A fundamental principle of United States property law is that the right to extract minerals can be severed from the bundle of rights that constitutes property ownership. Where the mineral interest has been severed from the surface interest, the courts have recognized an implied easement burdening the surface interest and benefiting the mineral interest to use the surface in such manners and locations as may be reasonably necessary to obtain minerals from the property. Common law rules must be reexamined constantly to determine whether the rationales that led to their recognition still apply, however, for the customs and expectations are the foundation of the common law. Population growth, urbanization, suburban sprawl, and intensive agriculture, on the one hand, and technologies that have identified more and more “minerals” and the means to extract them efficiently, on the other, have made conflicts between minerals development and surface uses everyday fare. As a result, the implied easement for surface use has come under the increasingly close scrutiny of the courts and the legislatures.
Although many excellent papers over the years have addressed problems of the implied easement for surface use both in the Rocky Mountain Mineral Law Foundation papers and in other publications, the environmental awareness of the 1990's gives us good reason to reexamine the rationale, status, and future prospects for the implied easement for surface use.
Proceedings of the Rocky Mountain Mineral Law Annual Institute
John Lowe, "The Easement of the Mineral Estate for Surface Use: An Analysis of Its Rationale, Status, and Prospects," 39 Proceedings of the Rocky Mountain Mineral Law Annual Institute (1993)