When there has been a severance of a mineral estate from a surface estate, whether by conveyance or reservation, which does not expressly provide for ownership or use of water produced from the lands, Texas law provides that the surface estate retains ownership of all sub-surface water. However, despite the surface estate’s ownership of the sub-surface water, the mineral estate lessee has a right to use as much of the water that is necessary to carry out operations under the lease.1
The Texas Supreme Court in Sun Oil Co. v. Whitaker2 held that a conveyance or reservation of oil, gas or minerals alone does not include sub-surface water.3 As a consequence ownership of sub-surface water remains with the surface estate.4 Furthermore, the Texas Supreme Court held that this rule providing for the surface estate's ownership of sub-surface water, absent an express statement to the contrary is not altered by the mineral content of the water.5 Therefore, salt water, for example, would remain a part of the surface estate, despite the presence of salt in the water.
While all sub-surface water is owned by the surface estate, absent an express statement to the contrary, the mineral estate lessee has a right to reasonable use of all sub-surface water that is necessary to carry out operations under the lease.6 Relying on the principal that the mineral estate lessee’s estate is the dominant estate, which has an implied grant of reasonable use of “such part and so much of the premises as is reasonably necessary to effectuate the purposes of the lease…”7 the Texas Supreme Court held that the mineral estate’s implied grant of reasonable use of the surface estate includes the right to use as much of the water necessary to carry out operations under the lease.8 This right of reasonable use not only includes using water for primary recovery of oil but also secondary recovery operations as well.9 However, the implied grant of reasonable use of the surface estate may not be extended to benefit other estates outside the original conveyance or reservation that created the surface and mineral estates.10 This means that a mineral estate lessee may not burden the surface estate by using water for recovery operations on other leases the lessee may own. Therefore, if a mineral estate has not been specifically granted ownership or usage rights of sub-surface water, the mineral estate lessee may still make reasonable use of all sub-surface water that is necessary to carry out operations under the lease, as long as that use does not extend to other leases the mineral estate lessee owns.
- Sun Oil Co. v. Whitaker, 483 S.W.2d 808, 811 (Tex. 1972).
- Id.
- See Id. at 811 (citing Fleming Found. v. Texaco, Inc., 337 S.W. 2d 846, 852 (Tex. Civ. App. 1960).
- Id.
- Robinson v. Robbins Petroleum Co., 501 S.W.2d 865, 867 (Tex. 1973) (“We are not attracted to a rule that would classify water according to a mineral contained in solution. …If a mineral in solution… were of such value or character as to justify production of the water for the extraction and use of the mineral content, we would have a different case. The substance extracted might well be the property of the mineral owner, and he might be entitled to use the water for production of the mineral. In either case the water itself is an incident of surface ownership in the absence of specific conveyancing language to the contrary. And in our case the saline content has no consequence upon ownership.”).
- Whitaker, 483 S.W.2d at 811.
- Id. at 810.
- Id. at 811.
- See Robinson, 501 S.W.2d at 867 (“The use of water for secondary recovery operations has been upheld as the right of the mineral lessee…”); Whitaker, 483 S.W.2d at 811 (“Courts have held waterflood projects to be reasonably necessary operations under oil and gas leases.”).
- Robinson, 501 S.W.2d at 868 (holding that an owner of the surface estate is entitled to protection from the mineral estate lessee’s use of the surface estate for the benefit of owners outside the premises and terms of the lease.).