I have a question regarding surface ingress and egress. We are looking to buy additional land in Texas (112.36 acres) and the seller who has told us that they own 50% of the mineral rights has agreed to waive their surface ingress and egress rights.
Not fully understanding this, but does this 50% waiver of surface access allow us to refuse access to the property for any mineral right activities?
Also, since it is not 100%, what are the effects of not having the other 50%? Can they proceed without agreement?
Thanks for any help or if you can point me in the right direction it would be great.
The oil company will just get permission from the other 50% owner/s and their right to produce would trump your intent to deny access so the waiver of ingress is meaningless to you.
Thanks, that is what I figured, is there any other way to protect the surface?
Not that I can think of. I think you have to assume that they will be drilling on the land, if not soon then possibly in the next 100 years and decide if you still wish to purchase it.
Phillip Luce said:
Thanks, that is what I figured, is there any other way to protect the surface?
How about tracking down the other 50% interest what is the best way going about it, I have the names but they look to be deceased. So would need to track down who it was transferred to, where would that information be?
r w kennedy said:
Not that I can think of. I think you have to assume that they will be drilling on the land, if not soon then possibly in the next 100 years and decide if you still wish to purchase it.
Phillip Luce said:
Thanks, that is what I figured, is there any other way to protect the surface?
You may have to search for a probate or affidavits of heirship. You might do well to hire a landman to search for you. The other 50% of the mineral rights may be spread between a dozen people now.
Phillip Luce said:
How about tracking down the other 50% interest? What is the best way going about it? I have the names but they look to be deceased. So would need to track down who it was transferred to. Where would that information be?
r w kennedy said:
Not that I can think of. I think you have to assume that they will be drilling on the land, if not soon then possibly in the next 100 years and decide if you still wish to purchase it.
Phillip Luce said:
Thanks, that is what I figured. Is there any other way to protect the surface?
Maybe, if you contacted someone from the other one-half owner(s) and they agreed to sell you a 1% interest, then you would have the “controlling” interest.
Wouldn’t this give you the total control?
Comments?
A couple of things.
You could obtain a surface waiver of the remaining mineral interests. Let us take a situation where 99% have waived surface use. 1% has not. Because the 1% has the right to enter and exploit his minerals, could a mineral lessee enter into a lease agreement with the 1% owner and enter the property under that lease? Probably so. I have no consensus, or any case law in Texas or elsewhere.
The question on which surface waivers should be contacted is further complicated if the lands are placed in a voluntary pooled unit. Veal v Thompson says that the pooling transaction creates a cross conveyance of minerals, so therefore, after the lands are pooled, then the additional mineral owners under your tract could increase to the total mineral owners in the unit, with the accompanying rights of ingress and egress.
Creating a covenant running with the land in the conveyance of ingress and egress to you would be a good first step and opening a line of communication with the other owners would be a good second step.
Thanks, the more I read and learn the more I’m interested in the whole process. I have seen that sometimes answers only lead to more questions.
Regarding tracking down the additional ownership, what is the best way to go about it? I have visited the County Clerk’s office and tracked the deed records back to early 1900s. But I’m not sure on how to interpret it all.
Is there anything that can be placed in the surface contract other than the waiver of ingress and egress that can protect the surface owner?
Thanks again, I have read a lot of your posts they are written very well, breaks it down in an easy way to understand.
Dear Phillip,
Thanks for the kind words. If it were me, I would hire a landman to run out the mineral title. Most title companies do not do this type of work and really are not known for running out skips in the chain of title.
Contact me through my website and I will send you some language that I have put in my conveyances in the past. Not legal advice, just business advice.
Phillip, for the waiver route I would want 100%. If you left the smallest 1% opening and that person leased and the operator decided they will produce, the only way to stop them would be in court. The courts seem to be on the oil companies’ side. If you wanted to stop the drilling of the 1% who wants to produce you are wanting to render his property worthless. Such a lawsuit could cost $100,000 or more and you may not win. I wouldn’t suggest that you give up but I would keep my open for the point at which it starts looking like more trouble than it’s worth and decide if you want the property even if it does have a well, road, pipeline on it. I most certainly would not feel secure with 51% of the ingress/egress rights waived or even 60% as too many individuals’ rights, backed by oil company money, of the dominant estate, would have to be abridged to keep your surface free of a well. Good luck.
I agree with Buddy that you should hire a landman and track down the heirs. Not only does it give you the opportunity to work out a surface use agreement with them, they may even be interested in selling their 50% interest. If you can acquire more than 50% ownership of the minerals, it gives you leverage to deal with the others in a surface use agreement, as most companies will not sign a lease unless they can get at least 51% of the minerals leased.
If you can’t get any of the heirs to sell, you might try to work a deal giving you executive rights, which does give you control over the surface use. The heirs could keep their 50% of the minerals. You should check your chain of title carefully to see exactly what type of rights you have, as there are several different types of rights that exist with mineral rights.
I appreciate all of the help; the inputs have been very valuable.
There is a new turn of events, now they have agreed to convey 50% of the surface and 50% of the executive rights.
Think I have a good understanding now of the surface rights. Now what does having the additional 50% of the executive rights bring to the table?