Surface Owner Retains Right To Grant Permission For Access To Minerals.

The plaintiff owns mineral rights on 3,250 acres, the surface of which is owned by a third party.  The defendant is the lessee on minerals under property adjacent to the 3,250-acre tract.  Because the defendant's lease bars the defendant from accessing the minerals without consent, the defendant accesses the minerals from off-site drilling locations via horizontal drilling.  The defendant entered into an agreement with the surface owner of the 3,250 acres to drill wells on the surface of the tract to produce oil from the minerals it had an interest in under the adjacent tract.  The plaintiff sued to bar the drilling through the subsurface of the 3,250 acres to reach their mineral interest by claiming that the defendant was trespassing and had interfered with the plaintiff's business relations.  The defendant claimed that no trespass occurred because it had received the surface owner's permission to horizontal drill.  The trial court agreed with the defendant.  On appeal, the court affirmed on the basis that the surface owner controls the earth beneath the surface estate.  The court noted that the mineral owner is entitled to a fair chance to recover the oil and gas in or under the surface estate, but does not control the "mass that undergirds the surface of the conveyed land" absent an agreement to the contrary.  Lightning Oil Co. v. Anadarko E&P Onshore LLC, No. 04-14-00903-CV, 2015 Tex. App. LEXIS 8673 (Tex. Ct. App. Aug. 19, 2015).