Surface UseandSubsurface Migration Trespass(Beauty is only skin deep.)Michael P. MillerManaging Attorney, Sadler Law Firm, LLPThe State Bar of Texas3rd AnnualOil, Gas and Mineral Title Examination CourseJune 9-10, 2016Houston, TexasChapter 14

Michael P. MillerMichael P. Miller is a managing attorney at Sadler Law Firm, LLP, and devotes 100% ofhis practice to oil, gas and energy. Prior to joining Sadler, he was a landman with J.Mark Smith and Associates. He has a B.B.A. Management from Texas A&M University,College Station, Texas, and graduated from South Texas College of Law in 1996. He is amember of the College of the State Bar of Texas, Oil and Gas Division of the Texas BarAssociation, Alternative Dispute Resolution Division of the Texas Bar Association,Association of Professional Landmen, United States Oilfield Association, TexasAssociation of Mediators, Association of Conflict Resolution Houston, and Order ofKentucky Colonels. Prior to becoming an attorney, Michael was a Divisional Managerwith MetLife Resources and held (now FINRA or NASAA) series 6, 63, 7 and 24licenses. His most recent article, Lean Times Beget Lien Times, appeared in the UnitedStates Oilfield Association website.

Table of ContentsI.Scope of this Article .1II.Review of Surface Basics for Oil & Gas Operations .2A.The Surface .2B.What’s in a name? “Other Minerals” Defined . 3C.The Mineral Estate is Superior .4D.Reasonable Use . 4E.The Accommodation Doctrine 4F.Negligence .6G.Lease Surface Protections .6H.Surface Burdens and Pooled Units .8III.Subject Matters Related to FPL.A.Water Use (Generally) .9B.Injection and Disposal Wells 10C.SubsurfaceTrespass 11IV.Subsurface Trespass and the FPL ChroniclesA.FPL: The Exposition Begins .15B.FPL Round One .16C.FPL Round Two 16D.FPL Round Three .17E.FPL Round Four .19F.FPL Round Five 21V.FPL Conclusion .22Addendum “A” A-1Addendum “B” A-2

“Look again at that dot. That's here. That's home. That's us. On it everyoneyou love, everyone you know, everyone you ever heard of, every humanbeing who ever was, lived out their lives. The aggregate of our joy andsuffering, thousands of confident religions, ideologies, and economicdoctrines, every hunter and forager, every hero and coward, every creator anddestroyer of civilization, every king and peasant, every young couple in love,every mother and father, hopeful child, inventor and explorer, every teacherof morals, every corrupt politician, every "superstar," every "supreme leader,"every saint and sinner in the history of our species lived there--on a mote ofdust suspended in a sunbeam.”Dr. Carl Sagan, Pale Blue Dot: A Vision of the Human Future in Space

Surface UseandSubsurface Migration Trespass After FPL(Beauty is only skin deep.)Michael P. MillerJust like heaven. Ever’body wants a littlepiece of lan’. I read plenty of books outhere. Nobody never gets to heaven, andnobody gets no land.John Steinbeck, Of Mice and MenDoes the incursion of fluids injected into adisposal well constitute a trespass if theinjected fluids migrate beyond the boundary ofthe lease tract where the injection well islocated?I. Scope of this Article.Prior to the spectacle of FPL Farming, Ltd. v.Environmental Processing Systems, L.C.,1(“FPL”), this specific issue above had neverbeen addressed by a Texas court of appeals.The decade old saga has been closely watchedby many in the oil, gas, and injectioncontractor communities, and “[w]hile the casedealt with an injection well for nonhazardouswaste disposal—a so-called Class I well—industry experts expressed concern that theappeals court’s holding would also apply toClass II wells, which are widely used in oil andgas extraction.21Environmental Processing Systems, L.C. v. FPLFarming Ltd., 457 S.W.3d 414 (Tex. 2015); FPLFarming Ltd. v. Environmental Processing Systems,L.C., 383 S.W.3d 274 (Tex.App.—Beaumont 2012);FPL Farming Ltd. v. Environmental ProcessingSystems, 351 S.W.3d 306 (Tex. 2011); FPL FarmingLTD. v. Environmental Processing Systems, L.C., 305S.W.3d 739 (Tex. App.