60 TEXAS JOURNAL OF OIL , GAS , AND ENERGY LAW [ Vol . 16:1
tions thereof ) are each freely alienable . 76 In other words , a surface owner , who does not own an interest in the mineral estate , may have reserved rights typically associated with the mineral estate ( e . g ., the right to enter into a mineral lease or the right to collect a bonus upon execution of such lease ), and vice versa , a mineral owner , who does not own an interest in the surface estate , may have been granted rights typically associated with the surface estate ( e . g ., the right to inject substances into geological structures ). 77 Therefore , it is imperative to review the instruments in the chain of title to the property in question carefully to understand if , and how , the rights associated with the mineral estate of that tract have been severed and to ensure that neither the applicable mineral conveyance nor reservation is so broad as to include ownership of the geological structures beneath the surface , or so narrow that the surface estate reserved or conveyed in the instrument is limited to just the soil on the surface of the land . 78
In many cases , the acquisition of the right to store gas is separate and distinct from the need to obtain a subsurface easement from the mineral estate owner as well as any mineral lessee ( unless , for example , no severance has occurred and there is no active mineral lease on the subject property ). 79 In the vast majority of cases , a surface use agreement with the surface owner is required to inject gas into the premises , and this agreement accounts for the injector ’ s rights to possession and use of the subsurface geological structures included in the surface estate of the applicable tract . However , this agreement will not account for the use or displacement of native mineral substances potentially resulting from the injection of foreign gas into such structures . Consequently , a subsurface easement with the mineral owner or respective mineral lessee ( in an instance where an active mineral lease encumbers the property ) is required to account for the native mineral substances that may exist in the subsurface structures which are ultimately injected into , as well as any mineral substances that are displaced as a result of drilling to reach , the geological structure into which the foreign gas is being injected . Accordingly , it is necessary to understand the distinction between the rights and obligations associated with the surface and mineral estates in order to ensure that injection operations do not expose the injection operator to trespass or conversion claims from either the surface or mineral estate owners or other unaccounted for obligations .
76 . At least one state has declared that pore space belongs to the surface owner and may not be severed . See generally , N . D . CENT . CODE ANN . §§ 47-31-0 to -05 ( West 2020 ).
77 . Owen Anderson & R . Lee Gresham , Legal and Commercial Models for Pore-Space Access and
Use for Geologic CO2 Sequestration , ROCKY MTN . MIN . L . INST . Paper No . 9 , * 9-10 ( 2015 ). 78 . Id . 79 . In such an instance , the landowner would be the only party with whom an agreement must be entered into because both the subsurface geological structures and the mineral substances which are encased in such structures belong to the same landowner .