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Dormant Minerals and Reunification of Estates

William P. Pearce, Severed Minerals, Split Estates, Rights of Access, and Surface Use in Mineral Extraction Operations

Much has been written about statutory attempts in the last two or three decades to deal with the problem of old “unused” severed mineral interests that tend to clog the land records and inhibit development of both mineral and surface interests. These kinds of statutes have been termed, variously, “dormant minerals statutes” or “abandoned minerals statues,” possibly without any specific intent to make a legally significant distinction between those two terms. It may be, however, that the use of the different terminology reflects an effort to make the concept more palatable by using the term “dormant” in place of “abandoned,” in view of the problem, discussed below, with treating real property as abandoned.

In the abandoned or dormant minerals context, of course, we are talking about mineral interests that have been severed from the surface interest, thereby creating two separate and distinct ownership interests in real property. These ownership interests give rise to, and are based upon, the mutually interrelated rights and duties of the owners with respect to the land. 1 The notion of the enjoyment by one person of a certain bundle of rights in a thing, such as a piece of land, enforceable against anyone else by the sanctions of the law, is at the heart of the common law concept of private property. 2 As a general principle, therefore, the nature of private property is