Liberating split estates

Abstract

The dominance of the severed mineral estate has been long been considered an axiomatic principal of oil and gas law. Within this paradigm, the split-estate mineral owner enjoys broad rights to use the surface estate as is reasonable and necessarily incident to mineral development. Dominance, accordingly, can be understood as exit: the right of the mineral owner to develop its subsurface property without association or coercion from others. However, this formalist view has eroded in the face of shifting social norms regarding environmental protection, the interests of privacy and enjoyment of surface owners, the recognition of new property interests in the subsurface, and changing sociological views regarding the value and utility of fossil energy production. While surface land has become increasingly fragmented and more valuable, advances in horizontal drilling technology have permitted erosion of the doctrine of mineral estate dominance. A realist view of the ordering between surface and mineral estates today indicates that the estates are increasingly enmeshed and indivisible within coupled human and natural systems. As a result, a binary and boundary-based adjudication of the concomitant rights of surface and mineral owners discourage cooperation and result in utilitarian concerns, environmental harms, and inefficient resource use. This article examines the convergence of surface and mineral estates within the framework of mismatched property interests and common resource problems. It challenges the binary dominantservient ordering of surface and mineral property. It suggests that resource-scale management facilitates incorporation of liberal commons principals into governance of the vertical commons in a manner that supports more robust environmental regulation and economically and socially productive use of shared resources.