Today, I'm going to continue on my self-study summary of the Dominant/Servient Estate Theory as covered in the Texas Law of Oil and Gas, Second Edition.
The authors note that generally, the mineral owner's rights are established at the time of severance. This means that a landowner who severs the mineral estate from the surface must thereafter consider the mineral estate when they are developing the surface - you can't harm or destroy the minerals. Likewise, you can't subdivide the surface and put in covenants that limit or prevent the development of oil, gas, or other minerals in such a manner that deprives the mineral owner of their rights. This is also the case for subsequent purchasers of the surface estate, who then take their parcels/tracts subject to the mineral owner's pre-existing rights. The authors note, and in drafting Oil and Gas Title Opinions, this is where we would most often see this come up, that the mineral owner's implied rights of surface use are not affected by subdivision deed restrictions which might limit the use of the lots for residential purposes only. Finally, the authors note that a grantor who reserves the minerals and the right to use all the subsurface water for oil and gas exploration and production are not affected by surface subdivisions.
In the next paragraph, the Authors note that unless it's expanded by subsequent agreement, the rights of surface and subsurface use imbued on the mineral estate are limited to the surface estate from which it is severed. This is to say that if I own the minerals under Blackacre and the minerals under Whiteacre, I cannot use the surface of Blackacre to develop the minerals under Whiteacre without a separate agreement with the surface owner(s) of Blackacre. The text lists the disposal of salt water - you can inject salt water beneath the leased premises, but not for water from wells off the lease. The text does list an apparent exception.
Pooling or unitizing provides a different issue, and one which the authors address quite well.