—Beaumont 2009, pet.granted)2Charles Nixon, The Continuing Saga of FPL Farmingv. Environmental Processing Systems: Will the TexasSupreme Court Set New Rules of Liability forUnderground Trespass?, 8 Tex. J. Oil Gas & Energy L.428, 429 (2013).In fact, the Texas Oil and Gas Association filedan amicus brief with the Texas Supreme Courtnoting that, if the decision were to stand,individual property owners could shutdown oiland gas injection well operations across thestate with claims of subsurface trespass.3 ”4The answer to the question above wasanswered in the affirmative by the Beaumontappellate court in 2012. However, the TexasSupreme Court granted review in 2013, duringwhich it specifically refused to consider theissue. Specifically, the Court stated “any errorin submitting the question of trespass for deepsubsurface wastewater migration [to the juryduring trial] was harmless because the juryfound no such liability, which obviates theneed to address whether this is a viable causeof action in Texas.” Significantly though, thecourt said that it “neither approve[d] ordisapprove[d] of the court of appeals’ analysisand holding,” regarding this issue, thusensuring continued uncertainty over the issue.Although FPL has not provided certainty in thelaw of subsurface trespass as it relates tomigrating deep wastewater injection wells, it isa great platform for review of the issues andanalysis surrounding such potential trespass.To address the question posed at the top ofthis article, we shall begin with a quick reviewof a few rights and burdens appurtenant tosurface ownership, and then look at theanalysis presented during the various phasesof FPL. At the end of the day, a fewconclusions will be drawn, but a correct guessas to the final answer will be left up to thegood judgment of each practitioner.3See Brief of Amicus Curiae Texas Oil and GasAssociation in Support of Petition for Review, Envtl.Processing Sys. L.C. v. FPL Farming Ltd. at 1, No. 120905, 2015 WL 496336 (Tex. Feb. 6, 2015), 2013 WL145861, at *1.4David Mann, FPL Farming, Ltd. v. EnvironmentalProcessing Systems, L.C.: Subsurface Trespass InTexas, notes.html

II. Review of Surface Basics for Oil & GasOperations.Practice does not make perfect. Onlyperfect practice makes perfect.Vince LombardiA. The Surface.For apparent reasons, the author of this articlewould sometimes remind his dates during hisundergrad years that looks aren’t everything,and that it’s what on the inside that counts. Atthe time, little was it realized that my oil andgas attorney preparations were alreadyunderway, because nothing could be more trueand important when it comes to the body ofreal property rights in oil and gas.Courts constantly struggle to apply the logic andcertainty of society’s established rules of law tonew issues presented by the rapidly changingtechnologies of today and tomorrow. Forexample, a common law rule which stood forthe concept that the owner of the surface hadexclusive dominion from the core of the earthto the stars above was widely relied uponduring the days of Shakespeare and Elizabeth I.However, this concept began to be rudelyinterrupted by hot air balloons and earlymunicipal sewer systems.Today, suchdominion is limited by astronauts andsatellites,5 Comcast and municipal flooddistricts, neighborhood cats and neighbors withtoo many cars and too many kids. Indeed, eachof us today have a quite limited reign over ofour own little castles.The origins of Cuius est solum, eius est usque adcoelum et ad infernos, “whoever’s is the soil, itis theirs all the way to Heaven and all the wayto the depths below” (the “ad coelumdoctrine”), is traced back to 13th century Italian5See Restatement (Second) of Torts § 159 cmt. g(1965) (recognizing air transportation as anexception to ad coelum).jurist Franciscus Accursius.6 It was subsequentlyadopted in common law by Sir Edward Coke,7and embraced by Sir William Blackstone,8 whofurther “defined the right of property as ‘thatsole and despotic dominion, which one manclaims and exercises over the external things ofthe world, in total exclusion of the right of anyother individual in the universe.’ ”9 The ‘right toexclude’ is an in rem right—one of the ‘bundleof sticks’ belonging to an owner of an interest inreal property,”10 which is the foundation forthe common law cause of action for trespass.Other than as a topic in conversations today, Adcoelum “has no place in the modern world.”116Dominic Roughton, Rights (&Wrongs) of Capture:International Law & the Implications of theGuyana/Duriname Arbitration, 26 J. Energy & Nat.Resources L. 374 383 (2008).7See Bury v. Pope (1587) Cro Eliz 118. Additionally,said Chief Justice William Best in 1824, "The fact is,Lord Coke had [often] no authority for what hestates, but I am afraid we should get rid of a greatdeal of