Owning land in Texas doesn’t always include what is under the surface. Texas law divides land ownership into two distinct parts: the surface estate and the mineral estate. A landowner can sell one part and keep the other. Once a landowner separates them, the law treats each estate differently.
Rights of the dominant mineral estate
In Texas, the rights of the mineral estate take precedence over surface owners’ rights. As a result, the mineral owner (or the company leasing the rights) is generally allowed to utilize the surface as much as reasonably necessary to find and extract oil and gas. This includes drilling wells, building roads, laying pipes and conducting tests. However, the surface owner can still hold them financially responsible if they damage the land by acting in a negligent, unreasonable or excessive way.
Rights of surface owners
Surface owners still have strong legal protections in Texas. One protection is the accommodation doctrine. This rule may require a mineral owner to use a different method or location if a reasonable alternative exists that would allow them to access the minerals without substantially disrupting the surface owner’s existing use.
To use this rule, a surface owner must prove three things. First, the operator’s actions substantially impaired an existing surface use. Second, there is an industry-accepted alternative. Third, the operator has reasonable alternatives to go on with their operations. Surface owners can also sign a surface use agreement before drilling starts. This contract sets clear rules for land access, payment, damages and cleanup.
How an attorney might help
An attorney experienced in oil and gas law can review your property deed to explain your specific surface access rules. They can also help negotiate a surface use agreement before work begins. Getting this agreement in place upfront provides much better protection than waiting for a dispute to arise and relying on the accommodation doctrine.
