Texas Supreme Court Applies Accommodation Doctrine to Groundwater Leases

The Texas Supreme Court adopted the “accommodation doctrine” in a groundwater lease case. In doing so, the Court held that the person owning the right to produce groundwater must exercise its rights with due regard for the surface owner’s rights.

The Court’s decision in Coyote Lake Ranch v. City of Lubbock appears consistent with a national trend to have “accommodation” generally as part of servitudes. As an example of this trend, the Restatement (Third) of Property (Servitudes) § 4.9 contains a comment indicating that, in the absence of detailed arrangements, it is assumed that the parties to a servitude intend to exercise their rights in a spirit of mutual accommodation.  Some legal scholars have indicated that a notion of accommodation is important, because servitudes can last for many years as technology and circumstances continue to change.

Servitudes include many kinds of circumstances where the use of one’s property can be subject to the needs of owners of other property. For example, surface owners must allow access for mineral owners to produce minerals. Other examples include easements and restrictive covenants.

The property that benefits from the servitude, such as the mineral owner or the home that may be reached via the easement, is the dominant estate. The property that must allow use is the servient estate. While the “mutual accommodation” language of the Restatement may be too broad for all of current Texas law, the Court in this case addressed what a servient estate owner generally must show when claiming that the dominant estate failed to accommodate an existing use of the servient estate.

Burden of Proving Failure to Accommodate Is on the Servient Estate

In Texas, for a servient estate to assert failure to accommodate, these circumstances are necessary:

  1. The dominant estate’s action completely precluded or substantially impaired the existing servient estate use.
  2. The servient estate has no reasonable alternative that would allow it to continue the existing use.
  3. Under the circumstances, reasonable, customary, and industry accepted alternatives are available that will allow the dominant estate to receive its benefit.

The goal is to balance the rights of both estates while recognizing that one estate is, in the end, dominant.

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