what is considered law in Westminster hall, ifwhat Lord Coke says without authority is not law. Hewas one of the most eminent lawyers that everpresided as a judge in any court of justice." SeeGareth H. Jones, Sir Edward Coke English jurist,Encyclopedia Coke8William Blackstone, Commentaries on the Laws ofEngland, 4 vols. (Oxford 1765-1769) Book 2,Chapter 2.9Baldemar Garcia, Jr., et al., Trespass, SubsurfaceTrespass and the Texas Supreme Court, State Bar ofthTexas 30 Annual Advanced Oil, Gas and EnergyResources Law (2015) (citing Jace C. Gatewood, TheEvolution of the Right to Exclude—More Than aProperty Right, a Privacy Right, 32 Miss. C. L. s on the Law of England.)).10Id.11Coastal Oil & Gas Corp. v. Garza Energy Trust, 268S.W.3d 1 (Tex. 2008); (citing Study: Barnett ShaleBoosting North Texas Economy, Dallas Bus. J., Mar.28, 2008. As the Railroad Commission recentlynoted, “The Barnett Shale must be stimulatedtreated to increase permeability-in order for thefield to be economic.” Railroad Commission ofTexas, Water Use in the Barnett Shale,

“Wheeling an airplane across the surface ofone’s property without permission is a trespass;flying the plane through the airspace two milesabove the property is not. Lord Coke, whopronounced the maxim, did not consider thepossibility of airplanes.”12 “But neither did heimagine oil wells. The law of trespass need nomore be the same two miles below the surfacethan two miles above.”13A description of land includes the surface andall of the minerals naturally existingunderneath.14 When minerals are severed fromthe surface, either by a conveyance orreservation, the surface estate encompasses allrights to use and enjoy the surface except forthose surface rights belonging to the mineralowner.15 However, in the “modern world,”such rights are not always exclusive for reasonsof public policy.B. What’s in a name?Defined."Other" MineralsCall me Billy one more time and I will stabyou with this ink quill. William Shakespeare16Most mineral conveyances and reservationsinclude the words “oil, gas and other minerals,”and historically Texas courts have grappled withdefining “other minerals.” Prior to June 8,1983, the court used the “surface-destructiontest” to determine whether a particular bountyfrom the earth was a mineral, for wateruse barnett shale.html (last visited Aug. 27, 2008).)12Id. (referring to 1 FOWLER V. HARPER, FLEMINGJAMES, JR., & OSCAR S. GRAY, HARPER, JAMES ANDGRAY ON TORTS § 1.3, at 7 (3d ed. 2006))13Coastal, 268 S.W.3d 1, 11.14Unknown Heirs v. Whatley, 133 Tex. 608, 131S.W.2d 89, 92 (Tex.Comm’n App. 1939, opinionadopted).15Joseph Shade, Primer on the Texas Law of Oil andthGas, 4 edition.16Cuthbert Soup, Another Whole Nother Story(2010).not specifically described in a conveyance orreservation.Reasoning that a surface owner would notintend to convey substances which couldreasonably require the destruction of his or hersurface during the course of commercialextraction, the court held that near-surfacesubstances were not included in the description“other minerals”.17 Therefore, under this test,the conveyance or reservation of “otherminerals” did not include any substance thatwas at the surface, i.e., three to four feet belowthe surface, or any substance that was within200 feet below the surface, if any reasonablemethod of extracting the substance woulddestroy the surface.The surface-destruction test was replaced withthe “ordinary and natural meaning test,” inMoser v. United States Steel Corp.,18 and shouldbe applied to all conveyances or reservationsexecuted after June 8, 1983.19 Under this test,“other minerals” includes “all substances withinthe ordinary and natural meaning of thatword.” It does not matter how a mineral wasextracted or what harm occurred to the surfaceduring the extraction process. Of course, thiscreated more questions than it answered, soeffectively it opened the door to each substancebeing tested by litigation.Take away: The author has prepared a decisiontree which will assist in determining whether ornot a substance falls under the “other minerals”tag, included herein as Addendum “A”.17See Acker v. Guinn, 464 S.W.2d 348 (Tex. 1971;Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980).18Moser v. United States Steel Corp., 676 S.W.2d 99(Tex. 1984).19See Friedman v. Texaco, Inc., 691 S.W.2d 586 (Tex.1985); Holland v. Kiper, 696 S.W.2d 588 (Tex. App.—Tyler 1984, writ ref’d n.r.e.).

