153 Davis v. Devon Energy Prod. Co., L.P.

Richard F. Brown

 
The following is not a legal opinion. You should consult your attorney if the case may be of significance to you.
 
Davis v. Devon Energy Prod. Co., L.P., 136 S.W.3d 419 (Tex. App.—Amarillo 2004, __ ), reviews the tension between the dominance of the mineral estate and the accommodation doctrine in a controversy over a lessee’s right to build permanent all-weather caliche roads through a cotton field. The lessee of a mineral lease has the right to use as much of the premises in such a manner as is reasonably necessary to effectuate the purpose of the lease. But under the accommodation doctrine, when there is an existing use of the land’s surface which would be precluded or impaired, and when under established practices in the industry there are alternatives available to the lessee whereby the minerals can be recovered, the circumstances may require the adoption of an alternative by the lessee. In searching for a standard by which to gauge the degree of permissible interference, the court noted that the Supreme Court had stated in Acker v. Guinn that by the execution of a lease “[i]t is not ordinarily contemplated . . . that the utility of the surface for agricultural or grazing purposes will be destroyed or substantially impaired.” The Davis court seized on the word “substantially” and held that the accommodation doctrine only applies when “the impairment experienced by the surface owner is, at the very least, substantial.” Whether the elements necessary to invoke the accommodation doctrine are established is a question of fact, which, in this case, were proven. For example, the evidence showed that in a three month period, 248 proposed well treatments were cancelled because roads did not allow passage to the wells, while the surface owner’s evidence amounted to little more than a showing that the caliche roads would be an inconvenience.
 
The significance of the case is that the test for subordinating the mineral estate to the surface estate is that the operations of the mineral estate would otherwise “destroy or substantially impair” the surface estate.