Opinion issued March 7, 2013




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————

                              NO. 01-10-00350-CV
                           ———————————
           KEY OPERATING & EQUIPMENT, INC., Appellant
                                        V.
              WILL HEGAR AND LOREE HEGAR, Appellees



                    On Appeal from the 21st District Court
                         Washington County, Texas
                        Trial Court Case No. 33,968



             DISSENTING OPINION ON REHEARING
     For all of the following reasons, I respectfully dissent.1


1
     Despite repeated requests from the Court to do so, Key Operating declined to
     respond to the Hegars’ motion for rehearing. Thus, this panel did not have the
                  “This is not an accommodation doctrine case.”

      The majority attempts to resolve this case based upon the common law

accommodation doctrine, which it holds applies to this case—a point which even

the Hegars dispute.

      Under Texas law, the dominant mineral estate has the right to reasonable use

of the surface estate to produce minerals, but this right is to be exercised with due

regard for the rights of the surface estate’s owner. Getty Oil Co. v. Jones, 470

S.W.2d 618, 621 (Tex. 1971). This concept of “due regard,” which is known as

the accommodation or alternative means doctrine, was first articulated in Getty Oil

and balances the rights of the surface owner and the mineral owner in the use of

the surface. Tarrant Cnty. Water Control & Improvement Dist. No. 1 v. Haupt,

Inc., 854 S.W.2d 909, 911 (Tex. 1993). Under this common law doctrine, “where

there is an existing use by the surface owner which would otherwise be precluded

or impaired, and where under the established practices in the industry there are

alternatives available to the lessee whereby the minerals can be recovered, the rules

of reasonable usage of the surface may require the adoption of an alternative by the

lessee.” Getty Oil, 470 S.W.2d at 622; see also Haupt, 854 S.W.2d at 913 (“if

reasonable alternative drilling methods exist that protect [the surface owner’s


      benefit of an industry perspective when considering the Hegars’ motion for
      rehearing.


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existing use], then an accommodation by the mineral owners would be required”).

The surface owner bears the burden of proving the applicability of the

accommodation doctrine. Haupt, 854 S.W.2d at 911; Getty Oil, 470 S.W.2d at

623.

       The majority’s reliance upon the accommodation doctrine is problematic for

several reasons. First, as the Hegars acknowledged in their motion for rehearing,

“This is not an accommodation doctrine case.” Unlike typical accommodation

doctrine cases, the Hegars are not contending that Key Operating’s efforts to

develop the mineral estate under the Hegar tract are interfering with the Hegars’

existing use of the surface. See Getty Oil, 470 S.W.2d at 622 (mineral lessee’s

pumping units interfered with surface owner’s operation of automatic irrigation

sprinkler system); Valence Operating Co. v. Tex. Genco, LP, 255 S.W.3d 210,

215–16 (Tex. App.—Waco 2008, no pet.) (location of proposed gas well interfered

with surface owner’s existing ash-disposal landfill operations); Merriman v. XTO

Energy, Inc., No. 10–09–00276–CV, 2011 WL 1901987, at *4 (Tex. App.—Waco

May 11, 2011, pet. granted) (mem. op.) (location of well interfered with surface

owner’s existing cattle operations).   In fact, the Hegars do not dispute Key

Operating’s right to use the roadway to develop the minerals under the Hegar tract,

nor do they have an issue with the manner in which Key Operating is using the




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roadway. Their only dispute is whether Key Operating has the right to use the

roadway in order to develop the mineral estate of an adjacent tract.

      Second, by resolving this matter under the accommodation doctrine, the

majority has effectively determined that the Hegars—who unequivocally dispute

the applicability of the accommodation doctrine to their case and did not seek to

enjoin Key Operating’s use of the surface on this basis—nevertheless, somehow

managed to prove the applicability of said doctrine.

      Third, although the applicability of the accommodation or alternative means

doctrine depends upon the language utilized by the deed, lease, or other instrument

severing the mineral and surface estates, the majority opinion presumes that the

doctrine applies and never identifies—much less analyzes—the severing

instrument. See Landreth v. Melendez, 948 S.W.2d 76, 81 (Tex. App.—Amarillo

1997, no writ).    In Landreth, the Amarillo Court of Appeals held that the

accommodation doctrine was inapplicable because the conveying instrument

expressly gave the mineral interest owner the right to use as much of the surface as

was required in employing “all usual, necessary and convenient means” to further

explore for, produce and remove the minerals. 948 S.W.2d at 81. Thus, the

mineral interest owners were “under no obligation to accommodate the surface

owners in the existing use made of the surface so long as the mineral owners use

all usual, necessary and convenient means in conducting their operations.” Id.


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                   Surface Usage Rights and Time of Severance

      The majority contends that Key Operating is attempting to “contractually

expand their surface rights against the Hegars in a lease and a pooling agreement

entered after the mineral and surface estates were severed”—without ever

establishing what Key Operating’s surface rights actually are in this case.

      The majority acknowledges that a mineral interest owner’s surface usage

rights are generally established at the time of severance, citing to 1 Ernest E. Smith

& Jacqueline Lang Weaver, Texas Oil and Gas Law, section 2.1[B][1] at 2.17–

18.2–18.     Nevertheless, the majority never clearly articulates when Key

Operating’s mineral interest was actually severed from the surface or identifies the

severing instrument—a document which would undoubtedly impact the analysis in

this case.   For example, if the severing instrument gave Key Operating’s

predecessor the right to pool or otherwise use the surface of the Rosenbaum-Curbo

tract (a portion of which was later sold to the Hegars) for the benefit of oil and gas

development on adjacent tracts, there would be no question that Key Operating

was entitled to use the surface to develop the pooled unit’s mineral interest.

                     Factual Misstatements and/or Omissions

      Aside from these analytical issues, the majority opinion also makes two

factual misstatements or omissions which bear mentioning.




                                          5
      First, the majority acknowledges that because an oil and gas lease grants a

fee simple determinable interest to the lessee/grantee, the execution of a mineral

lease severs the mineral estate from the surface estate. Despite the existence of

several oil and gas leases in the Hegars’ chain of title, some of which are expressly

listed in the Warranty Deed from Charles Curbo, including the 1994 lease in which

Curbo leased his entire mineral interest to Boatright, the majority nevertheless

declares: “The Hegars’ one-fourth interest in the mineral estate does not appear to

have ever been severed from the surface.”

      Second, Will Hegar testified, “We’re trying to raise a family and we can’t do

it with a highway going through our property.” Collectively, the Hegars and Key

Operating hold an undivided interest in a little over one-third of the mineral estate.

The remaining two-thirds is held by various other co-tenants—each of whom also

has the unilateral right to use as much of the surface estate as is reasonably

necessary to produce and remove the minerals from the property. Until those

minerals are depleted or the Hegars acquire 100% of the mineral estate associated

with their 85-acre parcel, it is unlikely that the Hegars will ever have the peace and

solitude they seek. The roadway in question is the only means of egress and

ingress that the Key Operating and the other mineral co-tenants have with respect

to the property. While the proximity of the Hegar family home to the busy

roadway is unfortunate, it was not unavoidable. When the Hegars purchased the


                                          6
85-acre property from Curbo in 2002, they chose to build their home a mere 200 to

300 yards away from the roadway that Key Operating had been using since 1994

and had spent over $150,000 to build and maintain.

      For these reasons, I respectfully dissent.




                                              Jim Sharp
                                              Justice

Panel consists of Chief Justice Radack and Justices Sharp and Brown.

Justice Sharp, dissenting.




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