C. The Mineral Estate is Superior.All animals are equal, but some animals aremore equal than others.George Orwell, Animal FarmThe mineral estate is dominant over the surfaceestate, which is burdened by servitude. Themineral estate owner has a right to use so muchof the surface as may be reasonably necessaryto develop the mineral estate,20 and has asuperior right to interfere with the surfaceowner’s use of it.21However, the mineral owner’s superior rightsare not unfettered. Surface use by the mineralestate is limited to or by: (1) reasonable use, (2)the Accommodation Doctrine, (3) contractualprovisions included in a lease or surface useagreement, (4) in compliance with regulationsor ordnances, and (5) the requirement thatactivities be carried out in a non-negligentmanner.D. Reasonable Use.Reasonable use permits a mineral lessee to useas much of the surface in a manner that isreasonably necessary to effectuate the purposeof the lease, and is a rule well entrenched inTexas law.22 A few examples of reasonablynecessary activities include the construction ofroads,23 geophysical exploration,24 and theplacement of necessary building structures,20Harris v. Currie, 142 Tex. 93, 176 S.W.2d 302 (Tex.1943); Ball v. Dillard, 602 S.W.2d 521 (Tex. 1980).21thVest v. Exxon, 752 F.2d 959, 961 (5 Cir. 1985).22Warren Petroleum Corp. v. Monzingo, 304 S.W.2d362 (Tex. 1957); Brown v. Lundell, 344 S.W.2d 863(Tex. 1961); TDC Engineering, Inc. v. Dunlap, 686S.W.2d 346 (Tex. Civ. App.—Eastland 1985, writ ref’dn.r.e.).23Gulf Oil Corp. v. Walton, 317 S.W.2d 260 (Tex. Civ.App.—El Paso 1958, no writ); Humble Oil & RefiningCo. v. Williams, 420 S.W.2d 133, 135 (Tex. 1967).24Phillips Petroleum Company v. Cowden, 241 F.2dth586 (5 Cir. 1957); Yates v. Gulf Oil Corporation, 182thF.2d 286 (5 Cir. 1950).pipelines, tanks and treatment facilities.25 Theburden of proof is on a disgruntled surfaceowner to prove that the surface was not used ina reasonable manner. This can often be “a verydifficult burden of proof in litigation since thelessee/operator will always have a witness ortwo who will testify that all of the operator’sactions were reasonable.”26E. The Accommodation Doctrine.So, what I say to people is that politics hasgot to be about principle and values aboveall. Of course, there are times when youhave to make accommodations.Chris Patten, last British Governor of Hong KongReasonable use must be tempered with dueregard for the rights of the surface owner.27Due regard was well defined in Getty OilCompany v. Jones, 470 S.W.2s 618 (Tex. 1971), acase which is still studied in most Texas lawschools. The ruling in Getty is credited withcreating the “accommodation doctrine,” whichis also referred to as the doctrine of “alternativeuses”.In 1955, Jones acquired 653 acres of farm landsubject to an existing 1948 mineral lease, andinstalled a self-propelled circular irrigationsystem in 1965, which could only clear objectsless than 7 feet in height. The existing leasecontained no language of limitation upon thevertical height of operations equipment, but didprovide that all pipelines would be buriedbelow plow depth.25See Joyner v. R.H. Dearing & Sons, 134 S.W.2d 757(Tex. Civ. App.—El Paso 1939, writ dism’d judgmtcor.).26Robert G. “Bob” West, et al., Oil, Gas, and MineralLease Issues from the Surface Owner’s Perspective,thState Bar of Texas 36 Annual Advanced Real EstateLaw Course (2014).27Humble Oil & Refining Co. v. Williams, 420 S.W.2d133 (Tex.Sup. 1967); General Crude Oil Co. v. Aiken,162 Tex. 104, 344 S.W.2d 668 (1961); Brown v.Lundell, 162 Tex. 84, 344 S.W.2d 863 (1961).

