Mineral & Surface Rights

A host of companies competing for leases in the Barnett Shale means that many landowners are dealing with drillers, operators and producers for the very first time. It is important to note that in Texas, the mineral estate is a separate interest in land that can be severed from the surface estate. The severance generally occurs in one of two ways: either the landowner sells the minerals and retains the surface, or more commonly, the landowner sells the surface and retains the minerals. If the seller fails to reserve the minerals when selling the surface, the buyer automatically receives any mineral interest the grantor owned at the time of conveyance. Whether the surface and mineral estates are severed or united, the rule in Texas is the same - the mineral estate dominates because the surface estate exists for the benefit and use of the mineral owner. Otherwise, the mineral estate would be worthless if the mineral owner could not enter on the surface to explore for and produce the minerals.

Can the owner of the mineral rights to my property authorize a private company to access minerals under my property?

Yes. Texas law and the Texas Railroad Commission regulations grant energy companies with mineral leases, all rights to produce natural gas below the surface of their leased property. This includes the right to drill a well, pump their products, and install pipeline, when the mineral leases underlie the property in which you own the surface rights. These laws make the mineral rights owner and surface rights owner co-stewards of the same tract of land.

The grant of a mineral lease gives the mineral lessee the implied right to use as much of surface as is reasonably necessary for the exploration and development of the minerals. The surface owner's consent is not required for this right to be exercised.

During the tenure of a lease, the mineral lessee has the same rights to use the surface as any mineral owner. These property rights include: using as much of the surface as is reasonably necessary for mineral exploration and production. Independent permission from the surface owner isn't necessary. Liability occurs only when the lessee goes beyond what is reasonably necessary or negligently injures the surface.

Can the mineral lessee have any restrictions placed upon them?

The mineral lessee can have certain restrictions placed upon them but may not be prohibited or inhibited from accessing the minerals to land where they have permission to do so from the mineral rights owners.

Restrictions can be imposed by:

A city ordinance - When the mineral activity occurs within the boundaries of a municipality the mineral producer's activities must conform to any valid ordinances instituted under the police powers of the city or town.

Negotiating lease provisions - The mineral rights owner could (but isn't required to include) an alteration in their lease terms to require the surface owner and mineral lessee to mutually agree on the location of wells, roads, pipelines, and related activities.

Imposing deed restrictions - A developer on a subdivision could designate operation sites (drill sites) and the locations of road and pipeline easements within the subdivision.