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Takings Affecting Mineral Estate

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Takings Affecting Mineral Estate

Postby crh637 on Wed Nov 19, 2008 3:04 pm

I've been conducting research for a possible taking of a surface easement and have run into questions regarding the effect on the mineral estate.

It seems like there is a dearth of useful commentary on this subject that surely comes up on a regular basis. I imagine that every right of way taking in places like Texas and Louisiana encounters issues with the mineral lessee's right to access the surface. The issue would be that the utility would want to ensure that their use of the surface is dominant over mineral lessee's use so that the mineral lessee can't decide one day to drill a hole through your utility cables or viaduct (or whatever it is), arguing that it is the only reasonable way to get at the minerals it owns.

Any of you have some experience/advice on how these issues are generally resolved? Does the condemnor generally take the mineral rights as well, or simply seek a subordination agreement, or what?
crh637
 
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Postby Collin44 on Wed Jan 28, 2009 9:55 am

When acquiring ROW where the Grantor would like to retain his interest in mineral rights, we simply use a SWD with Surface Waiver. The surface waiver prevents the Grantor from compromising the improvements made by the Grantee and even restricts exploration to depths below 500' so that there is no damage to natural grade level of the property.

I am not familiar how this would play out in condemnation because we use that only as a last resort, however, if there is an active lease they would most definitely be included as a party in the condemnation.
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