                              Fourth Court of Appeals
                                     San Antonio, Texas
                                                OPINION
                                        No. 04-14-00903-CV

                                      LIGHTNING OIL CO.,
                                           Appellant

                                                  v.

              ANADARKO E&P ONSHORE LLC fka Anadarko E&P Company, LP,
                                 Appellee

                    From the 365th Judicial District Court, Dimmit County, Texas
                              Trial Court No. 14-01-12171-DCVAJA
                          Honorable Amado J. Abascal III, Judge Presiding

Opinion by:      Patricia O. Alvarez, Justice

Sitting:         Marialyn Barnard, Justice
                 Patricia O. Alvarez, Justice
                 Jason Pulliam, Justice

Delivered and Filed: August 19, 2015

AFFIRMED

           This is a subsurface trespass case between lessees of two adjacent mineral estates.

Lightning Oil Company sued Anadarko E&P Onshore LLC to prevent Anadarko from siting a well

on the land overlying Lightning’s mineral estate and from drilling through Lightning’s mineral

estate to reach Anadarko’s adjacent mineral estate. Because the surface estate owner controls “the

matrix of the underlying earth,” and the summary judgment evidence conclusively proves the

surface estate owner gave Anadarko permission to site and drill, we affirm the trial court’s order.
                                                                                   04-14-00903-CV


                                         BACKGROUND

       This appeal involves adjacent surface estates in Dimmit County and the severed mineral

estates beneath them.

A.     Cutlass Lease

       The Cutlass Lease is a severed mineral estate under a portion of the Briscoe Ranch. When

a previous owner of the fee simple to what is now the Briscoe Ranch conveyed the fee by warranty

deed, the grantor severed the mineral estate by reserving “all mines of, and all oil, gas and all

minerals, on and under the said land.” The reservation did not expressly include any right to, or

control of, any subterranean structures—the earth—underlying the surface estate.

B.     Lightning’s Lease

       In 2009, the Cutlass Lease owners executed a lease with Lightning. In 2013, the parties

executed an amended lease that includes the following provisions:

       [T]he right of exploring for, developing, operating, producing, owning, marketing,
       treating and transporting oil and gas from the Leased Premises, subject to the
       limitations contained in this Lease. The term “gas” shall mean hydrocarbon gases
       only and shall not include helium, carbon dioxide or other commercial gases.
              Lessor expressly excepts from this Lease and reserves to Lessor, all
       minerals of every kind and character, except those herein defined. Lessor further
       reserves all rights to geothermal water resources, including the rights to methane
       and other hydrocarbons from such water.

C.     Anadarko’s Lease; Surface, Subsurface Agreement

       Anadarko leased a mineral estate under the Chaparral Wildlife Management Area

(CWMA), which is adjacent to the surface estate overlying the Cutlass Lease. Anadarko’s lease

allows it to explore, and produce oil and gas from, the CWMA. In a separate Surface Use and

Subsurface Easement Agreement, Anadarko got permission from Briscoe Ranch to place drilling

rigs on the surface estate overlying the Cutlass Lease and to drill through the earth under the

Briscoe Ranch to form wells that open and bottom in the CWMA.

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D.     Lightning’s Suit, Arguments

       Lightning sued Anadarko to prevent Anadarko from siting wells on the Briscoe Ranch and

from drilling through the earth within the boundaries of the Cutlass Lease. As the leaseholder of

the mineral estate, Lightning asserts it has the right to exclude others from drilling. It contends it

has the exclusive right to determine who can drill through the earth within the boundaries

circumscribing the Cutlass Lease. Lightning insists that Briscoe Ranch’s permission is not enough,

and Lightning should not have to trust Anadarko not to take any seismic surveys as Anadarko drills

through subterranean structures that harbor Lightning’s oil and gas.

E.     Anadarko’s Arguments

       Anadarko acknowledges it has begun siting wells on the Briscoe Ranch overlying the

Cutlass Lease. Anadarko also acknowledges it plans to drill wells 8,000 feet vertically before

deviating the wellbores to reach its leasehold under the CWMA. Anadarko argues that Briscoe

Ranch, as the surface estate owner, controls the subterranean structures, and Anadarko needs only

Briscoe Ranch’s permission. Anadarko argues that, as a matter of law, it cannot commit a trespass

by traversing the subterranean structures in which Lightning’s oil and gas hydrocarbon molecules

may lie. According to Anadarko, because it has the surface estate owner’s permission to site and

drill, Lightning’s claim for tortious interference must fail as a matter of law.

