partners with Moses, Palmer & Howell. The firm provides legal advice and counseling in the areas of oil and gas law, banking matters, business and commercial litigation, real estate and family law. 309 West 7th Street, Suite 815 Fort Worth, Texas 76102 817.458.3535 Phone 817.255.9199 Fax smoses@mph-law.com dpalmer@mph-law.com thowell@mph-law.com www.mph-law.com 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 |