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A New Appraisal of the Rights of Lessees Under Oil and Gas Leases to Use and Occupy the Surface

Morris G. Gray, Proceedings of 20th Annual Rocky Mountain Mineral Law Institute (1974)

Despite a long history of experience and a fairly extensive body of judicial precedent, the questions of whether, to what extent, and under what circumstances the oil and gas lessee may occupy and use the surface of the leased premises to find, produce, and remove the oil and gas therefrom, and dispose of waste products, now seem to arise more often than before, and frequently the answers appear more elusive than ever. Perhaps this is indicative of the times. As growing numbers of people compete ever more vigorously to use the same surface space in an ever-expanding variety of ways, conflicts between lessors and lessees, and those claiming under them, with respect to the surface tend to become sharper, more numerous and novel and difficult to resolve. Operating practices assumed to be within the lessee's exclusive prerogative are being challenged as non-mineral surface usages intensify and challenge the presence of the oil and gas lessee and the priority of his rights.1


For this reason, although various aspects of the subject have received scholarly attention at this2 and other3 institutes, and in law articles and other treatises,4 your Program [229] Committee concluded that the rights of surface user under oil and gas leases should be reexamined at this Institute. An objective of this paper will be to reassess the relationship of the oil and gas less