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Property and Oil and Gas Don't Mix: the Mangling of Common Law Property Concepts

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Property and Oil and Gas Don't Mix: the Mangling of Common Law Property Concepts Property and Oil and Gas Don't Mix: The Mangling of Common Law Property Concepts Bruce M. Kramer* I. Indroduction............................................................. 540 II. The Problem with Estates 541 A. Some Basic Definitional and Conceptual Difficulties 541 B. Defining the Leasehold Estate-Why Adopt a Rule of Automatic Termination? 543 III. The Rule Against Perpetuities 550 A. The Defeasible Term Interest. .......................................... 551 B. Top Leases. .......................................................... 557 C. Conclusion........................................................... 558 IV. The Mysterious One-Eighth.. .............. .. ... .. ........ .. .. .. .......... 559 V. Real Covenants-Herein of Assignments and Subleases. ...................... 562 VI. The Differences Between a Canon of Construction and a Rule of Law. ......... 564 VII. Some Closing Thoughts 568 I. INTRODUGrION One of the reasons I chose to teach Oil and Gas Law a number of years ago was that I perceived it to be an advanced property course.! While that perception is changing,2 I still believe that the heart, if not the brains, behind any basic course in oil and gas law will still lie in thousand-year-old common law property principles, which must be mastered by the student if she is to understand how modern oil and gas law and transactions are structured. The fact that property principles, and to a great extent, real prop­ erty principles, underlie oil and gas law has created many positive ex­ ternalities for the industry. Some of the benefits were noted by the Texas Supreme Court which, when interpreting an instrument to cre­ ate an overriding royalty interest, rather than a mere contractual obli­ gation to pay a sum certain, stated: "[overriding royalties] are interests in land; and hence not subject to parol sale, but have the protection of the statute of frauds, the statutes regulating conveyances and mortgages of real estate, and the statutes requiring the record of instruments affecting title to or liens on land."3 * Maddox Professor. Texas Tech.; A.B., 1968; J.D., 1972, V.C.L.A.; LL.M.• 1975. Illinois. 1. I must confess that one of my dumbest decisions in law school was not taking the Oil and Gas Law course taught by Richard Maxwell. What I did not learn in his course, I have tried to pick up over the years through a careful reading of his many thought-provoking articles. In addition, Dick has shown an amazing patience in responding to a continuous series of questions about oil and gas that I have bombarded him with. I nonetheless was able to figure out that Oil and Gas Law was largely taught by property scholars, leading me to believe that my interest in property law would be rewarded by teaching the course. 2. You can compare the earlier editions of HOWARD WILLIAMS, ET AL., OIL AND GAS LAW (1st through 3rd edit.) and WILLIAM HUIE, ET AL., CASES AND MATERIALS ON OIL AND GAS LAW (1960) with their current versions to see a de-emphasis on traditional property law concepts. See also EUGENE KUNTZ, ET AL., CASES AND MATERIALS ON OIL AND GAS LAW (2d ed. 1992) for a more "modern" view of oil and gas law. 3. Tennant v. Dunn, 110 S.W.2d 53, 57 (Tex. Comm'n App. 1937). See also A.W. Walker, Property Interests Created by Lease, 7 TEX. L. REV. 1,32-49 (1927). 540 HeinOnline -- 33 Washburn L.J. 540 (1993-1994) The Mangling of Common Law Property Concepts 541 It is property law which provides the skeletal structure to oil and gas jurisprudence. There is an increasing amount of flesh and bones that are being added to the skeleton, but without the core skeleton, oil and gas law as we know it today and as we will continue to know it in the next century would n'ot exist. While I suggest that some courts have mangled common law property principles, one should not infer that the mangling is due to a judicial indifference to common law property concepts. In fact, the strained exercise of several courts to justify their decisions in the face of several hundred years of property jurisprudence lends credence to the belief that courts will not easily shed the "baggage" which has attached itself to oil and gas law, merely because the nature of the business has changed. Flexibility is the hall­ mark of the common law and, given the opportunity for the states to experiment, it is not surprising that substantial variations from tradi­ tional property law principles arise on occasion. Nonetheless, courts do not feel comfortable about "divorcing" oil and gas law from prop­ erty law. Whether straining to avoid the application of the Rule Against Perpetuities to a transaction that Lord Mansfield or Professor Dukeminier would