{"id":2296,"date":"2014-11-17T02:44:19","date_gmt":"2014-11-17T08:44:19","guid":{"rendered":"http:\/\/agrilife.org\/texasaglaw\/?p=2296"},"modified":"2026-04-17T15:31:29","modified_gmt":"2026-04-17T20:31:29","slug":"new-york-times-article-highlights-surface-owner-hardship-in-texas-oil-boom","status":"publish","type":"post","link":"https:\/\/agrilife.org\/texasaglaw\/2014\/11\/17\/new-york-times-article-highlights-surface-owner-hardship-in-texas-oil-boom\/","title":{"rendered":"New York Times Article Highlights Surface Owner Hardship in Texas Oil Boom"},"content":{"rendered":"

Last week, the\u00a0New York Times published an article titled, “A County Resents Oil Drilling, Despite the Money It Brings In<\/a>.”\u00a0 The author featured Glasscock County, Texas and, in particular, cotton farmer Dennis Seidenberger.\u00a0 The article did an excellent job at highlighting the hardships facing surface owners, who do not own any portion of the mineral estate underlying their land, in Texas.<\/p>\n

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Mineral v. Surface Estates<\/strong><\/p>\n

Under Texas law, ownership of the surface of the land and the minerals underlying the land may be severed.\u00a0 This means that oftentimes, one person owns the surface of the land and uses that land for farming or ranching, while another person owns the minerals underlying the property.\u00a0 Importantly, when this occurs, the mineral estate is considered dominant over the surface estate.\u00a0 This means that, absent an agreement to the contrary,\u00a0the owner of the mineral estate–or the oil and gas company to whom the mineral owner leased the rights–has the automatic right, generally speaking,\u00a0to use as much of the surface estate as is reasonably necessary to produce the minerals, without permission from or payment to the surface owner.\u00a0 For example, absent any contrary language in the lease or a surface use agreement,\u00a0an oil and gas company leasing the mineral rights can place a drilling pad in the middle of a farmers field, has the right to construct roads, frack ponds, gathering lines, and even disposal wells.\u00a0 Further, because substances like caliche, gravel, sand, and groundwater are considered part of the surface estate–of which the mineral lessee has the right to use as much as is reasonably necessary–that means that an oil and gas company has the right to use these substances to produce the minerals underlying the land without consent or compensation to the surface owner.<\/p>\n

This dominant mineral estate\u00a0policy imposes a great,\u00a0and often unexpected and unknown,\u00a0burden on surface owners, despite the fact that they receive none of the benefits from the mineral lease, such as royalty payments or bonus payments.<\/p>\n

What Can Surface Owners Do?<\/strong><\/p>\n

As explained above, the general rule allowing a mineral owner the automatic right to\u00a0use as much of the surface as is reasonably\u00a0 necessary applies absent an agreement between the parties modifying that rule.\u00a0 In order to\u00a0protect themselves,\u00a0surface owners should\u00a0seek to negotiate contractual protections for themselves and their property with the mineral owner\/lessee.\u00a0 If the surface owner also owns some portion of the minerals, he or she should ensure that terms related to protection of the surface be included in the oil and gas lease.<\/p>\n

For surface owners who do not own any portion of the minerals–approximately 1\/3 – 2\/3 of all Texas farmers–the best thing to do is to seek a surface use agreement with the oil and gas company leasing the minerals.\u00a0 Although the companies are under no obligation to sign such an agreement in Texas, many times they are willing to do so in order to maintain good relations with the surface owners and avoid issues each time they enter the lease.\u00a0 The surface owner should seek as many protections as possible, including payment for damages to the surface estate, compensation for the construction of roads and drilling pads, and payment for the use of groundwater.\u00a0 As explained above, however, landowners are often not in a great bargaining position because, under Texas Law, there is no requirement that the company pay any such damages or compensation or enter into a surface use agreement.<\/p>\n

What Terms Should Surface Owners Seek?<\/strong><\/p>\n

Surface owners negotiating with oil and gas companies, whether in the context of an oil and gas lease or a surface use agreement, should seek to ensure protection for their land and operation.<\/p>\n

The following list is certainly not exhaustive, but it provides surface owners with some of the key terms to consider in negotiating a surface use agreement.\u00a0 I hope to complete a detailed checklist of terms to consider in the next few months.<\/p>\n