Accommodating the Accommodation Doctrine
How the surface estate may be used—more specifically, whether a surface
Angela Staples
owner is incommoded by a mineral owner’s uses of that surface estate—is a question that the Texas Supreme Court is being called upon to answer.
Recently the Texas Supreme Court was asked to clarify what a surface owner is required to prove when alleging that a mineral owner has violated the accommodation doctrine. The accommodation doctrine—set forth in the 1971 case Getty Oil Co. v. Jones, 470 S.W.2d 618, 621 (Tex. 1971)—balances mineral and surface owners’ right to use the surface estate. Under the accommodation doctrine, mineral owners may be required to adopt available alternative methods for the recovery of minerals when a surface owner’s existing use would be precluded or impaired by a proposed recovery method.
Specifically, the mineral estate is entitled to reasonable use of the surface, but due regard for the rights of the surface estate must be exercised. The Texas Supreme Court has explained the concept of “due regard” as meaning: “[W]here there is an existing use by the surface owner which would otherwise be precluded or impaired, and where under the established practices in the industry there are alternatives available to the [mineral owner] whereby the minerals can be recovered, the rules of reasonable usage of the surface may require the adoption of an alternative by the [mineral owner].”
Here, Homer Merriman owned the surface estate of a 40-acre tract that he used in his cattle operation, along with 15 other tracts. XTO Energy, Inc., owner of the oil and gas lease covering the 40 acre tract, proposed a well site on this 40-acre tract. Merriman notified XTO that the proposed well location would interfere with his cattle operation. Although XTO offered surface damages as a settlement, Merriman refused, and XTO constructed the well site.
Merriman sued XTO, and asked the Court for an injunction against XTO, claiming that the well site’s location violated the accommodation doctrine. He alleged that the location of the well interfered with his cattle operation because once a year he had to place temporary fencing and corrals on the land and the well site prevented him from doing so. The court, in citing the Texas Supreme Court for authority on the accommodation doctrine, noted that the surface owner was not able to prove a violation by merely showing that his existing use will be impeded or impaired. Instead, “the surface owner must show that any alternative uses of the surface, other than the existing use, are impracticable and unreasonable under all of the circumstances.”
The court determined that the initial inquiry was “whether Merriman had reasonable means of developing his land for agricultural purposes other than by use of the temporary corral and fencing system in question.” Further, the court noted that “Merriman must show that any alternative uses of the surface are impracticable and unreasonable under all of the circumstances.”
In response to a question regarding how he could work his cattle without the current configuration of the temporary pens and corrals, Merriman “replied that he would have to hire someone to either build or take pens on the individual locations to work the cows.” He also stated that that “would be an option not my choice,” adding that “It’s a matter of the way I like to work my cows…. I like to work my cattle myself the way I like to work them.”
The court ultimately held that there was no violation of the accommodation doctrine because Merriman had alternative uses of his land that were not impracticable or unreasonable. The court also found that Merriman’s cattle operation could continue by use of alternative methods that were not impracticable or unreasonable, even if his method was “preferable and convenient for him.”
Merriman complained to the Texas Supreme Court, which initially denied Merriman’s Petition for Review. However, after a Motion for Rehearing, the Court granted review. Merriman’s Motion for Rehearing argues that the lower court improperly added a distinct third element to an accommodation doctrine claim, “requiring proof that the surface owner does not have any reasonable alternatives for conducting his surface use.” Merriman claims that this third requirement is “contrary to and inconsistent with this Court’s precedents” in addition to other established Texas authorities. Merriman asks the Texas Supreme Court to “clarify the accommodation doctrine and provide guidance to the citizens of Texas.”
Indeed, we likely do need clarity on this doctrine, if only to ease the constant disputes between surface owners and mineral owners. This opinion will likely heavily impact the respective rights of surface and mineral owners, so I will plan to write further for the PBPA on the Supreme Courts’ decision when it is issued.