States generally take one of two different approaches concerning pore space ownership. The prevailing rule, often referred to as the American Rule, holds that the pore space is owned by the surface owner, rather than the mineral owner1. The overwhelming majority of jurisdictions follow the American Rule, including the states of Louisiana2, Oklahoma3, and New Mexico4. State legislatures in West Virginia5, Montana6, Wyoming7, and North Dakota8, among others, have passed laws codifying the surface owner’s ownership of the pore space.
In Texas, there is some confusion on pore space ownership resulting from conflicting court holdings. Texas is one of the few jurisdictions with some case law adopting the minority English Rule, which asserts that the mineral owner owns the rights to the pore space9. However, conflicting rulings within the state have led to ambiguity, as some Texas courts have applied the American Rule10. Most recently, in Myers-Woodward, LLC v. Underground Services Markham, LLC, the Texas Court of Appeals for the Thirteenth District held that pore space ownership belongs to the holder of the surface estate rights11. The matter was subsequently appealed to the Supreme Court of Texas.
Should the Supreme Court of Texas grant review and ultimately affirm the lower court’s ruling, it would settle the question of pore space ownership in favor of the surface owner in Texas. Notwithstanding the resultant potential clarity concerning ownership, such a ruling, however, would raise new questions regarding the rights – either implied or express – of the owner to penetrate severed mineral formations to access the pore space. It is well-established Texas law that mineral rights encompass the right to enter and extract minerals, including surface access and use to do so12. This common law right reflects the reality that “a grant or reservation of minerals would be wholly worthless if the grantee or reserver could not enter upon the land in order to explore for and extract the minerals granted or reserved.”13
The question remains whether pore space owners can rely on similar equitable principles to support an implied right to penetrate mineral formations to access the pore space. The holding in Harris v. Currie provides an argument that pore space rights are worthless without the right to access the pore space, potentially strengthening a case for implied access rights. Weakening this argument, among other things, is the traditional understanding that the mineral estate is the dominant estate, while the surface estate (potentially including pore space rights) is servient,14 and that, therefore, the pore space may not be afforded similar primacy to that of the mineral estate. Montana’s legislature has even affirmed through statute that the mineral estate remains dominant over the surface estate, including pore space.15 A court might also find that, despite access limitations, pore spaces hold inherent value as long as the surrounding strata provide subjacent support to the surface property.
Absent precedential case law, pore space owners must evaluate the risks associated with penetrating mineral formations. Legal actions for trespass or interference may result in damages, injunctions against injection well operations, fines, penalties, or other regulatory actions, including permit revocation. To mitigate such adverse events, pore space owners may elect to negotiate subjacent access rights with mineral owners through subsurface easements, cooperation agreements, or similar arrangements. These agreements might also be beneficial for addressing liability for damage to subsurface formations. Alternatively, legislators may introduce laws mandating and defining coordination requirements for various subjacent stakeholders, similar to existing laws in several mineral-producing states.
- See Ellis v. Ark. La. Gas Co., 450 F. Supp. 412, 421 (E.D. Okla. 1978), aff’d, 609 F.2d 436 (10th Cir. 1979).
- S. Natural Gas Co. v. Sutton, 406 So. 2d 669, 671 (La. Ct. App. 1981).
- See Ellis v. Ark. La. Gas Co., 450 F. Supp. 412, 421 (E.D. Okla. 1978), aff’d, 609 F.2d 436 (10th Cir. 1979).
- Jones-Noland Drilling Co. v. Bixby, 282 P. 382, 383 (N.M. 1929).
- W. Va. Code section 22-11B-18.
- See MONT. CODE ANN. 82-11-180(3).
- WYO. STAT. § 34-1-152(A).
- N.D. CENT. CODE § 47-31-03.
- Mapco, Inc. v. Carter, 808 S.W.2d 262 (Tex. App.), rev’d on other grounds, 817 S.W.2d 686 (Tex. 1991).
- Humble Oil & Ref. Co. v. West, 508 S.W.2d 812 (Tex. 1974); Emeny v. United States, 412 F.2d 1319, 1324 (Ct. Cl. 1969); Miss. River Transmission Corp. v. Tabor, 757 F.2d 662, 672 (5th Cir. 1985).
- Myers-Woodward, LLC v. Underground Servs. Markham, LLC, No. 13-20-00172-CV, 2022 Tex. App. LEXIS 4082, at *28 (Tex. App.—Corpus Christi June 16, 2022, pet. filed).
- Cowan v. Hardeman, 26 Tex. 217, 222 (1862).
- Harris v. Currie, 142 Tex. 93, 176 S.W.2d 302, 305 (1944).
- Getty Oil Co. v. Jones, 470 S.W.2d 618 (Tex); General Crude Oil Co. v. Aiken, 162 Tex. 104, 344 S.W.2d 668, 669 (1961); Gulf Production Co. v. Continental Oil Co., 139 Tex. 183, 132 S.W.2d 553, 563 (1939).
- Mont. Code Ann. § 82-11-180.
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