F.     Procedural Posture

       When Lightning learned Anadarko was preparing to drill on land above the Cutlass Lease,

Lightning sought an injunction to prevent Anadarko from drilling through the Cutlass Lease area

to reach Anadarko’s adjacent mineral estate.

       1.      Anadarko’s Motions for Summary Judgment

       After some discovery, Anadarko moved for summary judgment on traditional and no

evidence grounds. In its traditional motion against Lightning’s claims of trespass and tortious
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interference with contract, Anadarko asserted it established its defense of justification as a matter

of law. In its no evidence motion, Anadarko asserted there was no evidence of at least one essential

element of each of Lightning’s claims.

       2.      Lightning’s Motions for Summary Judgment

       Lightning moved for traditional summary judgment on (1) its request for a permanent

injunction against Anadarko drilling through the Cutlass Lease and (2) its request for the court to

declare that Briscoe Ranch could not “grant Anadarko a right to trespass through Lightning’s

property.” Lightning did not expressly move for traditional summary judgment on its tortious

interference with contract claim. In its no evidence motion, Lightning moved for summary

judgment on Anadarko’s affirmative defense of justification.

       3.      Trial Court’s Actions

       In its November 24, 2014 order, the trial court denied Lightning’s motion, and without

stating the grounds for its decision, it granted Anadarko’s motion. It then severed the remaining

issues to make its order final and appealable. Lightning appeals the trial court’s order.

                                     STANDARDS OF REVIEW

       To prevail on a traditional motion for summary judgment, the movant must show “there is

no genuine issue as to any material fact and the [movant] is entitled to judgment as a matter of

law.” TEX. R. CIV. P. 166a(c); accord Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.

1985). In our review of the trial court’s order, we examine “the evidence presented in the motion

and response in the light most favorable to the party against whom the summary judgment was

rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding

contrary evidence unless reasonable jurors could not.” Mann Frankfort Stein & Lipp Advisors,

Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); see City of Keller v. Wilson, 168 S.W.3d 802,

827 (Tex. 2005).     “We indulge every reasonable inference and resolve any doubts in the
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nonmovant’s favor.” Rhȏne-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); accord

Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex. 2007) (per curiam).

       A defendant moving for traditional summary judgment must conclusively disprove at least

one essential element of each of the plaintiff’s claims. Elliott–Williams Co. v. Diaz, 9 S.W.3d 801,

803 (Tex. 1999); Doe v. Boys Clubs of Greater Dall., Inc., 907 S.W.2d 472, 476–77 (Tex. 1995).

“When both sides move for summary judgment and the trial court grants one motion and denies

the other, the reviewing court should review both sides’ summary judgment evidence[,] . . .

determine all questions presented[,] . . . [and] render the judgment that the trial court should have

rendered.” FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000) (citations

omitted); accord Mann Frankfort, 289 S.W.3d at 848.

       We review a no evidence summary judgment using a legal sufficiency standard. King

Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003). “We review the evidence

presented by the motion and response in the light most favorable to the party against whom the

summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors

could, and disregarding contrary evidence unless reasonable jurors could not.” Mack Trucks, Inc.

v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006) (citing City of Keller, 168 S.W.3d at 827).

       If a trial court grants a motion for summary judgment that includes both traditional and no

evidence grounds, we evaluate the no evidence grounds first. Merriman v. XTO Energy, Inc., 407

S.W.3d 244, 248 (Tex. 2013); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If

the nonmovant fails to meet its no evidence burden for any claim, we need not address the

corresponding traditional motion ground. See Ford Motor Co., 135 S.W.3d at 60; Vause v. Liberty

Ins. Corp., 456 S.W.3d 222, 226 (Tex. App.—San Antonio 2014, no pet.).

       We first address Lightning’s trespass claim.



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                                               TRESPASS

A.      Elements of Trespass

        A trespass is “‘an unauthorized entry upon the land of another,’” Envtl. Processing Sys.,

L.C. v. FPL Farming Ltd., 457 S.W.3d 414, 424 (Tex. 2015), such as an “‘entry upon another’s

land . . . by causing or permitting a thing to cross the boundary of the premises.’” Gregg v. Delhi-

Taylor Oil Corp., 344 S.W.2d 411, 416 (Tex. 1961) (quoting Glade v. Dietert, 295 S.W.2d 642,

645 (Tex. 1956)). The plaintiff alleging trespass must show it owned or otherwise had a legal right

to exclude others from the property. See Envtl. Processing Sys., 457 S.W.3d at 424; Cain v.

