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Access to Subjacent Minerals

Joseph J. Zaluski, Karen J. Greenwell, Severed Minerals, Split Estates, Rights of Access, and Surface Use in Mineral Extraction Operations

This paper deals primarily with some of the access and conflict issues which arise between severed mineral estates. These conflicts are similar to, and their resolutions often draw upon, the case law and legislation relating to conflicts between surface owners and the owners of severed minerals.

There are two distinct types of conflicts which arise between different mineral estates. The legal analyses of those two types draw on different, but related, bodies of common law. One type of conflict arises from the need to “get to” subjacent minerals. This may involve drilling or mining through or otherwise disturbing one mineral estate in gaining access to a subjacent mineral deposit. The most common example of this type of conflict is the drilling of wells through a coal seam in order to reach the underlying oil or gas.

The second aspect of these conflicts relates to the logistics of “getting out” the subjacent mineral. It involves issues regarding the subsidence or other effects of mineral removal. This type of conflict is exemplified by the effect on upper coal seams or on oil and gas wells when an underlying coal seam is mined. Such subjacent mining could cause the subsidence and destruction of upper coal seams as well as the shearing or dislocation of wells located over or through the mined coal.

An examination of the law relating to these conflicts b