# Surface Owner Rights When Someone Else Owns the Minerals > The dominant mineral estate, the accommodation doctrine after Getty and Merriman, Oklahoma's Surface Damages Act, which states have damage statutes, and the honest answer to whether you can stop a well on your land. Source: https://www.berlinroyalties.com/surface-owner-rights/ Publisher: Berlin Royalties, a veteran-owned oil and gas mineral and royalty buyer in Tulsa, Oklahoma, buying for its own account since 2014. Call or text 918-984-1645. License: free to quote and cite with attribution to Berlin Royalties and a link to the source URL. Split Estate ยท Plain English ## They own the minerals. You own the surface. Now what? 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. [Ask a Landman, Free](https://www.berlinroyalties.com/ask-a-landman/) [Do I Own the Minerals?](https://www.berlinroyalties.com/find-out-if-you-own-mineral-rights/) ## The short answer 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. ## Why the mineral estate wins: the dominant estate rule 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. ## The accommodation doctrine 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. ### What you actually have to prove *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: - The operator's use **completely precludes or substantially impairs your existing use**, and - There is **no reasonable alternative method available to you** to continue that existing use, and - There **are** alternative reasonable, customary and industry-accepted methods available to the operator that would let it recover the minerals and let you continue. 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: - The doctrine protects an **existing** use, not a planned one and not a more profitable one - Your alternatives are judged **on that tract only** - The alternative you demand of the operator has to be genuinely customary, not merely imaginable 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. ## Which states have adopted it 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. ## Oklahoma's Surface Damages Act 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. ### What the operator must do - **Written notice of intent to drill** before entering, stating the proposed location and the approximate date drilling will start (§ 318.3) - **Good faith negotiation** over surface damages, and the statute makes this a duty of both parties, beginning within **five days** of the notice (§ 318.3) - **Post security** of $25,000 with the Secretary of State, in the form of a surety bond, letter of credit, cash or CD, which must stay in place as long as drilling continues (§ 318.4) ### If you cannot agree The operator petitions the district court to appoint appraisers. Then, in order: - **Ten days' notice** of the petition to the other party - **Three appraisers**, one chosen by you, one by the operator, and a third chosen by those two, who must be a state-certified general real estate appraiser. Selection within **twenty days** - The appraisers file a written report within **thirty days** of appointment - Either side may file exceptions within **thirty days** after the report is filed - Either side may demand a **jury trial** within **sixty days** after the report is filed **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. ### What you are paid, and the teeth in the statute 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. ## Other states | 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. ## You do not get a royalty. Here is why 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. ### What you can actually be paid for - **Statutory surface damages**, in the states listed above - **Negligence or excessive use damages**, available everywhere including Texas - **Contract damages** under a surface use agreement, which is the only route in Texas and Pennsylvania - **Seismic permit fees**, for permission to shoot seismic where the implied easement does not clearly cover it - **Pipeline and road easements** across land the implied easement does not reach, which is often your strongest card because those frequently serve other tracts and the operator has to buy them - **Treble damages** for willful statutory violations in Oklahoma and New Mexico - **Later damages**, which Oklahoma's § 318.9 expressly preserves ## The surface use agreement is where your leverage actually lives Taking New Mexico's statutory list as the template, a surface use agreement should address: - Well pad, road and pipeline **placement**, specifications, maintenance and design - **Ingress and egress** terms, including gates and who closes them - **Pit and equipment** construction, placement and maintenance - **Water** use and impoundment - **Plant life** removal and restoration - Modification of surface water **drainage**, and runoff and erosion control - **Noise, weeds, dust, traffic, trespass and litter** - **Interim and final reclamation** - **Indemnification** for injury to persons - The **compensation** offer itself ### The timing point nobody tells surface owners 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. ## So can you stop the well? Not usually. But here is the honest list of what you can do: - **Change where and how, not whether.** In an accommodation state, if the location destroys an existing use, you have no alternative on that tract, and the operator does have a customary alternative, a court can make it accommodate you - **Negotiate a surface use agreement.** Nearly all real protection comes from here - **Enforce the notice and procedure rules** if you are in a statutory state, where willful violation means treble damages in Oklahoma - **Sue for negligent, unreasonable or excessive use.** Available everywhere, independent of the accommodation doctrine - **Use what the operator needs and does not own**, such as an off-lease road, a pipeline route, or a water source - **Read your deed.** If the severance deed or lease has an express surface protection clause or a no-surface-occupancy provision, the contract beats the default rule - **If you are in Pennsylvania**, *Pennesi* now requires strict necessity where there is no express surface access grant, which can defeat a proposed location outright ### Not sure whether you own the minerals under your own land? 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](https://www.berlinroyalties.com/free-valuation/) [Ask a Landman](https://www.berlinroyalties.com/ask-a-landman/) ## Related - [How to find out if you own mineral rights](https://www.berlinroyalties.com/find-out-if-you-own-mineral-rights/) - [Executive rights and non-executive mineral interests](https://www.berlinroyalties.com/executive-rights/) - [Oklahoma mineral rights](https://www.berlinroyalties.com/oklahoma/) - [Leasing your minerals](https://www.berlinroyalties.com/lease-my-minerals/) - [Before you sign anything](https://www.berlinroyalties.com/before-you-sign/) - [Mineral owner's glossary](https://www.berlinroyalties.com/glossary/) Statutes 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.