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Yours, Mine, and Ours: Conflicts Between Mineral and Surface Estates

Carroll G. Martin, Proceedings of 46th Annual Rocky Mountain Mineral Law Institute (2000)

Separate ownership of mineral rights and surface rights creates conflicts and special considerations for those involved in oil and gas exploration. The fundamental rule is that the mineral estate is the dominant estate and carries the right to use the surface and subsurface of the land for exploration and production of the minerals. This paper begins with a broad overview of court decisions defining the nature of the dominant mineral estate, followed by a discussion of several factors that complicate the relationship between the mineral and surface estates, and a look at how these basic rules have been applied in cases defining the rights of the mineral and surface owners as they relate to common types of subsurface operations: deviated wells, geophysical exploration, fracturing, and underground hydrocarbon storage. Two significant factors not discussed are specific oil and gas lease provisions and statutes and regulations that may affect the use of the surface by a mineral owner or lessee.

§ 19.02 The Right of the Mineral Owner to Use of the Surface

[1] The Dominant Mineral Estate

The principle of the dominant mineral estate is recognized throughout the oil and gas producing states.1 Any analysis of the mineral owner's right to use of the surface should begin with the principle that the mineral estate is the dominant estate and carries the implied ri