Key Takeaways
- The Texas Supreme Court joins states following the “American Rule” for Pore Space ownership.
- Though states are legislating to define pore-space ownership, accommodation remains an issue.
- States compel pore-space unitization for commercial projects.
Texas is the latest in a growing number of states to tackle the issues related to ownership and severability of the pore space underneath land as carbon capture and sequestration (CCS) remains a relevant tool in CO2 reduction. However, determination of ownership does not solve all issues.
This article is an update of the presentation “Litigation over Mineral Use of ‘Pore Space’” given before the Institute for Energy Law on Nov. 9, 2022.
The Texas Supreme Court Weighs In
In May 2025, the Texas Supreme Court issued its decision in Myers-Woodward LLC v. Underground Services Markham, LLC, finding that “the surface owner, and not the mineral lessee, owns the possessory rights to the space under the property’s surface,” absent an agreement otherwise.[i]
In that case, owners of a mineral interest in salt under property owned by Myers-Woodward, LLC, brought a declaratory judgment to determine who owned the pore space left behind after harvesting the salt – the mineral estate owner or the landowner. Both claimed they had the right to use the pore space to store oil and gas transported to the property.[ii]
After analyzing Texas law and the relevant deed, the court found it boiled down to the fact that “empty space is not salt,” and therefore “the mineral estate generally does not entail physical ownership of it.”[iii]
The court examined its prior holdings in Humble Oil & Refining Co. v. West, Lightning Oil Co. v. Anadarko E&P Onshore, LLC, and Regency Field Services, LLC v. Swift Energy Operating, LLC, to “hold, once again, that ‘the surface owner, and not the mineral lessee, owns the possessory rights to the space under the property’s surface,’ absent an agreement otherwise.”[iv]
However, the court implied that a landowner could convey the pore space with a mineral conveyance, by cautioning against relying too heavily on the general labels of “surface” or “mineral” estate. The high court argued that Texas courts “should therefore begin with the text of the conveyance—not with generalizations about the default nature of a ‘surface estate’ or a ‘mineral estate.’”[v]
As the Texas court’s caution suggests, the common law allows us to create a wide range of interests, first out of the fee simple absolute estate – interests like rights of way, severance of estates by one mineral or all minerals, and so forth.
The law also recognizes a range of collateral rights. For example, “ancient lights.” There is also the right of subjacent support. And then there are the interests that can be carved out of mineral leases, such “volumetric production payments” or wellbore assignments.
The point of mentioning the creativity of the common law is this: If parties want to create something called a “pore space estate” or a “topsoil estate,” there is no general impediment to their doing so.
States Decide Ownership and Severability
Other states – after determining the pore space belongs to the surface owner by default – have analyzed the mineral conveyances or reservations to determine whether they created and/or conveyed a pore space estate. Take the Supreme Court of Montana. In Burlington Resources Oil & Gas Co., LP v. Lang & Sons Inc., the court found that the prior landowner’s deed reservation of the mineral rights did not reserve the pore space by reserving “all the coal, oil, gas, and other minerals in and under.”[vi] This suggests two things: (1) Pore space is separate from the mineral estate, and (2) a conveyor must expressly reserve the pore space if it wishes to do so.
Other states, like California, have avoided deciding who “owns” the pore space altogether, only finding that “subsurface migration of oil field wastewater into a mineral estate (groundwater pore space) of another without that landowner’s consent is a trespass under California law.”[vii]
But more recently, states have been allocating default title to pore space via legislation.
The Wyoming and Oklahoma legislatures, among others, have enacted statutes to make clear that pore space (1) belongs to the surface owner and (2) can be severed.[viii] Wyoming adds that “no agreement conveying mineral or other interests underlying the surface shall act to convey ownership of any pore space in the stratum unless the agreement explicitly conveys that ownership interest.”[ix] Other states have followed suit.[x]
North Dakota has gone the other way and preemptively voided any transaction attempting to sever title of the pore space from the surface interest, but allowed surface owners to lease pore-space rights.[xi]
However, a state’s attempt to adjudicate title in severed estates risks large lawsuits for takings of property rights. This happened in North Dakota.[xii]
Dominant Estate Doctrine Makes Things More Complicated
While more and more jurisdictions are leaning into the pore space “estate” rather than easement or other type of right,[xiii] Professor Joseph A. Schemmer points out several difficulties in categorizing pore space as a freehold estate – such as potential title issues, hindrance to development and investment.[xiv]
However, the question of who has the right to use pore space does not end at ownership or severance.
