The Accommodation Doctrine and Merriman v. XTO Energy, Inc., 407 S.W.3d 244 (2013)

The accommodation doctrine provides that the party possessing the mineral estate (the dominant estate) “has the right to go onto the surface and extract the minerals, including incidental rights reasonably necessary for the extraction.”  Merriman v. XTO Energy, Inc., 407 S.W.3d 244 (Tex. 2013).  “It is a well established doctrine from the earliest days of the common law that the right to the minerals carries with it the right to enter and extract them.” Tarrant County Water Control & Improvement Dist. Number One v. Haupt, 854 S.W.2d 909, 911 (Tex. 1993).

To establish a violation of the accommodation doctrine, the surface owner must first prove that “(1) the lessee’s use completely precludes or substantially impairs the existing use, and (2) there is no reasonable, customary, and industry-accepted methods available to the lessee which will allow recovery of the minerals and also allow the surface owner to continue the existing use.”  Merriman, 407 S.W.3d at 249.  If the surface owner successfully proves both elements, then the surface owner “must further prove that given the particular circumstances, there are alternative reasonable, customary, and industry-accepted methods available to the lessee which will allow recovery of the mineral and also allow the surface owner to continue the existing use.  Id.  Thus, “the surface owner has the burden to prove that the inconvenience or financial burden of continuing the existing use by the alternative method is so great as to make the alternative method unreasonable.”  Id.

In Merriman, the surface owner used a 40-acre tract to conduct his annual roundup to sort cattle using temporary corrals and catch-pens and asserted a claim for injunctive relief against XTO arguing that XTO “failed to accommodate his existing use of the surface for the annual sorting and working part of his cattle operation. . . .”  Id. at 246.  The Texas Supreme Court in balancing Merriman’s and XTO’s rights considered “only whether Merriman produced legally sufficient evidence that he did not have any reasonable alternatives for conducting his cattle operations on the tract, not whether he produced evidence that he had no reasonable alternative for general agricultural uses.”  Id. at 250-51.  The Court noted that Merriman did not explain why the temporary corrals and pens could not be located somewhere else on the tract, but rather Merriman argued that he had used the corrals in the current location for years and moving the corrals would be inconvenient.

The Texas Supreme Court explained that “[e]vidence that the mineral lessee’s operations result in inconvenience and some unquantified amount of additional expense to the surface owner does not rise to the level of evidence that the surface owner has no reasonable alternative method to maintain the existing use.”  Id. at 252.  Thus, the Texas Supreme Court denied Merriman’s claim for injunctive relief.  Id.

A mineral lessee may mitigate the expense and cost of litigating a claim that it failed to accommodate the surface owner by negotiating a surface use agreement the defines the rights and obligations of the surface owner and mineral lessee relating to surface operations on the leased premises.  A surface use agreement is also beneficial to define the nature and amount of any damages payable to the surface owner as a result of the lessee’s operations on the leased premises.