A landman knocks, or a survey crew shows up, and you find out that the oil and gas under your land was sold off decades before you bought it. This page explains what the operator is actually entitled to do, what you are entitled to be paid, and the one question everybody asks first.
If someone else owns the minerals under your land and has leased them, you generally cannot stop the drilling. You can often influence where and how it happens, and in several states you are entitled to be paid for the damage. But the well is usually not yours to prevent.
We would rather tell you that plainly at the top than let you read four hundred words hoping for a different answer. The rest of this page is about the room you do have.
When minerals are severed from the surface, the law treats the mineral estate as dominant and the surface as servient. The mineral owner holds an implied easement to use as much of the surface as is reasonably necessary to explore for, develop and produce the minerals.
The Railroad Commission of Texas states it about as bluntly as it can be stated: the mineral owner may use the surface "without getting permission from the surface owner and without restoring the surface or paying for any non-negligent damages it causes," and the Commission "generally lacks jurisdiction over these issues."
Oklahoma says the same thing. In Turley v. Flag-Redfern Oil Co., 1989 OK 144, 782 P.2d 130, the Oklahoma Supreme Court held that "the surface estate is servient to the dominant mineral estate for the purposes of oil and gas development," and that surface owners lack standing to appeal Corporation Commission drilling and spacing orders because they hold no mineral interest. Oklahoma surface owners are protected by the Surface Damages Act instead, which is covered below.
There are real limits inside that rule. The use must be reasonably necessary for mineral development, not merely cheaper or more convenient for the operator, and it is measured against usual and customary industry practice. An operator whose surface use is negligent, unreasonable or excessive is liable in damages in every state, including Texas.
This is the main common-law tool a surface owner has, and it is narrower than most people expect.
It comes from Getty Oil Co. v. Jones, 470 S.W.2d 618 (Tex. 1971). Jones had installed a self-propelled irrigation sprinkler running about seven feet above the ground. Getty then drilled two wells with pumping units roughly 17 and 34 feet high, which blocked four of the irrigation pivot points. The court held that the reasonably necessary limitation reaches vertical airspace as well as ground, and that where a reasonable alternative exists that lets the operator produce without destroying the surface owner's existing use, the operator can be made to use it.
A citation warning, because it circulates. Getty Oil Co. v. Jones is 470 S.W.2d 618 (Tex. 1971). It is sometimes miscited as 511 S.W.2d 160 (1974), which is actually Diamond Shamrock Corp. v. Phillips, an Arkansas case. If a document you have been handed uses the second cite, whoever wrote it copied someone else's error.
Merriman v. XTO Energy, Inc., 407 S.W.3d 244 (Tex. 2013), sets out the test. The surface owner carries the burden on all of it:
Merriman lost. He ran cattle and used portable pens for an annual roundup, and the court held he had not raised a fact issue that he lacked a reasonable alternative on the same tract. It expressly refused to consider other land he leased elsewhere.
Three things follow, and they are why surface owners often lose these cases:
In Coyote Lake Ranch, LLC v. City of Lubbock, 498 S.W.3d 53 (Tex. 2016), the Texas Supreme Court extended the doctrine to a severed groundwater estate. That widened where the doctrine applies. It did not loosen the Merriman elements.
Adopted by case law, with citations we were able to confirm:
| State | Case |
|---|---|
| Texas | Getty Oil Co. v. Jones, 470 S.W.2d 618 (Tex. 1971) |
| Arkansas | Diamond Shamrock Corp. v. Phillips, 511 S.W.2d 160 (Ark. 1974) |
| Utah | Flying Diamond Corp. v. Rust, 551 P.2d 509 (Utah 1976) |
| North Dakota | Hunt Oil Co. v. Kerbaugh, 283 N.W.2d 131 (N.D. 1979) |
| West Virginia | Buffalo Mining Co. v. Martin, 267 S.E.2d 721 (W. Va. 1980) |
| New Mexico | Amoco Production Co. v. Carter Farms Co., 703 P.2d 894 (N.M. 1985) |
Colorado adopted it by statute, at Colo. Rev. Stat. § 34-60-127, and the burden works differently there in the surface owner's favor. The surface owner must first show the operator's use materially interfered with their use, and the burden then shifts to the operator to prove it met the accommodation standard.
Oklahoma has not clearly adopted the accommodation doctrine. We looked, and could not find an Oklahoma Supreme Court decision adopting it, and the multi-state surveys that list adopting states leave Oklahoma out. Oklahoma protects surface owners by statute instead, which is a different and in some ways better tool. Oklahoma courts do apply the older common-law standard requiring use to be reasonably necessary and exercised with due regard for both estates.
