By Brad Caponigro · Founder, Pointer Petroleum LLC · Reservoir engineer
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Severed mineral ownership in Texas is decided by the deed record, not by surface possession. Imagine an heir in West Texas who discovers her grandfather reserved minerals on a 320-acre tract back in 1956 — the surface having been sold and resold and grazed and fenced and farmed by three different families since. The current surface owner has lived on the land for 28 years and assumes that long history of use must give him some claim to the minerals beneath. It does not. Texas adverse possession does not work that way for severed minerals, and the heir's interest is intact even though she has never set foot on the property. Severed minerals are their own world, and the rules for losing them are narrow.
Under Texas law, once the mineral estate is severed from the surface estate by deed or reservation, adverse possession of the surface does not reach the minerals. The Supreme Court established this in Grissom v. Anderson, 125 Tex. 26, 79 S.W.2d 619 (1935): surface use — grazing, fencing, farming — is not adverse to a severed mineral owner because it is consistent with the surface owner's own rights and gives no notice of a claim against the minerals.
This is the most important rule for mineral owners to understand. A surface owner who has lived on a tract for decades does not acquire the minerals by long-term surface use, no matter how "open and notorious" that use appears. The minerals can only be adversely possessed by activity directed at the mineral estate itself — primarily by drilling and producing a well.
To adversely possess a severed mineral estate in Texas, the claimant must actually extract and produce minerals under a claim of ownership for the full limitations period. This means drilling and operating a producing well — not merely leasing the minerals or drilling a dry hole.
The leading case is Natural Gas Pipeline Co. of America v. Pool, 124 S.W.3d 188 (Tex. 2003), where the Texas Supreme Court held that a lessee whose lease had expired could adversely possess the minerals by continuing to produce under a claim of right. The production itself was the act of adverse possession.
The production must be continuous for the applicable limitations period (typically 10 years under Texas Civil Practice and Remedies Code Chapter 16), visible enough to give notice to the record owner, and under a claim of ownership rather than as a lessee or licensee.
Texas mineral interests are often held by cotenants — multiple owners who each hold an undivided fractional interest. When one cotenant leases the minerals and a well is drilled, what happens to the non-consenting cotenants?
The answer under Texas law is that a producing cotenant is NOT adversely possessing against other cotenants. Cotenant production is presumed to be for the benefit of all cotenants. The non-producing cotenant is entitled to their proportionate share of net production proceeds — calculated as their fractional interest times the gross revenue, less their proportionate share of reasonable and necessary production costs.
This rule comes from Cox v. Davison, 397 S.W.2d 200 (Tex. 1965) and subsequent cases. The producing cotenant has no duty to account until demand is made, but once demand is made, the non-producing cotenant can recover their share of historical proceeds subject to the four-year statute of limitations on contract claims.
Because cotenant production is not adverse, a non-consenting cotenant's interest cannot be lost to adverse possession by other cotenants no matter how long production continues.
Texas has several limitations statutes that can apply to adverse possession claims, each with different requirements:
Three-year statute (CPRC 16.024): Applies to adverse possession under title or color of title. Requires a recorded deed or equivalent that appears to convey the property. Rarely applicable to mineral estates because most adverse claimants lack a deed.
Five-year statute (CPRC 16.025): Requires cultivation, use, or enjoyment of the property, payment of taxes, and a recorded deed. The deed requirement and tax payment requirement make this difficult to satisfy for minerals.
Ten-year statute (CPRC 16.026): The most commonly invoked statute. Requires open, notorious, and hostile possession for ten years. Tax payment is not required. Production of oil or gas under a claim of right can satisfy this statute.
25-year statutes (CPRC 16.027 and 16.028): Apply when the claimant has a recorded deed. The 25-year statutes can sometimes be invoked to quiet title against lost heirs or stale claims.
For Texas mineral owners, the practical takeaways are:
Surface use by another party does not threaten severed mineral ownership, no matter how long it continues. If you own minerals underneath a ranch that has been occupied by the surface owner for generations, your minerals are safe from adverse possession absent actual mineral production under a hostile claim.
If there is a producing well on your tract and you have not been receiving royalties, find out who is producing and under what authority. If the operator is producing under a lease, the lease is either still in effect (and you should be receiving your share as the lessor) or has expired and the operator may be adversely possessing. Demand records and royalty payment immediately.
Cotenant disputes are common when a minority interest has been overlooked. If an operator is paying other cotenants but not you, write a demand letter identifying your interest and demanding payment. The operator should either start paying you or place your share in suspense pending resolution.
If you are uncertain about your position or are considering selling an interest that may have adverse-possession issues, Pointer Minerals can evaluate the chain of title and provide an offer. We regularly handle title curative work for interests with historical gaps and will not walk away from a deal because a prior owner died without probate.
No — not through surface use alone. Under the rule in Grissom v. Anderson, surface possession (grazing, fencing, cultivation) does not adversely possess severed minerals because it does not give notice of a claim against the mineral estate. The only way to adversely possess severed minerals in Texas is by actually producing oil or gas under a claim of ownership for the full limitations period.
No. Under Texas law, cotenant production is presumed to be for the benefit of all cotenants and is not adverse. The producing cotenant must account to the non-producing cotenants for their proportionate share of net proceeds once demand is made. Your interest cannot be lost to adverse possession through cotenant production, though you should make demand promptly because past royalties owed to you may be subject to the four-year statute of limitations.
The most commonly applicable period is ten years under CPRC 16.026, which requires open, notorious, and hostile production under a claim of right. Shorter periods (three or five years) apply only if the adverse claimant has a recorded deed and, in some cases, has paid taxes on the interest. These shorter statutes rarely apply to mineral adverse possession.
Primary sources used in writing this article. These are not legal or tax advice — they are the public statutes, regulations, and authoritative materials the article draws from. Consult a qualified attorney or CPA before acting on any of them.
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