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Chained Gates and No Trespassing Signs: Dealing With Wary Landowners in a Brave New World

James J. O'Malley, Kendor P. Jones, Proceedings of 51st Annual Rocky Mountain Mineral Law Institute (2005)

The issues involved in the conflict between the owners of the surface estate and the owners of the mineral estate have received increased attention in recent years, 1 primarily due to steadily rising surface values, burgeoning residential and urban growth, and the culmination of decades of anti-mining and anti-oil and gas development rhetoric. The increasing importance of these issues was underlined by the two-day Special Institute on the subject presented by the Rocky Mountain Mineral Law Foundation in Westminster, Colorado, in February 2005. 2 This article will first review the legal background of the conflict; it will then address the developing trend, through legislative and regulatory action, to attempt to balance the scales in favor of the heretofore servient surface estate; and it will conclude with an analysis of industry's efforts to reach accommodation with its surface owners without resorting to the courts or regulatory agencies, first through the simple Damage Release, with a one-time payment; then, with the more complex Surface Damage Agreement; and, most recently, by means of the comprehensive Surface Use Agreement, with detailed, forward-looking provisions that may call for payments by both parties and, in essence, make the surface owner and the operator co-stakeholders in the development of the surface and of the minerals.
§ 7.02 The Law of Severed Estates