Subsequent to installation of the irrigationsystem, operator Getty drilled two wells andinstalled pumping units which reached 17 and34 feet in upstroke height, respectively,precluding Jones from using much of hisirrigation system and causing significantagricultural value depreciation to Jones’ land.Evidence showed that another operator onJones’ tract, Adobe, had placed its pumps inconcrete cellars, so as to allow clearance for y, another operator near Getty’soperations, Amerada, used hydraulic pumpingunits that are less than 7 feet in height andwhich did not interfere with the same type ofsprinkler system used on another portion ofJones’ tract. At trial, witness testimony waspresented indicating there was a criticalshortage of labor that necessitated the use ofautomatic sprinkling equipment.Jones’ did not claim that Getty was negligent,nor deny Getty’s right to determine the locationof its wells; his position was that under the factsand circumstances, it was not reasonablynecessary for Getty to install pumping unitswhich denied Jones’ the use of his irrigationequipment. Getty’s contention was that it hadan absolute right to exclusive use of theairspace above the limited surface areaoccupied by their pumps and that only thelateral surface of the land should be subject tothe established rule of reasonably necessarysurface usage.While noting that where a mineral owner orlessee has only one method for developing andproducing the minerals, that method may beused regardless of surface damage,28 the Courtheld that “where there is an existing use by thesurface owner which would otherwise beprecluded or impaired, and where under theestablished practices in the industry there are28Citing Kenny v. Texas Gulf Sulphur Co., 351 S.W.2d612 (Tex.Civ.App.—Waco 1961, writ ref’d); seeTarrant Cnty. Water Control & Improvement Dist.No. One v. Haupt, Inc., 854 S.W.2d 618 (Tex. 1971).alternatives available to the lessee whereby theminerals can be recovered, the rule ofreasonable usage of the surface may requirethe adoption of an alternative by the lessee.”Upon motion for rehearing, the court stressedthat the burden is on the surface owner toestablish that (1) he has no alternativereasonable means for developing his land (inthis case, for agricultural purposes), and (2)demonstrate that there are alternative methodsused in the industry and available to theoperator which would not interfere with theexisting use of the surface estate. Note that thesurface use must already be in existence,(future plans do not count), and theAccommodation Doctrine is “limited tosituations in which there are reasonablealternative methods that may be employed bythe lessee on the leased premises to accomplishthe purposes of (the) lease.” Sun Oil Co. v.Whitaker, 483 S.W.2d 808 (Tex. 1972).The scope of existing use was narrowed by thecourt in Merriman v. STO Energy, Inc., 407S.W.3d 244 (2013). In this case, XTO drilled awell which impaired surface owner Merriman’scorral and annual cattle round-up. On appeal,the court generally categorized Merriman’sexisting use as “agricultural;” a rather broadspectrum which handed Merriman the difficultburden of showing there was no reasonablealternative agricultural use. However, the TexasSupreme Court held that the existing use should“be classified more narrowly” to the cattleoperations at issue.Merriman is important because it illustrates thecourtsrestrictiveapplicationoftheAccommodation Doctrine. While Merriman wasinconvenienced, he failed to prove that hecould not construct facilities that wouldaccommodate his cattle operations elsewhereon his surface, and therefore, was not grantedthe injunctive relief which he sought.