The dominant estate doctrine addresses what happens when a surface owner and a mineral owner want to use the same surface. Say that I want a well pad and you want a wheat field. Most states say the mineral interest is dominant, meaning the well pad beats the wheat field. Many states add a requirement that the mineral owner act reasonably, to accommodate the surface owner’s use.
The Myers-Woodward court addressed this too. There, the mineral-salt estate owners also argued that their right to use the space to harvest salt was “dominant” over the landowner’s right to that space. But the court dismissed that argument with ease, reasoning that the dominant estate doctrine is premised on the mineral owner only using “as much of the surface—and subsurface—as is reasonably necessary to recover its minerals.”[xv] Storing hydrocarbons produced elsewhere was not “reasonably necessary to recover [the] salt.”[xvi]
But what if the mineral estate owner produces oil and gas and wants to store production in the pore space underneath the land? Is that storage reasonably necessary for production?
What if the surface owner leases the pore space out to a producer to store carbon produced off lease but a mineral estate owner also wants to drill in the same location through the same pore space? West Virginia legislated around this one too, allowing by plain terms operators to drill or bore through a CO2 storage facility if done in accordance with the state’s regulations.[xvii]
Compulsory Pooling and Administrative Process as Solutions
Another issue arises when more than one landowner has land needed for a carbon sequestration project and the landowners cannot agree. In that scenario, all the legislature needs to do is empower a state agency to compel them to join an agreement for the CCS operation. In other words, let the state compel the creation of a carbon sequestration “unit,” have the agency determine a fair allocation of the injection fees among the owners (thus compensating them for their property), put the disputed funds in escrow, and let the surface and mineral owners fight it out on declaratory judgment in court.
Wyoming, Kentucky, Nebraska and North Dakota among others have done just that.[xviii] They have passed compulsory pooling statutes that compel nonconsenting pore-space owners to pool their pore space with consenting pore space owners if the operator has consent from pore-space owners over a certain percentage from the area.[xix]
Moreover, an administrative process could result in fewer logistical nightmares. For example, North Dakota, which had its courts and legislature battle over who owns pore space, passed Chapter 38-22 of its Century Code, which bestows authority on its Industrial Commission to administer the legislation and “regulate activities relating to a storage facility.”[xx] North Dakota Administrative Code Chapter 43-05-01 governs permitting, “determining storage amounts,” and plugging and abandoning.[xxi]
There is a government-run public process for drilling permits, for enhanced-recovery injection wells and for saltwater disposal wells. It seems that legitimate concerns about imprudent use of the pore space can be heard and resolved by the same process, and more quickly than suits for trespass or nuisance can be.
Summing Up
Texas now joins those jurisdictions holding that the surface owner owns the pore space below. However, this only raises more questions about the right of use. While state legislative adjudication of title can lead to protracted litigation, states could solve issues with compulsory pooling and administrative procedures for pore-space disputes.
[i] --- S.W.3d --- (2025), No. 22-0878, 2025 WL 1415892, at *7 (Tex. May 16, 2025).
[ii] Id. at *1.
[iii] Id. at *6.
[iv] Id. at *7 (quoting Regency Field Servs., LLC v. Swift Energy Operating, LLC, 622 S.W.3d 807, 820 (Tex. 2021)).
[v] Id. at *3.
[vi] Burlington Res. Oil & Gas Co., LP v. Lang & Sons Inc., 259 P.3d 766, 770 (Mont. 2011).
[vii] Starrh & Starrh Cotton Growers v. Aera Energy LLC, 63 Cal. Rptr. 3d 165, 170 (2007).
[viii] Wyo. Stat. Ann. § 34-1-152; 60 Okla. Stat. § 6(B); see also Thomas A. Donaho, CCUS Regulatory Handbook (2023), available at: https://admin.bakerlaw.com/wp-content/uploads/2023/06/Carbon-Capture-Regulatory-handbook-CCUS.pdf, for a more robust list of pore-space-ownership statutes.
[ix] Wyo. Stat. Ann. § 34-1-152(b) (emphasis added).
