Insights · Texas Energy and Land
Texas Surface Use Agreements That Protect Working Ranches
By Worth Thornton ·
A surface use agreement should explain how an energy or infrastructure project will coexist with the daily operation of a ranch. Compensation matters, but so do the location of a road, the handling of a gate, the depth of a buried line, and access to a water trough after construction. A general promise to avoid unreasonable interference may not resolve those details when crews arrive.
Begin with the rights already in place. An oil and gas lessee, pipeline easement holder, solar developer, and contractor do not necessarily have the same authority. Review the deeds, mineral lease, easements, and proposed agreement before deciding which activities require consent and what additional protections can be negotiated.
Do Not Confuse Ownership With a Complete Veto
Texas mineral ownership can carry rights to use the surface as reasonably necessary for mineral development, subject to the governing instruments and applicable law. The accommodation doctrine can limit the exercise of those rights in particular circumstances, but it is not a general right to block a project or require the operator to accept every preferred location.
In Merriman v. XTO Energy, the Supreme Court of Texas explained the surface owner's burden concerning substantial interference with an existing use, reasonable alternatives for continuing that use, and reasonable customary alternatives available to the mineral operator. [1] That fact intensive framework is a reason to investigate and negotiate carefully, not to assume that inconvenience establishes a claim. An agreement can address practical issues more specifically than a later dispute over general legal standards.
Put the Ranch Operation on the Map
Use an exhibit showing approved roads, facilities, temporary workspaces, fences, gates, water lines, troughs, pens, residences, and sensitive areas. Distinguish permanent rights from temporary construction access. Identify no work areas and define a process for approving changes.
Walk the proposed routes with someone who understands the ranch. A straight line on an aerial image can cut a pasture in half, cross a drainage channel, or interfere with gathering cattle. Record seasonal uses and access needs. The contract should address the actual operation rather than describing every unoccupied acre as interchangeable space.
Define Road Construction and Maintenance
Address the location, width, surface material, drainage, culverts, load capacity, and permitted users of each road. Allocate dust control, maintenance, and repairs caused by heavy equipment. Consider notice for unusual traffic, wet weather restrictions where workable, and emergency exceptions that are narrow enough to administer.
State whether the owner may use project roads and whether contractors may travel elsewhere. Distinguish routine wear from project damage. Where a road crosses an existing ranch road or cattle lane, specify how access will remain available during construction. These are negotiating points; their inclusion and enforceability depend on the agreement and existing rights.
Specify Pipeline and Cable Corridors
An easement should identify the authorized line or use, corridor, temporary workspace, and any limits on additional facilities. Review rights to install extra lines, aboveground equipment, valves, power facilities, and access roads. A broad future use clause can matter more than the initial drawing.
Use qualified technical input for burial depth, crossings, separation, erosion control, and work around existing utilities. Require appropriate location records after installation and address how the owner will obtain them. Define repair and replacement access without assuming that routine maintenance and a new construction project should have identical workspace rights.
Make Water Use an Express Subject
Identify whether the project may use ranch wells, tanks, pipelines, or other water facilities at all. If use is permitted, define its source, purpose, quantity limits, measurement, price, and priority relative to ranch needs. Address who pays for power, repairs, testing, and damage caused by project use.
Water ownership, existing contracts, groundwater district requirements, and other legal restrictions may require separate review. A surface use clause should not promise a supply or regulatory permission the owner cannot provide. Consider contingency arrangements if project work interrupts water needed for livestock.
Give Crews Clear Gate and Livestock Rules
Specify approved entry points, lock arrangements, cattle guards, gate closure, temporary fencing, and fence repair. Identify a contact who can respond when a gate is damaged or cattle escape. If construction temporarily divides a pasture, address crossings and safe movement before the work begins.
Consider vehicle speeds, livestock feeding areas, restrictions on pets or hunting by crews, and notice before disruptive work near pens. Allocate responsibility for contractor conduct and documented livestock damage. A rule is more useful when the agreement identifies who must communicate it to subcontractors and who must correct a violation.
Describe Restoration in Observable Terms
Document baseline conditions with dated photographs and, when appropriate, soil or vegetation information. Address segregation and replacement of topsoil, compaction, rock removal, drainage, erosion, seed selection, weed control, and repair of water and fence infrastructure. Use site appropriate technical standards rather than a generic promise to leave the property satisfactory.
Set completion dates that account for growing conditions without allowing indefinite delay. Provide an inspection process and a way to identify and correct incomplete work. Distinguish payment for the initial footprint from continuing maintenance, later damage, and final restoration. A one time surface payment should not silently release obligations the owner expects to continue.
Match Responsibility With Insurance and Remedies
Identify the entity responsible for work and the extent of its responsibility for contractors. Review insurance, indemnity, notice, cure periods, emergency response, and dispute provisions together. Whether an indemnity or insurance arrangement is effective can depend on Texas law and the wording of the contract; broad language is not necessarily effective language.
An agreement with one party does not automatically bind every holder of existing rights. Confirm signatures, authority, assignment obligations, and any recording needs. Ask counsel before blocking access, disabling equipment, or taking another self help measure that could create a separate dispute.
Review the Agreement Against a Day on the Ranch
Before signing, test the draft against ordinary tasks: hauling feed, checking water, moving cattle, fixing fence, and reaching the back pasture after a storm. If the agreement does not explain how those activities can continue, identify the missing provisions while routes and work methods can still be adjusted.
Learn more about Worth Thornton's oil, gas, and mineral law practice or contact Worth Thornton to discuss a proposed surface use agreement. For solar, wind, or battery projects, the renewable energy practice page provides a related starting point.
This article provides general information about Texas law and contract planning. It is not legal advice for a particular property or dispute. Reading it or contacting Worth Thornton does not create an attorney client relationship.