Plaintiffs Kenneth Lyle and Linda Morrison have appealed the dismissal of their suit against Midway Solar to the El Paso Court of Appeals, No. 08-19-00216-CV. Lyle and Morrison own the minerals under 315 acres in Pecos County. Midway Solar has constructed a solar farm on 215 of those acres.
Typically, a solar developer will obtain surface-use waivers from mineral owners before building a facility. Midway did not do that. Instead, it set aside portions of the 315 acres, on the north and south ends of the property, to allow for development of the minerals by directional drilling.
Lyle and Morrison contend their minerals are not susceptible to development by directional or horizontal drilling, because of the subsurface geology. They say 70% of their tract cannot be developed for minerals. Their minerals are not now leased and there are no plans to drill wells. There has been production from wells in the vicinity.
Midway Solar says that, because there are no present plans to develop the minerals, the case is not “ripe” for decision. Resolution of the case depends on hypothetical facts or events that have not yet come to pass. Midway also says the accommodation doctrine applies, and that the mineral owners must accommodate its existing use. Lyle and Morrison argue that the only reason there are no plans for mineral development is that the solar farm prevents any such development, and that Midway failed to show the mineral owners had adequate ways to develop their minerals under the solar farm. They also argue that the accommodation doctrine does not apply because of an unusual provision in the deed by which their mineral interests were severed from the surface:
Grantors further reserve unto themselves, their heirs and assigns, the right to such use of the surface estate in the lands above described as may be usual, necessary or convenient in the use and enjoyment of the oil, gas and general mineral estate hereinabove reserved. And neither Grantors herein nor their heirs, assigns and successors in title, nor any person holding or claiming under them shall ever be liable to Grantees herein, their heirs, assigns and successors in title for any damages or injury to the surface estate by reason of such use or for any damage or injury to the surface estate by reason of such a use or for any damage or injury resulting from or claimed to have resulted from the exercise of the rights and privileges herein above reserved in connection with the reservation with oil, gas and general mineral estate.
Lyle and Morrison’s brief to the Court of Appeals was filed this week.