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Dormant Mineral Acts: Possible Game Changers?

Patrick H. Martin, Development Issues in Major Shale Plays

In the states which have adopted the ownership in place theory it is possible for a working interest under a lease or a mineral interest to be classified as corporeal. Thus, in Texas severed mineral interests and the interest of an oil and gas lessee are viewed as corporeal estates. The owners of royalty interests lack the right to enter upon the premises for the purpose of exploration and development (although they may be given certain easements of ingress and egress for the purpose of informing themselves concerning the conduct of such operations) and hence such interests are incorporeal. Several states which adopt the ownership in place theory differentiate between severed mineral interests and the interests of an oil and gas lessee, classifying the former as corporeal and the latter as incorporeal. Others view both types of interests as corporeal or both as incorporeal.

The only significant consequence of the corporeal/incorporeal distinction is whether the interest may be abandoned; if corporeal it may not be abandoned, if incorporeal it may be. In a limited number of states, remedies available to the owner of the interest may turn upon the local classification of the interest as corporeal or incorporeal.

It is well established at common law that an incorporeal interest such as an easement or profit a prendre may be extinguished by abandonment,2 which