find outside the furthest extension of the Rule or struggling to "pigeon-hole" the oil and gas lease as one of only two possible common law estates, the courts give great deference to centu­ ries-old property tenets. It is my hope that future courts and future law students will have that same respect for the property skeleton which gives oil and gas jurisprudence its intellectual and practical vibrancy. II. THE PROBLEM WITH ESTATES A. Some Basic Definitional and Conceptual Difficulties The Restatement of Property defines an estate as "an interest in land which (a) is or may become possessory and (b) is ownership mea­ sured in terms of duration."4 This rather basic definition clearly re­ stricts the estate concept to corporeal or possessory interests, leaving out the incorporeal or non-possessory interests such as easements or profits a prendre.5 In the United States there are two or three differ­ ent classification schemes that have been adopted regarding the sev­ ered oil and gas estate.6 A large number of states, including Arkansas, Colorado, Kansas, New Mexico, North Dakota and Texas, 4, RESTATEMENT OF PROPERTY 9 (1936). 5. OLIN BROWDER, ET AT" BASIC PROPERTY LAW 203-04 (5th ed. 1989) (hereinafter BROWDER, ET AL.). 6. See generally 1 HOWARD WILLIAMS & CHARLES MEYERS, OIL AND GAS LAW 203 (1993) (hereinafter WILLIAMS & MEYERS). HeinOnline -- 33 Washburn L.J. 541 (1993-1994) 542 Washburn Law Journal [Vol. 33 treat the severed estate as a possessory or corporeal interest.? Obvi­ ously, in these states an owner of a severed oil and gas estate may create any of the recognized estates that may be carved out of the fee simple absolute. Another group of states, including California, Indiana, Louisiana, New York, Oklahoma'and Wyoming,S treat the severed mineral estate as creating only a non-possessory interest, akin to a profit a prendre, which gives the owner the right to explore for, search and then cap­ ture the oil or gas by bringing it to the surface. In these non-owner­ ship states, therefore, the common law estate system should not be applicable since the severed oil and gas estates can never become pos­ sessory. Notwithstanding the contradiction, courts in non-ownership jurisdictions continue to employ the common law estates classification scheme to describe various mineral and leasehold interests that may be carved out of the oil and gas estate.9 It is axiomatic in classical property jurisprudence that a person can only transfer an interest equal to or smaller than the interest owned. That axiom is reflected in the famous maxim, "nemo plus juris transferre potest quam ipse habet" - No one can transfer a better title than he himself has.to This concept applies to the size, nature and duration of the property interest. Therefore, the owner of an incorpo­ real interest cannot assign or transfer a corporeal interest.ll Likewise in non-ownership jurisdictions, or in jurisdictions such as Kansas which treat the leasehold estate as an incorporeal interest,12 the roy­ alty interest that is carved out of the lease should be classified as a chattel real or a chose in action.13 Yet royalty interests are universally treated as incorporeal interests even in states which treat the lease as 7. See cases cited in 1 WILLIAMS AND MEYERS, supra note 6, at 44-50. The Texas Supreme Court in Stephens County v. Mid-Kansas Oil & Gas Co., 254 S.W. 290 (Tex. 1923) concluded: We do not regard it as an open question in this state that gas and oil in place are minerals and realty, subject to ownership, severance, and sale, ... in like manner and to the same extent as is coal. .... But it is earnestly insisted that the instruments con­ veyed only incorporeal hereditaments ... and that the terms of the instruments pre­ cluded the vesting of title to the gas and oil save as personalty after being brought to the surface. Ownership of the gas and oil in place meant having the exclusive right to possess, use and dispose of the gas and oil. [d. at 292. 8. See cases cited at 1 WILLIAMS & MEYERS, supra note 6, at 34-44. 9. For example in Gerhard v. Stephens, 442 P.2d 692 (Cal. 1968), the court found that an oil and gas lease created a defeasible fee estate even though only an incorporeal hereditament was created. See also, Callahan v. Martin, 43 P.2d 788 (Cal. 1935); Stewart v. Amerada Hess Corp., 604 P.2d 854 (Okla. 1979). 10. BROWDER, ET AL., supra note 5, at 756. 11. RICHARD HEMINGWAY, THE LAW OF OIL AND GAS 60 (3d ed. 1992) [hereinafter HEMINGWAY]. 12. Lathrop v. Eyestone, 227 F.2d 136 (Kan. 1951). 13. JON BRUCE & JAMES ELY, JR., THE LAW OF EASEMENTS AND LICENSES 3-7 (1988); HEMINGWAY, supra note 11, at 60. HeinOnline -- 33 Washburn L.J. 542 (1993-1994) 1994] The Mangling of Common Law p'roperty Concepts 543 an incorporeal hereditament.14 Likewise states which treat the oil and gas estate as an incorporeal interest should treat the leasehold estate
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