Fontana, 423 S.W.2d 134, 137 (Tex. Civ. App.—San Antonio 1967, writ ref’d n.r.e.).

B.      Lightning’s View of Its Mineral Estate

        The central question in this appeal is the nature of Lightning’s interest. Lightning asserts

its mineral estate includes the right to exclude others from the estate; it insists Anadarko is

committing an ongoing trespass on Lightning’s leasehold interest. To support its assertion,

Lightning relies on several cases. We briefly review its principal cases.

        1.      Edwards Aquifer Authority v. Day

        At oral argument, Lightning asserted that Edwards Aquifer Authority v. Day, 369 S.W.3d

814 (Tex. 2012), was its “best case.” Lightning points to Day’s reiteration that “oil and gas are

owned in place.” Id. at 829. Day also reiterated that a “lessee’s interest [is] a separate, real interest,

‘amount[ing] to a defeasible title in fee to the oil and gas in the ground.’” Id. (second alteration in

original) (quoting Tex. Co. v. Daugherty, 176 S.W. 717, 719 (Tex. 1915)). Citing Day, Lightning

seems to argue that its right to ownership of the oil and gas in place in the Cutlass Lease is not just

ownership of “the oil and gas in the ground,” but is actually ownership of “the oil and gas and the

ground.” Cf. id. (emphasis added). Day did not address the central question here: Who owns the

earth in which a mineral estate may be contained? Cf. id. Because, as we later discuss, this court,
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the Fifth Circuit, and the Texas Supreme Court have each addressed the question which Day does

not, we conclude that Day is distinguishable.

       2.      Stephens County v. Mid-Kansas Oil & Gas Co.

       Lightning also relies on Stephens County v. Mid-Kansas Oil for the proposition that it has

the “exclusive right” to the use and possession of the mineral strata. See Stephens Cnty. v. Mid-

Kansas Oil & Gas Co., 254 S.W. 290, 295 (Tex. 1923). Stephens uses the term “exclusive right”

a number of times such as the following:

       •    the exclusive right to appropriate [minerals] to any extent desired by the grantee and
            his assigns, id. at 293;
       •    the exclusive right to possess, use, and appropriate gas and oil, id.; and
       •    the exclusive right to conduct operations to mine, store, and transport [the minerals],
            id. at 294.

In each instance, Stephens is reciting the rights conveyed in a specific lease. Id. at 293–94.

Stephens simply states that an oil and gas lessee typically has “the exclusive right to prospect for,

produce, and dispose of the [oil and gas]” in the leased area. Id. Stephens does not state that an

oil and gas lease automatically conveys to the lessee the exclusive right to control the subterranean

structures within the boundaries circumscribing the lease; Stephens does not directly address who

owns the earth surrounding the minerals. Cf. id. at 293–94.

       3.      Villarreal v. Grant Geophysical, Inc.

       Lightning cites this court’s proposition from Villarreal that “trespass under Texas law

includes subsurface trespass as in the oil and gas context.” Villarreal v. Grant Geophysical, Inc.,

136 S.W.3d 265, 268 (Tex. App.—San Antonio 2004, pet. denied) (citing Gregg, 344 S.W.2d at

416). This court, like others, recognized that a reflection seismographic survey of the plaintiff’s

mineral estate without the plaintiff’s permission could constitute a trespass. Id. at 268–70 (citing

Phillips Petrol. Co. v. Cowden (Cowden I), 241 F.2d 586 (5th Cir. 1957) and Phillips Petrol. Co.


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                                                                                      04-14-00903-CV


v. Cowden (Cowden II), 256 F.2d 408, 409 (5th Cir. 1958)) (discussing Cowden I and Cowden II

and stating that a geophysical trespass also requires physical entry or injury on the surface estate).

       But unlike Villarreal, there is no evidence that Anadarko conducted a seismographic

survey of Lightning’s mineral estate. Despite Lightning’s fears that Anadarko will conduct a

survey without Lightning’s permission, there is no evidence that Anadarko has done so; Villarreal,

Cowden I, and Cowden II are inapt.

