Supreme Court Hears Oral Arguments Involving Accommodation Doctrine

The Texas Supreme Court will hear oral arguments on February 6, 2013 in the appeals case of Homer Merriman v. XTO Energy Inc. The case involves the accommodation doctrine and whether the doctrine requires that a surface owner has to prove that when a drilling company alters the use of the owner’s land, the owner is required to prove no other uses for the land exist.

The petitioner, Mr. Merriman, raises cattle on land he bought and that was already leased to XTO Energy for drilling. When XTO drilled near Merriman’s barn, he file a motion for a permanent injunction, claiming that the rig interferred with his annual cattle sorting, as well as grazing during the remainder of the year.

The trial court granted a summary judgment to XTO and the appeals court upheld the ruling, offering that Merriman had not proved that alternatives to how he managed his cattle were not available.

In Merriman’s petition to the Supreme Court, he argues that the appeals court erred in its interpretation of the accommodation doctrine in three areas. First, the accommodation doctrine should not require Merriman to prove that reasonable alternatives for his cattle operations exist; secondly, even if alternatives is an issue, Merriman should not be forced to use those alternatives, especially if they are not on land he owns; and lastly, a summary judgment should not have been granted because the testimony offered by Merriman was not conclusory — fact issues still existed (which, of course, negates the qualification for a summary judgment).

The Supreme Court’s hearing of this case could help further define and clarify the rights of both parties under the accommodation doctrine, a legal principle that a mineral owner should take steps to recover minerals without hindering the normal use and operation of the land by the surface owner.

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