Texas Eminent-Domain

Hello to all. I am an land owner with a current mineral lease. Terms of the lease specify there is absolutely no access. It is a small piece of land. The lessee wants to access my property for a road and what they call a service pipe (underground). If I refuse can they legally force me with a threat of Eminent Domain? There is other access form them, but mine is the shortest distance.

I believe the answer is no but allow me to ask questions. Did they have to cross your land to bring in the rig? If they didn't then common sense would dictate that they have access somewhere and they are just trying to save money now by building the road and pipeline on the shortest route between two points. I believe the pipeline unless it is a common commercial carrier, literally a public utility, that anyone may use can not invoke eminent domain. The mere"service pipe" will be a privately owned pipeline.

While a pipeline may be a common carrier, I don't think they could claim that the ROAD is. You may want to ask about that. In writing.

Have they made an offer to purchase the property? This is a requirement before they could condemn the property for eminent domain. They really don't want to purchase the property as that is the most expensive, they would much rather obtain an easement so you pay the taxes on it. I would sell before I granted an easement but that is my personal choice

HOW THE TAKING PROCESS BEGINS The taking of private property by eminent domain must follow certain procedures. First, the entity that wants to condemn your property must provide you a copy of this Landowner’s Bill of Rights before - or at the same time - the entity first represents to you that it possesses eminent domain authority. https://www.texasattorneygeneral.gov/files/agency/landowners_billof... I might bring this up if they start throwing the words eminent domain around loosely. You might even ask them in writing if they claim to have eminent domain. Only deal with them in writing!

The Texas RRC tap dances around the questions of whether the "service pipe" is a common carrier or not but if it were always, I think they would say so. Here is where you can find what they have to say. http://www.rrc.state.tx.us/about-us/resource-center/faqs/pipeline-s...

I think you should read through what the state has to say so you know what to ask, then consult a lawyer.

Only deal with those wanting the pipeline in writing. They will be very reluctant to put lies on paper as some people might consider it fraud. Ask them in writing if they are representing that they have eminent domain. If all you hear is crickets, you have your answer.

Hello Mr. Kennedy, Thank you for taking the time to write. You asked several questions, they do not have to cross my land for any reasons. They want a direct rout from point A to point B. They could take rout C to B or even D to B, those other options would cost more money only because of a longer distance.

They have not made an offer to purchase. The first contact was by phone the second was to show me their Easement Access Lease. I will research your recommend reading.

Thank you for help


t's not an issue of eminent domain,, but of the appurtenant rights of the mineral estate. If the lessee holds a valid lease, it has a qualified right to enter and use the surface premises for the purposes of producing, processing and transporting the minerals. Under common law and most state laws, the mineral estate is dominant and the surface estate is subservient with regard to those surface uses reasonably necessary to produce and market the minerals.

The lessee could of course have waived some or all of its appurtenant rights by express terms included in the lease. So, the lessee's right to enter the surface would be subject to only such limitations expressly set forth in the lease, and would need to be learned from that express language of any waiver of such rights. But any right not expressly waived by the lessee is still possessed by it. In short, it depends on the language of the limitation in the lease.

Maybe LDS will come back and post the limitations clause. LDS did state that the terms of the lease specify there is absolutely no access. Sometimes you have to take people at their word and answer the question they did ask.

If LDS did allow the lessee to write the clause, they could very well have purposely left a back door to surface entry in the way the clause was worded. If that is what happened, it certainly wouldn't raise my estimation of the industry.

Hello, Sorry for the delay in response. In response to Frederick information: Yes I understand the mineral estate is dominant to the surface estate and As you stated the lessee has rights to enter the surface. However the lease stipulates no access.

In response to Mr. Kennedy

I had a professional write and negotiate the lease for me. I informed the professional what was important to me and he took care of everything. You brought up the term back door. That is exactly why I am seeking information.

Oh and thanks to both of ya'll for writing.


I applaud your use of a professional to help with your lease, hopefully an oil and gas attorney. Even so, no one can give you a definitive answer without seeing the lease in its entirety. First, the exact wording in the 'no access' clause and whether it specifically covers both pipelines, roads, electric lines, etc. Does it give a list only or does it include the words 'including, but not limited to,' as that phrase would expand the list to other access. Second, at any point in the lease is the phrase (or similar words) 'Notwithstanding anything else in the lease' used? This will override any related clauses elsewhere in the lease.

Hi Tennis Daze, I keep reading over all of the great response and with each sentence that i read and re-read, confirms to me that my lease might not be that air tight. There might be some sort of back door that I missed. I guess I need to have an oil and gas attorney read the lease to answer my question. I was just hoping that I would not have to have that expense. Thank you for taking the time to write.


Have you told the oil company that you prefer they go around your surface? Does the landman claim that there is a right despite your lease language? If so, ask him to explain the reason in writing. If the company has no grounds, it might offer you a lot more money. If you get stuck in the end, I would see the road as far more invasive as there could be a lot of traffic and strangers would be on your property. Demand that the road and pipeline skirt the perimeter of your land and that it be fenced off. Good luck.

Hello Tennis Daze, To answer your questions:

1 I have not asked them to go around. They want to use my land because it is the shortest rout between point A to point B.

2 The landman has not made any claim that there is a right despite within the lease language. If it comes up I will ask for explanation in writing.

Yes the road would be invasive and I agree with you to skirt the perimeter of the land. Your suggestion of fencing it off I think is a good one. I did not think of that.

Thanks for taking your time and your advice.