       4.      Hastings Oil Co. v. Texas Co.

       Lightning argues that Hastings supports Lightning’s view that it may bar Anadarko from

drilling through the earth containing Lightning’s mineral estate. In Hastings, the Texas Supreme

Court determined that a trespass may occur where an adjacent mineral estate’s well bottoms in the

plaintiff’s mineral estate. Hastings Oil Co. v. Tex. Co., 234 S.W.2d 389, 398 (Tex. 1950).

Lightning offers no evidence that Anadarko has bottomed or opened a well within the Cutlass

Lease, and Anadarko acknowledges that Lightning would have a cause of action against Anadarko

(subject to the rule of capture) if Anadarko produced oil or gas from the Cutlass Lease. Hastings

is distinguishable.

       5.      Chevron Oil Co. v. Howell

       Lightning also argues that Howell addressed the same situation at issue here. In Howell,

Chevron started drilling a directional well from Howell’s surface estate through a severed mineral

estate to reach an adjacent mineral estate. Chevron Oil Co. v. Howell, 407 S.W.2d 525, 526 (Tex.

Civ. App.—Dallas 1966, writ ref’d n.r.e.). Howell sued and the trial court granted a temporary

injunction against Chevron’s drilling. Id. Because Chevron drilled without permission from

Howell or the mineral estate’s owner, the Dallas court affirmed the trial court’s order. Id. at 528.

       Lightning cites Howell to show Anadarko cannot drill without Lightning’s permission, but

several factors undermine Howell’s applicability in this appeal. First, Howell is distinguishable
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on its facts. In Howell, the surface estate owner did not give Chevron permission to drill. Cf. id.

at 526. Here, the evidence conclusively proves Briscoe Ranch gave Anadarko its permission.

Next, Howell rejected Chevron’s drilling through one mineral estate to reach another “without

appellees’ [the surface and mineral estate owners’] permission.” Id. at 528. But Howell did not

expressly consider whether only the surface estate owner’s permission would have been sufficient.

Finally, the proposition which Lightning contends Howell contains and which Lightning seeks to

use—that the mineral interest owner may exclude others from drilling through its estate—has been

contravened by this court and others. E.g., Springer Ranch, Ltd. v. Jones, 421 S.W.3d 273 (Tex.

App.—San Antonio 2013, no pet.).

C.     Anadarko’s View of Lightning’s Mineral Estate

       Anadarko argues Briscoe Ranch—the surface estate owner—owns and controls the earth

surrounding the minerals. Anadarko insists that Lightning—the mineral estate owner—may not

bar Anadarko from drilling through the earth within the boundaries of the Cutlass Lease. Anadarko

relies on, inter alia, opinions from this court, the Fifth Circuit, and the Texas Supreme Court.

       1.      Springer Ranch, Ltd. v. Jones

       In Springer Ranch, we “construe[d] the term ‘surface estate’ to mean the portions of the

earth[] over which the surface estate owner holds dominion after a severance of the mineral estate.”

Springer Ranch, 421 S.W.3d at 282. We added that “ownership of the hydrocarbons does not give

the mineral owner ownership of the earth surrounding those substances.” Id. at 283 (citing Emeny

v. United States, 412 F.2d 1319, 1323 (Ct. Cl. 1969) (per curiam)).

       2.      Dunn-McCampbell Royalty Interest, Inc. v. National Park Service

       In Dunn-McCampbell, a case addressing mineral estates under the Padre Island National

Seashore, the Fifth Circuit noted that “the conveyance of mineral rights ownership does not convey

the entirety of the subsurface.” Dunn-McCampbell Royalty Interest, Inc. v. Nat’l Park Serv., 630
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F.3d 431, 441 (5th Cir. 2011). It observed that under Texas law, the surface estate owner, not the

mineral estate owner, “owns all non-mineral ‘molecules’ of the land, i.e., the mass that undergirds

the surface of the [conveyed land].” Id. at 442.

       3.      Humble Oil & Refining Co. v. West

       In West, the Texas Supreme Court clarified the nature of the surface estate. The Wests

conveyed fee simple title to Humble Oil but reserved royalties on the oil and gas produced from

the land. Humble Oil & Ref. Co. v. West, 508 S.W.2d 812, 815 (Tex. 1974). Following Emeny,

the court noted that the Wests—who retained the now-severed mineral estate—no longer owned

the underground reservoir because “the surface of the leased lands remaining as the property of

the [surface estate owners] included the geological structures beneath the surface.” Id. (citing

Emeny, 412 F.2d at 1323).

