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). |