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Changing Concepts in the Dominance of the Mineral Estate

John F. Welborn, Mineral Development and Land Use (1995)

The conflict between surface and mineral development of land continues to rage in this country, especially in the West and in those parts of the West where many lands have prime mineral value as well as value for intense surface use. At the heart of this conflict is the concept of mineral dominance and the legal issues which that concept has spawned. This topic has been fertile ground for articles and papers for decades, and a wealth of legal analysis has already been published.1 This conflict is not going away, however, and the writings on the topic demonstrate an increasing sense of urgency. This Special Institute is a sign of the times and an indication that there are no easy solutions to the problems which make this conflict so intense. This paper is about the various legislative and judicial approaches to finding those solutions. It is also about the role of cooperation, or more accurately “accommodation,” between surface and mineral owners as this conflict evolves into a basic land use struggle.

The issues seem much more complicated now than they were in 1962 when Lowell Davis observed that many mineral lessees were paying the surface owner, even though they did not have to do so, in order “to preserve amicable relations with surface owners and users and to avoid multiplicity of actions.”2 He lamented that this custom “has unfortunately led to a wide-spread bel