Access to Mineral Interests by Right, Permit, Condemnation or Purchase

The number of occasions this Institute has addressed access to mineral interests over the past two decades evidences widespread concern over access problems;1 the fact that those papers have uniformly stated hornbook principles on severed mineral estates, ways of necessity, implied easements, easements by prescription, and even the inchoate right of condemnation shows little progress toward practical solutions to the problems.2

Common law rules3 have generally proven most adequate to provide access to surface tracts that become landlocked through a subdivision of unit title by a common grantor.4 In such cases, access is usually within the [1076] contemplation of the draftsman, and is frequently addressed in express language of grant or reservation. When it is not, one can reasonably infer from the subdivision of surface title a right of access along a previously existing access route or, if there is none, then at a location and of such limited character as is necessary to permit reasonable use of the landlocked tract. In these situations, the servient owner has rarely resisted a claim of access and is not materially injured or inconvenienced by the access grant because (i) the implied access right is limited in place and areal extent and can be reasonably anticipated at the time severance by grant or reservation occurs, and (ii) the servient party or his predecessor i