clarified the court appeals' opinion in two
respects. First, it found that the "existing
use" in question was the cattle operation
and not a broader "agricultural use" as
worded by the court of appeals.
under short-term leases to the landowner
and focused on whether the landowner
was precluded from conducting his
cattle operations on the subject tract.
judgment, holding that "[e]vidence that
the mineral lessee's operations result in
inconvenience and some unquantified
amount of additional expense to the surface
owner does not rise to the level of evidence
that the surface owner has no reasonable
alternative method to maintain the
existing use."
mineral estate is dominant and will not be
infringed upon lightly. While the rights of
the surface and mineral estates are to be
balanced, the surface owner carries a heavy
burden under the accommodation doctrine
and is unlikely to force the mineral owner
to yield to an existing use of the surface
unless there are less intrusive, industry-
recognized alternatives available to the
mineral owner on the leased premises.
Other states have weighed in on the
North Dakota and Utah have adopted the
doctrine as set forth in Getty.
"[a]n operator shall conduct oil and gas
operations in a manner that accommodates
the surface owner by minimizing intrusion
upon and damage to the surface of the
land."
"selecting alternative locations for wells,
roads, pipelines, or production facilities, or
employing alternative means of operation,
that prevent, reduce, or mitigate the
impacts of the oil and gas operations
on the surface, where such alternatives
are technologically sound, economically
practicable, and reasonably available to
the operator."
these competing surface and mineral
interests. However, more and more of
them will likely be called upon to do so
as drilling continues to intensify in other
parts of the United States and especially
near urban centers.
and application of the accommodation
doctrine can be minimized, if not avoided,
by clearly establishing the mineral
owner's surface rights in the governing
of example, practitioners representing
both landowners and producers should
consider including provisions specifying
the types of permitted or prohibited
surface uses by the mineral owner;
identifying permissible locations for well
sites, roads, pipelines or other facilities
(either by legal description or by attaching
a plat); and/or delineating any existing or
anticipated surface uses the landowner
will be allowed to engage in without
interference by the mineral owner.
(quoting Ernest E. Smith, Implications of a Fiduciary
Standard of Conduct for the Holder of the Executive
Right, 64 TEX. L. REV. 371, 375 n.13 (1985)).
3 Id. at 622.
4 Harris v. Currie, 176 S.W.2d 302, 305 (Tex. 1943).
5 Getty, 470 S.W.2d at 621.
6 Id. at 622.
7 Id. at 627.
8 Getty, 470 S.W.2d at 622; Trenolone v. Cook Exploration
no pet.).
10 Id. at 247.
11 Id.
12 Id.
13 Id. at 250-51.
14 Id.
15 Hunt Oil Co. v. Kerbaugh, 283 N.W.2d 131, 136 (N.D.
(Utah 1976).
17 C.R.S. § 34-60-127(1)(b).