Pennsylvania went a different direction in 2026. In Pennesi v. DL Resources, Inc., 2026 PA Super 139 (Pa. Super. Ct. July 1, 2026), the Superior Court held that a mineral owner has no automatic right to place a well on a separately owned surface estate. Where the deed or lease contains no express surface access grant, the mineral owner must show an implied easement by strict necessity, and the court wrote that such a right "is always of strict necessity and never exists as a mere matter of convenience." That is a materially higher bar than accommodation, and it is precedential across Pennsylvania.
52 O.S. §§ 318.2 to 318.9, in effect since July 1, 1982. This is the strongest set of procedural rights on this page, and Oklahoma surface owners routinely do not know they have them.
The operator petitions the district court to appoint appraisers. Then, in order:
Two things in that process cut against you, and you should know both before you dig in. First, under § 318.5, once the operator files the petition for appraisers, "the operator may enter the site to drill." Filing is what unlocks entry, not agreement. Second, if you are the party who demands the jury trial and you do not beat the appraisers' award, § 318.5 assesses all court costs including reasonable attorney fees against you. Demanding a jury is a real decision with a real downside.
The measure of damages in Oklahoma is the diminution in the fair market value of the surface property caused by the drilling and maintenance operations. That is a before-and-after property value question, not a per-acre fee and not lost profits. Ward Petroleum Corp. v. Stewart, 2003 OK 11, 64 P.3d 1113; Davis Oil Co. v. Cloud, 1986 OK 73, 766 P.2d 1347, which also upheld the Act's constitutionality including as applied to leases that predated it.
Section 318.9 provides treble damages where an operator willfully and knowingly enters before giving notice, or without your agreement, or fails to keep the bond posted, or fails to reach agreement and then does not ask the court for appraisers. It also expressly preserves your right to collect additional damages the operator causes later.
Under Ward Petroleum you may also join a related tort claim in the same case, though the statutory proceeding and the tort claim run on separate procedural tracks with separate trials.
| State | Surface damage statute | Notice before drilling |
|---|---|---|
| Oklahoma | 52 O.S. §§ 318.2 to 318.9 | Yes, before entry, plus 5-day negotiation duty |
| North Dakota | N.D. Cent. Code ch. 38-11.1 | 20 days written, and 7 days for non-disturbing activity |
| Montana | Mont. Code Ann. §§ 82-10-501 to 82-10-511 | Yes, § 82-10-503 |
| West Virginia | W. Va. Code §§ 22-7-1 to 22-7-8 | Yes, and § 22-7-4 preserves common law claims |
| New Mexico | NMSA 1978 §§ 70-12-1 to 70-12-10 | 30 days before operations, 5 business days for surveys |
| Colorado | Accommodation by statute, C.R.S. § 34-60-127 | No notice requirement in that section |
| Texas | None | None |
| Pennsylvania | None | None, but see Pennesi above |
New Mexico's statute is worth singling out because § 70-12-5 requires the operator to deliver a proposed surface use and compensation agreement with the notice, and it lists what that agreement has to address. It is the best checklist in American law of what a surface use agreement should cover, and it is useful even if your land is in a state with no statute at all.
Texas has no surface damage statute. Bills have been introduced repeatedly and have not passed. A Texas surface owner is protected by common law and by contract, and that is all.
This is the hardest thing to hear and the most common misunderstanding we field.
Royalty is a share of production carved out of the mineral estate. When the minerals were severed from your surface, every one of those rights left with them: the right to lease, the right to bonus, the right to delay rentals, and the right to royalty. If you own no mineral interest, you have no claim to royalty no matter how much oil comes out from under your land or how much disruption you live with.
What you can be paid for is damage, not production. That is a different thing, calculated a different way, and usually a much smaller number.
Taking New Mexico's statutory list as the template, a surface use agreement should address:
Your leverage is highest before the mineral lease is signed, which means it is highest if you also own some of the minerals, or if you can persuade whoever does to put surface protection clauses into the lease. Once the lease is signed with no surface protections in it, the lessee has no obligation to sign a surface use agreement with you at all. If you own minerals and surface together and you are about to lease, that is the moment to act.
Not usually. But here is the honest list of what you can do:
Most people who ask us this have never seen the severance. We will pull the recorded chain and tell you what you own, surface only or surface and minerals, and if there are minerals we will tell you what they are worth. Free, no obligation, no mailing list.
Get a Free Valuation Ask a LandmanStatutes and cases cited are current to August 2026 to the best of our research, and state law varies more on this subject than on almost any other in oil and gas. Two points on this page are negative findings rather than holdings: we could not locate an Oklahoma decision adopting the accommodation doctrine, and we could not locate a Texas surface damage statute. Both are stated as what we found rather than as settled law. Berlin Royalties is a mineral buyer and a landman shop in Tulsa, not a law firm, and this page is general information rather than legal advice about your land. If an operator is about to build a pad on your place, hire a lawyer in your state.