[x] See Indiana Code § 14-39-2-3; Kentucky Rev. Stat. Ann. § 353.800; Nebraska Rev. Stat. § 57-1604; Utah Code Ann. § 40-6-20.5; West Virginia Code Ann. § 22-11B-18.
[xi] N.D. Cent. Code § 47-31-05.
[xii] In 2017 the North Dakota Supreme Court decided Mosser v. Denbury Res., Inc., 898 N.W.2d 406 (N.D. 2017). The court made clear that “pore space is part of the surface owner’s interest in the land” and that “a surface owner may be entitled to compensation under [this statute] for a mineral developer’s use of the surface owner’s subsurface pore space for disposal of saltwater.” Id. at 415. In fact, the court held that surface owners do not even have to show “a diminution in market value” or even that they had plans to use the pore space. Id. at 417. In 2019, the North Dakota legislature tried to block landowners from recovering damages for use of the pore space by introducing Senate Bill 2344. Nw. Landowners Ass’n v. State, 978 N.W.2d 679, 685 (N.D. 2022). However, landowners sued and the North Dakota Supreme Court found the legislation unconstitutional under the Takings Clause. Id. at 699. The state was required to pay attorneys’ fees. Id. at 699.
[xiii] See Dep’t of Transp. v. Goike, 220 Mich. App. 614, 617 (1996); Miles v. Home Gas Co., 35 A.D.2d 1042, 1043 (N.Y. App. Div. 1970); Chartiers Block Coal Co. v. Mellon, 152 Pa. 286, 296-97 (1893).
[xiv] Joseph A. Schremmer, “Reflections on the ‘Pore Space Estate,’” 10 ONE J __ (forthcoming 2025) (available at SSRN: https://ssrn.com/abstract=5260004 or http://dx.doi.org/10.2139/ssrn.5260004 (2025)).
[xv] Myers-Woodward, LLC, --- S.W.3d ----, 2025 WL 1415892, at *7 (quoting Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 50 (Tex. 2017)).
[xvi] Id.
[xvii] W. Va. Code § 22-11B-9.
[xviii] Kentucky Rev. Stat. § 353.806 (“If, after good-faith negotiation, the storage operator cannot locate or cannot reach an agreement with all necessary pore space owners, but has secured written consent or agreement from the owners of at least fifty-one percent (51%) of the interest in the pore space for the storage facility, the division shall order the pooling of all pore space included within the proposed storage facility.”); Nebraska Rev. Stat. § 57-1612 (“If a storage operator does not obtain the consent of all persons who own a reservoir estate within the storage reservoir, the commission may require that any reservoir estates owned by nonconsenting owners be included in a storage facility and subject to geologic storage.”); North Dakota Cent. Code § 38-22-10 (“If a storage operator does not obtain the consent of all persons who own the storage reservoir’s pore space, the commission may require that the pore space owned by nonconsenting owners be included in a storage facility and subject to geologic storage.”); West Virginia Code Ann. § 22-11B-19 (“If, after good-faith negotiation, the applicant or operator cannot locate or cannot reach an agreement with all necessary pore space owners of a tract or parcel but has secured written consent or agreement from the owners of at least 75 percent of the interests in the pore space of the tract or parcel for the storage facility, all of the pore space of said interests for which an agreement has not been reached shall be declared to be included within the proposed storage facility if the commission finds that the requirements of this section have been met. For the purposes of this section, any unknown or unlocatable owners shall be deemed to have consented or agreed to the use of said pore space, provided that the storage operator has complied with the publication requirements of this article.”). For a more robust list of statutes, see Thomas A. Donaho, CCUS Regulatory Handbook (2023), available at: https://admin.bakerlaw.com/wp-content/uploads/2023/06/Carbon-Capture-Regulatory-handbook-CCUS.pdf.
[xix] However, Oklahoma and Wyoming passed legislation making clear that nothing in their CO2 sequestration legislation allows private operators the right of condemnation or eminent domain.
[xx] North Dakota Cent. Code § 38-22-03 (titled “Commission Authority”).
[xxi] See N.D. Admin. Code § 43-05-01. Section 43-005-01-20, titled “Determining storage amounts,” for example, allows an operator to have a hearing before the commission for an order “determining the amount of injected carbon dioxide stored in a reservoir that has been or is being used for an enhanced oil or gas recovery project or in a storage reservoir that has been or is being used for storage under a permit issued pursuant to” statute.
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