Two recent Texas Supreme Court cases examine the surface use doctrine.
Key Operating & Equipment, Inc. v. Hegar, 435 S.W.3d 794 (Tex. 2014)
The Court held that when two mineral leases have been pooled, but production is from only one lease, the mineral lessee has the right to access the surface of the non- producing lease in order to access the producing lease. Id. at 799. The Court reasoned that because production from the pooled part of the producing tract was legally also production from the non-producing tract, the operator had the right to use a road located on the non-producing tract in order to access the producing tract. Id.
Coyote Lake Ranch, LLC v. City of Lubbock, 498 S.W.3d 53 (Tex. 2016)
The Court in this case found that the accommodation doctrine applies to resolve conflicts between a severed groundwater estate and surface estate. Id. at 64-65. A surface owner must be provided an accommodation if he can prove that (1) the groundwater owner’s use of the surface completely precludes or substantially impairs the existing use, (2) the surface owner has no available, reasonable alternative to continue the existing use and (3) given the particular circumstances, the groundwater owner has available reasonable, customary, ad industry-accepted methods to access and produce the water and allow continuation of the surface owner’s existing use. Id.