Surface Owner or Mineral Owner?

INTRODUCTION Landowners in Texas for many years have freely granted, reserved and leased "oil, gas and other minerals" or interests therein. In recent years we have witnessed much litigation concerning what sub- stances should be included as "other minerals" within the phrase "oil, gas and other minerals," and this question has received the attention of numerous legal scholars. At the South Texas Uranium Seminar held in Corpus Christi, Texas, in September, 1978, Mr. William R. Dodson presented a paper dealing with this very subject and entitled "Uranium - Mineral or Surface? Who Owns It?" In his paper, Mr. Dodson reported on two recent Texas Supreme Court decisions, Acker v. a, 464 S.W.2d 348 (Tex. 1971) and Reed v. Wylie, 554 S.W.2d 169 (Tex. 1977). which held that the particular substance in question in each case is not a mineral within the phrase "oil, gas and other minerals" if substantial quantities of the substance lie so near the surface that production will entail the stripping away and substantial destruction of the surface. Since that time another chapter has been written in the Texas saga of "When is a Mineral not a Mineral?" and it is the intent of this paper to present an update of the Texas law. A review of the early Texas cases so ably covered by Mr. Dodson in his paper will not be repeated, except as is necessary to illustrate the evolution of the legal doc- trine which has been so aptly named "The Surface Destruction Test". BACKGROUND In order to appreciate the genesis of the problem, one must consider that oil and gas production commenced in Texas many years ago, Spindletop came in in 1901. As oil and gas became more valuable, land- owners with considerable frequency sold interest in the oil, gas and mineral estates in their lands, and reserved interest in the oil, gas and mineral estates in their lands when they disposed of their property. Due to the oil and gas background, and perhaps be- cause oil and gas was paramount in the minds of the parties, the traditional language employed in these grants and reservations was "oil, gas and other minerals" or variations thereof. There are literally hundreds of instruments employing this language constituting a link in the chains of title to thous- ands of acres of Texas land. In addition, there are thousands of acres of Texas land held by oil, gas and mineral leases, the primary terms of which have been perpetuated by production, containing similar language in their granting clauses. The severance of the mineral estate from the surface estate results in two separate and distinct estates, each having all of the incidents and attributes of an estate in land. with the surface estate being the serviant estate, and the mineral estate being the dominant estate and having certain easements in the surface estate to explore. produce and remove the minerals. Harris v. Currie. 176 S.W.2d 302, 305 (Tex. 1943). As observed by the court in the Harris case, this is because a grant or reservation of minerals would be wholly worthless if the grantee or reservor co~lld rwt enter upon the land in order to explore for and extract the minerals granted or reserved. Although the Texas law has recognized that an oil and gas lessee has the right to use so much of the surface as is reasonably necessary to produce the minerals. Warren Petroleum Corporation v. Monzingo, 304 S.W.2d 362, 363 (Tex. 1957), recent decisions of the Court have qualified this doctrine. In Getty Oil Company v. Jones. 470 S.W.2d 618 (Tex. 1971). Getty's pumpine, units were interfering with ones self-propelled sprinkler system utilized for irrigating the premises, and Jones sought to require Getty to install the-pumping units in cellars so that the sprinkler system could pass over them. In an effort to accommodate both the surface estate and the mineral estate, the court held (page 622) "...where 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 lessee whereby the minerals can be recovered, the rules of reasonable usage of the surface may require the adoption of an alternative by the lessee". Bearing in mind that the "reasonable use doctrine" grew up in the oil and gas industry involving sub- stances which can be produced by methods that do not destroy or deplete the surface estate, the question presented is whether the Texas courts will extend this doctrine to situations where claimants of "other minerals" seek to produce shallow deposits of iron ore, coal, lignite and uranium by surface mining methods which do destroy or deplete the surface estate? The surface destruction test has answered this question in the negative, at least as to iron. coal and lignite. However, the multitude of mineral estates in Texas which have been created by a grant. reservation or lease of "oil, gas and other minerals" will, doubtlessly, continue to fuel the fires of litigation. EARLY TEXAS DECISIONS In view of the evolution of the Surface Destruc- tion Test, an exhaustive review of the early Texas