D.     Control of Subsurface Structures

       Having reviewed the applicable law, we conclude that the surface estate owner controls the

earth beneath the surface estate. See Dunn-McCampbell, 630 F.3d at 441; West, 508 S.W.2d at

815; Springer Ranch, 421 S.W.3d at 282. The mineral estate owner is entitled to “‘a fair chance

to recover the oil and gas in or under [the surface estate],” Coastal Oil & Gas Corp. v. Garza

Energy Trust, 268 S.W.3d 1, 15 (Tex. 2008) (quoting Gulf Land Co. v. Atl. Ref. Co., 131 S.W.2d

73, 80 (Tex. 1939)), but absent the grant of a right to control the subterranean structures in which

the oil and gas molecules are held, the mineral estate owner does not control “the mass that

undergirds the surface of the [conveyed land],” Dunn-McCampbell, 630 F.3d at 442.

       Thus, Lightning does not own or control the earth surrounding any hydrocarbon molecules

that may lie within the boundaries of the Cutlass Lease. See Dunn-McCampbell, 630 F.3d at 441;

West, 508 S.W.2d at 815; Springer Ranch, 421 S.W.3d at 282. As the surface estate owner, Briscoe

Ranch controls the surface and subsurface; it may grant Anadarko permission to site a well on its
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ranch, drill down through the earth within the boundaries of the Cutlass Lease, and directionally

alter its wellbore into the CWMA. See Dunn-McCampbell, 630 F.3d at 441; West, 508 S.W.2d at

815; Springer Ranch, 421 S.W.3d at 282. Anadarko may not open or bottom its wellbores in, or

otherwise produce oil or gas from, the Cutlass Lease without Lightning’s permission, but with

Briscoe Ranch’s permission, Anadarko may penetrate the earth under the Briscoe Ranch to access

Anadarko’s mineral estate in the CWMA. See Dunn-McCampbell, 630 F.3d at 441; West, 508

S.W.2d at 815; Springer Ranch, 421 S.W.3d at 282.

E.     No Evidence of Essential Element of Trespass

       In its no evidence motion, Anadarko moved for summary judgment on the ground that

there was no evidence that it had committed a trespass on Lightning’s mineral estate. See Envtl.

Processing Sys., L.C. v. FPL Farming Ltd., 457 S.W.3d 414, 424 (Tex. 2015) (describing a trespass

as “‘an unauthorized entry upon the land of another’”); Gregg v. Delhi-Taylor Oil Corp., 344

S.W.2d 411, 416 (Tex. 1961). Anadarko argues there is no evidence that Lightning has a legal

right to exclude Anadarko from drilling through the earth within the boundaries of the Cutlass

Lease, and thus there is no evidence of an essential element of Lightning’s trespass claim. See

Envtl. Processing Sys., 457 S.W.3d at 424; Cain v. Fontana, 423 S.W.2d 134, 137 (Tex. Civ.

App.—San Antonio 1967, writ ref’d n.r.e.).

       Given the terms of its lease and the applicable law we have previously discussed, we

necessarily conclude Lightning has no right to exclude others from the earth surrounding the oil

and gas hydrocarbons in the Cutlass Lease. See Dunn-McCampbell, 630 F.3d at 441; West, 508

S.W.2d at 815; Springer Ranch, 421 S.W.3d at 282. Thus, because the evidence also conclusively

proves Anadarko has Briscoe Ranch’s permission to site one or more wells on the Briscoe Ranch

and drill through the earth beneath the ranch to reach the CWMA, Lightning failed to meet its

burden to provide more than a scintilla of evidence on at least one essential element of trespass.
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See Envtl. Processing Sys., 457 S.W.3d at 424 (elements of trespass); Mack Trucks, 206 S.W.3d

at 582 (no evidence motion). Because the trial court could have properly denied Lightning’s

traditional motion and granted Anadarko’s no evidence motion on Lightning’s trespass claim, we

need not address Anadarko’s traditional motion. See Ford Motor Co., 135 S.W.3d at 600; Vause,

456 S.W.3d at 226.

                           TORTIOUS INTERFERENCE WITH CONTRACT

        Lightning also sued Anadarko for tortious interference with Lightning’s lease.

A.      Tortious Interference Elements

        “A party alleging tortious interference must prove four elements to sustain its claim: (1)

that a contract subject to interference exists; (2) that the alleged act of interference was willful and

intentional; (3) that the willful and intentional act proximately caused damage; and (4) that actual

damage or loss occurred.” ACS Inv’rs, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997);

accord Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000) (citing

ACS Inv’rs).

