As discussed in our previous article, [" Understanding Surface Use by an Oil and Gas Lessee," Texas Lawyer, Oct. 20, p. 13], Texas adheres to the general rule that the mineral estate is dominant over the surface estate. But its dominance is not absolute. For example, it is limited to those surface uses that are “reasonably necessary” to conduct mineral operations. This truism—and the inherent tension it creates when the mineral and surface estates are owned by different parties—can prompt the question “to accommodate or not to accommodate.”
While this question might not lead to a dilemma of actual Shakespearian proportions, it can cause a practical and legal conundrum. Indeed, surface owners and mineral owners or lessees are likely to have disparate opinions concerning the reasonableness of surface operations, especially when those operations impact or interfere with existing surface structures or uses. In an attempt to resolve this conundrum, the Texas Supreme Court adopted what is known as the “accommodation doctrine.”
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