations: The Accommodation
Doctrine and Its Limits