TAKE AWAY: The mineral estate is superior tothe surface estate, which permits a minerallessee to use as much of the surface in amanner that is reasonably necessary toeffectuate the purpose of the lease. Theburden of proof is on a disgruntled surfaceowner to prove that the surface was not used ina reasonable manner, which can be a toughburden for most land owners to pursue becausethe operator will typically employ expertwitnesses to counter any claims by a spleneticsurface owner.TAKE AWAY: The Accommodation Doctrinehands the burden of proof to the surface ownerto show (1) there are no alternative methods ofusing the land for its current purposes, otherthan ones requiring inconvenience or financialburdens so significant such alternative use isunreasonable, and (2) the existence ofalternative methods of operations which couldreasonably be employed by the operator.F. Negligence.I apprehend no danger to our country froma foreign foe Our destruction, should itcome at all, will be from another quarter.From the inattention of the people to theconcerns of their government, from theircarelessness and negligence, I must confessthat I do apprehend some danger.Daniel WebsterOperations, even though reasonable, must beconducted in a non-negligent manner. If anegligent act causes harm to the surface, thesurface owner may be able to recover damagesfor the impact of such acts.29As with“reasonableness” and “accommodations”, theburden of proof falls on the shoulders of thesurface owner. A few examples of instanceswhere the court found negligence and the29See Texaco, Inc. v. Spires, 435 S.W.2d 550 (Tex. Civ.App.—Eastland 1968, writ ref’d n.r.e.); McCarty v.White, 314 S.W.2d 155 (Tex. Civ. App.—Eastland1958, no writ).operator was held liable for damages include:causing harm by negligently handling saltwater,30 destroyed quarter horses due to anegligently constructed and maintained cattleguard,31 and damage due to oil leaks caused bynegligence.32Suits for surface damages are usually held in thesurface owner’s home county, and juries aretypically not friendly to the defendant in suchactions. Therefore, although the legal standardfor reasonable use is negligence, it is commonfor oil companies to settle such suits out ofcourt, even though negligence may be difficultto prove by the surface claimant.G. Lease Surface Protections and Provisions.The owner of the mineral estate is entitled bylaw to exercise their developmental rights,which includes the right of ingress and egressonto the surface for the purpose of developingthe underlying mineral estate. While commonlaw requires mineral owners or lessees to usethe surface in a reasonable and not negligentmanner, and to accommodate existing surfaceuse when reasonably possible, the burdentoprove otherwise is often very limiting on surfaceowners.There is no implied duty to restore the surfaceto its condition prior to exploration activities,33and Texas does not offer much statutorysurface-protection for land owners. Therefore,30Brown v. Lundell, 162 Tex 84, 344 S.W. 2d 863(Tex. 1961); General Crude Oil Co. v. Aiken, 162 Tex.104, 344 S.W.2d 668 (Tex. 1961); Currey v. Ingram,397 S.W.2d 484 (Tex. Civ. App.—Eastland 1965, writref’d n.r.e.); Ellis Drilling Corp. v. McGuire, 321S.W.2d 911 (Tex. Civ. App.—Eastland 1959, writ ref’dn.r.e.).31Texaco, Inc. v. Spires, 435 S.W.2d 550.32Speedman Oil Co. v. Duval County Ranch Co., 504S.W.2d 923 (Tex Civ. App.—San Antonio 1973, writref’d n.r.e.); Scurlock Oil Co. v. Harrell, 443 S.W.2d337 (Tex. Civ. App.—Austin 1969, writ ref’d n.r.e.).33Exxon Corp. v. Pluff, 94 S.W.3d 22 (Tex.App.—Tyler2002); Warren Petroleum Corporation v. Monzingo,304 S.W.2d 362 (Tex. 1957).

