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Identifying implied surface rights

The term "mineral right" implies that one's claim to ownership extends only to the minerals found from beneath the ground of a property in California. This distinction is made due to the fact that a separate ownership category exists defining surface rights. In many agreements, the owner of a property retains the surface rights and simply sells or leases the rights to the minerals found therein to different extraction companies. Yet there are scenarios where the two terms can be blurred, thus allowing mineral rights owners to have certain surface rights, as well. 

The most obvious of these would be express rights detailed in either a sale or lease contract. Surface rights conceded by property owners typically include structure permits and extraction methodologies, as they may care less about the method through which the mineral rights owners conducts its work as they do in being compensated for the use of the land. Yet California law does indeed open the door to interpretation when it comes to additional surface rights. In defining "mineral rights," Section 883.110 of the California Civil Code states that such rights include any "express or implied appurtenant surface rights." 

What might qualify as implied surface rights? The most closely applicable answer may be in extending the definition of an implied easement to such a scenario. Typically, three elements must be present for an implied easement to exist: 

  • It must be reasonably necessary for the enjoyment of the property
  • The land must have been divided by the owner so that either it retains a certain part or makes subdivided areas available to different owners or lessees
  • The implied easement's claim must have existed prior to the acquisition of the property 

In cases involving oil and gas extraction, identifying implied surface rights can be critical to claiming production authority. 

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