B.      Anadarko’s No Evidence Motion

        In its no evidence motion against Lightning’s claim of tortious interference with contract,

Anadarko asserted that Lightning failed to meet its burden on the essential elements of proximately

caused damage and actual damage. See Prudential Ins., 29 S.W.3d at 77; ACS Inv’rs, 943 S.W.2d

at 430. Anadarko argues there is no evidence it has opened or bottomed any well in the Cutlass

Lease, and thus there is no evidence that Anadarko proximately caused any damage to Lightning’s

lease or that Lightning has suffered any actual damage or loss. But in its affidavits, Lightning

contends that Anadarko’s operations on and under the surface are tortiously interfering, and will

necessarily tortiously interfere, with its right to produce oil and gas from the Cutlass Lease. Thus,



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Lightning argues, its affidavits are some evidence of Anadarko’s tortious interference with

Lightning’s lease.

C.      Anadarko’s Traditional Motion

        Even assuming arguendo that Lightning produced some evidence of Anadarko’s alleged

tortious interference, because the trial court did not state the basis for granting Anadarko’s motion,

we must still address Anadarko’s traditional motion on its affirmative defense of justification. See

FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000) (“When a trial court’s

order granting summary judgment does not specify the grounds relied upon, the reviewing court

must affirm summary judgment if any of the summary judgment grounds are meritorious.”);

accord Progressive Cnty. Mut. Ins. Co. v. Kelley, 284 S.W.3d 805, 806 (Tex. 2009).

        1.      Justification Defense

        “Justification is an affirmative defense to tortious interference with contract . . . .”

Prudential Ins., 29 S.W.3d at 80. A defendant may justify its actions “based on the exercise of

either (1) [its] own legal rights or (2) a good-faith claim to a colorable legal right, even though that

claim ultimately proves to be mistaken.” Id.; accord Sterner v. Marathon Oil Co., 767 S.W.2d

686, 691 (Tex. 1989).

        2.      Anadarko’s Right to Drill

        In its traditional motion, Anadarko argued it established its affirmative defense of

justification as a matter of law. The summary judgment evidence includes the Surface Use and

Subsurface Easement Agreement between Briscoe Ranch and Anadarko. The agreement shows

Briscoe Ranch granted Anadarko permission to (1) site wells on the Briscoe Ranch overlying the

Cutlass Lease and (2) directionally drill through the earth within the Cutlass Lease boundaries to

reach Anadarko’s CWMA mineral estate. Because Briscoe Ranch, not Lightning, controls the

subterranean structures of the earth underlying the Briscoe Ranch and within which the Cutlass
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Lease is located, we conclude that Briscoe Ranch had the right to grant Anadarko permission to

drill through that earth to reach the CWMA mineral estate.

       3.      Affirmative Defense Established

       The summary judgment evidence conclusively proves Briscoe Ranch gave Anadarko

permission to site and drill, and thus Anadarko acted within its own legal rights granted by Briscoe

Ranch, and its justification defense is established as a matter of law. See Prudential Ins., 29

S.W.3d at 80; Sterner, 767 S.W.2d at 691. Thus, we conclude the trial court could have properly

denied Lightning’s no evidence motion and granted Anadarko’s traditional motion for summary

judgment against Lightning’s claim that Anadarko tortiously interfered with Lighting’s lease.

                                            CONCLUSION

       Lightning’s lease conveyed to it “the right of exploring for, developing, operating,

producing, owning, marketing, treating and transporting oil and gas from the [Cutlass Lease].” Its

lease did not convey any right to control the subterranean structures in which any hydrocarbon

molecules might be found, and Texas law does not automatically convey such a right in an oil and

gas lease. Thus, as the surface estate owner, Briscoe Ranch could grant Anadarko permission to

site wells on the surface above the Cutlass Lease and drill through the earth within the boundaries

of the Cutlass Lease to reach Anadarko’s adjacent mineral estate.

       Because Lightning failed to produce any evidence of at least one essential element of

Anadarko’s alleged trespass, and because Anadarko conclusively established its affirmative

defense of justification, the trial court could have granted Anadarko’s no evidence motion against

Lightning’s trespass claim and Anadarko’s traditional motion against Lightning’s tortious

interference with contract claim.

       We affirm the trial court’s order.

                                                        Patricia O. Alvarez, Justice
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