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Conflicting Surface Interests: Shotgun Diplomacy Revisited

John C. Lacy, Proceedings of 22nd Annual Rocky Mountain Mineral Law Institute (1976)

General Observations

The mineral wealth of land has a special place in our Western civilization. The search for gold and silver has inspired the adventures of Francisco Pizarro, Hernan Cortez, Juan Escalante, and Ed Schieffelin, and made legend the Seven Cities of Cibola, the Lost Dutchman's Mine, and the gold of California. There is little wonder therefore that potential mineral values in real estate have often been subject to special rules apart from land ownership1 [732] and that private individuals, having once acquired mineral rights to real estate, frequently withhold such rights from subsequent sales.2

These reserved mineral rights have consistently been held to be the dominant estate, constituting a servitude on the otherwise existing surface rights.3 Legal implications resulting from traditional dominance of the mineral estate have frequently given rise to very heated and emotional conflicts which have been intensified by the development of modern surface mining and the use of contemporary heavy equpiment4 which may entirely destroy the surface estate. The surface occupant, knowing this, is likely to fear the [733] worst whenever anyone indicates an interest in the mineral potential underlying his property.5

This anyone who is disturbing the surface occupant may be a wandering geologist, but hopefully it is a landman who is aware of the pote