In the realm of disputes between surface and mineral owners, the accommodation doctrine is misunderstood almost as often as it is asserted. A common misconception is that an accommodation-doctrine claim simply requires a determination of which came first—the surface owner’s use or the mineral lessee’s operations. In fact, the accommodation doctrine generally requires proving several elements. These elements were articulated in the June 2013 Texas Supreme Court opinion in Merriman v. XTO, in which the court substantively opined on the accommodation doctrine for the first time in more than two decades. InMerriman, the court clarified the elements that must be proven by a surface owner seeking to enforce the doctrine against a mineral lessee.
Specifically, the court held that to obtain relief on a claim that the mineral lessee has failed to accommodate an existing use of the surface, the surface owner has the burden to prove that (1) the lessee’s use completely precludes or substantially impairs the existing use; and (2) there is no reasonable alternative method available to the surface owner by which the existing use can be continued. If the surface owner carries that burden, he or she must further prove that (3) given the particular circumstances, there are alternative reasonable, customary, and industry-accepted methods available to the lessee that will allow recovery of the minerals and also allow the surface owner to continue the existing use.