surface owners in Texas place a heavy relianceupon contractual provisions as a means ofsurface protection assurance.The surface owner’s ability to protect theirsurface is enhanced when they own any of theminerals underneath the subject land. When asurface owner also has a mineral interestbeneath their tract, they may (and often do)negotiate lease terms which provide forassurances that their surface interest will beprotected. Although such terms are frequentlyincluded in an oil and gas lease granted by thesurface owner, they may be separately agreedto in a surface use agreement. From a practicalstandpoint, the size and importance of both thesurfaceandmineralinterestunderconsideration will normally dictate a lesseeswillingness to negotiate special terms.When the surface owner only has a fractionalmineral interest, they will not have completecontrol over their surface. Co-owners in theminerals retain their right to develop themineral estate, independent of other coowners, and the surface will remain inferior tosuch superior rights.If the surface owner has no interest in theunderlying mineral estate, their only option is tonegotiate a surface use agreement with thelessee or operator. However, because themineral owner or lessee is not obligated toobtain a surface use agreement with a surfaceowner, nor to be responsible for , such an agreement may be difficult toobtain.Lastly: common surface protection clauses aremany and varied and there are numerous CLEarticles with example surface provisionsavailable on the Texas Bar site, including BrentHamilton, Representing Surface LandownersAffected by Oil & Gas Operations (2015); M.C.Cottingham Miles, Not In My Back Yard!Protecting Your Client’s Surface InterestsThrough Surface Use, Water Use, and SeismicAccess Agreements (2011); Robert G. ”Bob”West, et al., Oil, Gas, and Mineral Lease IssuesFrom The Surface Owner’s Perspective (2014);and David W. Wallace, Surface Use in Oil andGas Lease Operations (2015).TAKE AWAY: As the landman’s aphorism goes,“Everything in a lease agreement is negotiableexcept the names of the parties and the legaldescription of the subject lands.”TAKE AWAY: Frequently the surface andmineral estates are severed, in which case thesurface owner usually has non-existentinfluence on terms of the lease. The buyer ofan un-severed tract, in which the seller isreserving the minerals at the time of surfaceconveyance, should negotiate to obtain someportion of the minerals so they will be in abetter position to negotiate surface userestrictions with the lessee. If this is notpossible, the buyer may attempt to negotiatecovenants restricting surface use in any futurelease granted by the retaining mineral owner,their assigns or successors in interest. Suchcovenant language should clearly establish thatsuch covenants are not personal and run withthe lands. Where the seller only owns thesurface and no interest in the underlyingmineral estate, it may be advisable for thebuyer to attempt to obtain a small fractionalshare of the minerals from a current mineralowner, to provide the surface buyer someopportunity to negotiate surface use in anyfuture lease.Take Away:If representing a lessor, keepeverything in perspective.Small mineralacreage owners should be aware that theymight be wise to temper their demands and notbe “too aggressive” with their desired terms. Alease may be taken by an operator/lessee to“lock in the land”. However, if everything elseis even (science, facilities, etc.), operators havebeen known to exclude acreage from a unitbased upon “kinder” terms contained in thecompeting leases of adjoining tracts. As oneEast Texas small operator once said to the

author, “The closest I ever feel like God is whenI draw unit boundaries.”H. Surface Burdens and Pooled Units.34When the burdens of the presidency seemunusually heavy, I always remind myself itcould be worse. I could be a mayor.Lyndon B. JohnsonAs a very general rule, a lessee is not permittedto use the surface of one lease tract to aid inthe mining operations on another, adjacentlease tract. Robinson v. Robbins PetroleumCorporation, 501 S.W.2d 865 (Tex. 1973).Therefore, absent contractual agreements orconditions otherwise, an operator may be liablein a cause of action for trespass if they use thesurface estate of one tract, for production fromanother tract. However, pooling and unitizationcan alter permissible burdens.In Robbins, Robinson acquired an 80 acresurface tract in 1964, wherein the mineralsunderneath the surface were subject to a 1943lease ("Waggoner Lease") to Robbins, grantedby Waggoner on 221 acres, to which Waggonerowned the complete fee and from whichRobinson’s 80 acres surface was subsequentlytaken.After Robinson’s acquisition, three fieldwidesecondary waterflood units were established,with each including all or part of the 221 acresWaggoner Lease, and other lands. Robbins useda former well on Robinson’s 80 acres toproduce salt water, which was injected anddrove the three waterf

(Beauty is only skin deep.) Michael P. Miller Managing Attorney, Sadler Law Firm, LLP The State Bar of Texas 3rd Annual Oil, Gas and Mineral Title Examination Course June 9-10, 2016 Houston, Texas Chapter 14. Michael P. Miller Michael P. Miller is a managing attorney at Sadler Law Firm, LLP, and devotes 100% of