for unit development is written in terms of “any person having the right to drill into and produce from such common source of supply” 10 and “any person owning an interest in the minerals in lands embraced within such common source of supply, or the right to drill a well for oil or gas on the lands embraced within such common source of supply.” 11 Furthermore, with respect to force pooling on a unit basis, an unleased mineral owner is regarded as a royalty owner to the extent of a 1/8 interest and a working interest owner as to the remaining interest. 12 Finally, the terms “working interest owner” and “nonparticipating working interest” appear in a couple of places; 13 and, the word “leasehold” only appears in the wording for the statutory Pugh clause 14 and as relates to an Operator’s lien. 15 Consequently, in Oklahoma, the oil and gas regulatory framework is tailored for unit development (rather than development on an individual lease basis) often encompassing dozens of oil and gas leases spread across multiple divided tracts and combined into a single drilling and spacing unit. Detailing ownership on an individual lease-by-lease level would significantly increase the time and cost of preparing a title opinion. In my experience, clients usually do not request this level of detail, and the additional expense might not justify the benefits. Therefore, it is crucial to discuss this option with clients beforehand, as opting for a lease-by-lease ownership detail will undoubtedly raise the costs.
Surface information may be included in this Opinion for convenience purposes, only. If a definitive Opinion on the Surface is needed, contact the Examiner for a supplement to this Opinion. 17
The Yale article explains that Texas practitioners are hesitant to include surface ownership in an oil and gas title opinion because that can expose lawyers to significant legal, financial, and professional risks. By offering an opinion on surface rights, attorneys inadvertently position themselves or their malpractice insurers as de facto title insurers for the surface estate. While oil and gas lawyers might anticipate legal action for mistakes concerning the oil and gas estate, they often do not consider the potential lawsuits that could arise if a surface- related real estate deal goes awry due to errors in their title opinion. For these reasons, the Yale article explains that many Texas practitioners believe it is prudent to exclude surface ownership details to mitigate these risks. 18 “Accommodation Doctrine”: I am not convinced, however, that the primary motivation for omitting surface ownership from oil and gas title opinions in Texas is solely about mitigating legal, financial, and professional risks. Instead, I believe the real driving force is the unique relationship between surface owners and oil and gas Operators, shaped significantly by the Accommodation Doctrine. In Texas, this doctrine often negates the need for Operators to negotiate directly with surface owners for damages or surface access, reducing the necessity for detailed surface ownership information in title opinions. If the relationship between the surface and mineral estate is
Surface Ownership: Accommodation
3.
Doctrine vs. Surface Damages Act
In my experience, Oklahoma title examiners will typically include surface ownership when drafting an oil and gas title opinion—at least for Drilling Title Opinions. However, as noted in the Yale article, this has not always been the case for Texas practitioners. 16 In fact the Texas Form opinion presented in the Yale piece includes a surface ownership disclaimer:
10 52 Okla. Stat. § 87.1 11 52 Okla. Stat. § 87.1 (a) 12 52 Okla. Stat. § 87.1 (e) 13 52 Okla. Stat. § 87.1 (g), (h)(1)(2)
14 “In case of a spacing unit of one hundred sixty (160) acres or more, no oil and/or gas leasehold interest outside the spacing unit involved may be held by production from the spacing unit more than ninety (90) days beyond expiration of the primary term of the lease.” 52 O.S. § 87.1 (e). 15 52 Okla. Stat. § 87.1 (b).
This Opinion expressly excludes from coverage the ownership of the surface estate in the Subject Lands.
16 Yale at p. 3. 17 Yale at p. 49. 18 Yale at p. 3.
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G rowth T hrough E ducat i on - J uly / A ugus t / S ept ember 2025
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