The separation of estates can and does result in situations in which the interests of the possessors are in conflict. Volume 1 of this paper explores the substantial body of common law pertaining to conflicts between mineral production and surface use. Traditionally, this law has unabashedly recognized the dominance of mineral interests over the surface estate. While some jurisdictions have adopted ameliorating doctrines through common law or by statute in recent decades, this unequal relationship still holds fast. In many respects and many situations, the dominance of mineral interests is justified by the reasonable construction of leases and other conveyances. However, volume 1 of this paper argues that some circumstances, the ingrained tendency of the courts to construe all ambiguity against surface holder leads to unfair results and outcomes that are no longer congruent with policy. This is particularly true in respect to the use of high-impact (to the surface and the environment) extraction methods such as water flooding. Volume 2 of this paper examines the common law rules for adjudicating conflicts in the development of multiple minerals as well as the non-judicial, administrative systems in place to resolve development conflicts occurring on government lands. Two contemporary mineral development conflicts are examined, oil-potash in the Permian Basin of New Mexico and coal bed methane development in Wyoming's Powder River coal basin. On this basis, some general conclusions are made as to the proper role of courts and legislatures in involving themselves in what are essentially private economic trade-offs.
University of New Mexico School of Law
Marks, Jason. "When Estates Collide: A Student's Exploration of the Law of Conflicts in Mineral Development." (2004). https://digitalrepository.unm.edu/law_studentscholarship/39