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A Tale of Two Owners: Real Property Co-Ownership and Mineral Development

Marla E. Mansfield , Proceedings of 43d Annual Rocky Mountain Mineral Law Institute (1997)

Blackstone has defined the hallmark of private property as the ability to exclude others from use of property, subject only to the rules of law governing society.1 When parties own property together, the right to exclude is modified: the co-owners cannot exclude each other, but they may protect the property and exclude non-members of the owning community, primarily through trespass laws. Although the form of owning together may vary, concurrent ownership is an all-inclusive term. Once there are two concurrent owners, a tale of two owners may begin.2

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Concurrent ownership originates in several ways. A common genesis is through marriage: a husband and wife seek to have their lives arranged as one. A similarly common, albeit less celebratory reason for concurrent ownership, arises from death. Either through intestacy or through devise, heirs or children are often left property to share and share alike. A final common rationale for concurrent ownership is more peculiar to the mineral industry. The presence or absence of minerals is often speculative. To spread risks and increase revenue possibilities, investors may buy partial mineral interests in several tracts. Shares of minerals can also compensate geologists or other collaborators.3

To fully understand the concurrent ownership problems that may confront the oil and gas developer, three major t