Richard D. Crawford v. XTO Energy, Inc.

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00217-CV
___________________________

RICHARD D. CRAWFORD, Appellant

V.

XTO ENERGY, INC., Appellee

On Appeal from the 96th District Court
Tarrant County, Texas
Trial Court No. 096-262638-12

Before Kerr, Birdwell, and Bassel, JJ.
Memorandum Opinion by Justice Birdwell
 MEMORANDUM OPINION

Introduction

This appeal involves another title and contract dispute that appears to have

resulted from the “frenzy to lease as many mineral rights as possible”1 in the Barnett

Shale. See, e.g., Green v. Chesapeake Expl., L.L.C., No. 02-17-00405-CV, 2018 WL

6565790, at *1–2 (Tex. App.—Fort Worth Dec. 13, 2018, no pet.) (mem. op.).

Richard D. Crawford, the lessor under an oil-and-gas lease with XTO Energy, Inc.,

sued XTO after it determined he was not the owner of the oil and gas it had leased

and refused to pay him royalties. The trial court granted summary judgment for XTO

on all of Crawford’s claims after determining that under the strip-and-gore doctrine,

Crawford’s predecessor had divested her ownership of the oil and gas in 1984; thus,

neither Crawford nor his predecessor could have validly leased the oil and gas, and

Crawford was not entitled to royalties. The trial court also denied a competing motion

for partial summary judgment filed by Crawford. Because we agree with the trial court

that the strip-and-gore presumption applies as a matter of law, and that Crawford’s

predecessor thus did not retain her interest in the oil and gas when conveying the

surrounding property in 1984, we affirm.

1
J. Zach Burt, Playing the “Wild Card” in the High-Stakes Game of Urban Drilling:
Unconscionability in the Early Barnett Shale Gas Leases, 15 Tex. Wesleyan L. Rev. 1, 8
(2009) (explaining the rise of urban leasing techniques, in which independent landmen
must compete to obtain leases from as many small landowners as possible in urban
areas).

2
 Background

The parties relied on the following stipulated facts in their competing motions

for summary judgment. In 1963, Mary Ruth Crawford became the owner of 145.99

acres in Tarrant County, Texas, through a partition deed. In 1964, Mary Ruth

conveyed to Texas Electric Service Company (TESCO) the surface of 8.235 acres (the

TESCO Tract) of her larger tract. The deed acknowledged that .093 of an acre of the

TESCO Tract was located in a county road. The deed also contained two reservations

of rights to Mary Ruth and one covenant by TESCO2:

Grantors reserve unto themselves, [and] their heirs and assigns, the right
to open streets over and across the [TESCO Tract] to construct, or
cause to be constructed, water lines, sewer lines, gas lines[,] and
telephone lines thereon; provided (1) that such streets shall not be closer
than 300 feet apart, and shall be located so that the outer boundary
thereof will not be less than 25 feet from any then-existing steel tower
supporting any electric line thereon, (2) that such streets and utility lines
shall not cross the lands herein conveyed at an angle of less than 45
degrees to the near side, (3) that such utility lines shall not interfere with
Grantee’s installations on such property at the time such utility lines are
constructed, and (4) that such streets shall be constructed and
maintained, including grading, surfacing, curbs[,] and gutters, at no cost
or expense to Grantee.

Grantors reserve unto themselves, [and] their heirs and assigns,
the right to all oil and gas in and under the lands herein conveyed [(the
Disputed Tract)] but expressly waive all rights of ingress and egress for
the purpose of drilling for or producing oil and/or gas from the surface
of the [TESCO Tract] provided that wells opened on other lands may be
bottomed on [the TESCO Tract].

Because the wording of these clauses in comparison to each other is critical to
2

our analysis, we reproduce them verbatim. We retain the deed’s plural usage of
Grantors even though Mary Ruth was the sole grantor.

3
 Grantee agrees that as long as Grantors’ adjoining property is
used for grazing or farming purposes, Grantee will erect no fences or
other barriers along the lines dividing Grantors’ property and the
property herein conveyed; provided, however, that this agreement shall
terminate should Grantors’ adjoining property be subdivided for
residential purposes. [Emphasis added.]

This picture shows the boundaries of the TESCO Tract and Disputed Tract in

relation to the surrounding land:

After acquiring the TESCO Tract, TESCO placed steel electric towers along its

entire length.

In 1984, Mary Ruth conveyed 76 acres of her adjoining land to the north and

south of the TESCO Tract and Disputed Tract to a third party without reserving any

of the oil and gas thereunder or mentioning her previously reserved right to the

4
Disputed Tract.3 Over twenty years later, in 2007, Hollis R. Sullivan, Inc. leased the

Disputed Tract from Mary Ruth. The lease allows the lessee to pool the Disputed

Tract with other leased lands and generally prohibits surface operations, restricting

development of the oil and gas to pooling “and/or . . . directional or horizontal

drilling commenced from a surface location on other lands in such manner that the

path of the wellbore is under and through the leased premises and the bottom-hole or

terminus is on the leased premises or lands pooled therewith.”

Mary Ruth died later in 2007, and Crawford inherited her estate. Crawford

ratified the Sullivan lease in April 2009; by that time, XTO had acquired the lessee’s

interest. XTO or its predecessor had also acquired oil and gas leases from all of the

mineral estate owners on both sides of the Disputed Tract. In May 2009, XTO pooled

almost 800 leases, including Crawford’s, into the Eden Southwest Unit.

Since 2009 XTO has completed and sold production from four wells in the

Eden Southwest Unit. But XTO has never paid Crawford any royalties under the

Sullivan lease because in 2011, after receiving a title opinion on the Disputed Tract,4

3
The parties agree that after this conveyance, Mary Ruth owned no other
surface or mineral rights adjoining the Disputed Tract.
4
See Rob Davis, A Landman’s Work is the Foundation for Accurately Determining
Mineral Ownership Under Rights-of-Way: So, How Should a Landman Search for Roadway
Title?, 18 Tex. Wesleyan L. Rev. 39, 40, 43 (2011) (describing role of landmen in
researching mineral estate ownership, asserting that a proper pre-leasing ownership
determination requires not only the landman’s title search but also an attorney’s title
examination and written opinion, and describing three types of title opinions: lease
purchase opinions created before a bonus is paid, drilling title opinions created before

5
XTO determined that Mary Ruth’s 1984 conveyance of the adjoining lands also

divested her title to the Disputed Tract under the strip-and-gore doctrine. 5

Crawford sued XTO for breach of the lease, conversion, removal of a cloud on

title, “money had and received,” and for declaratory relief. XTO filed its own

countersuit, which it later nonsuited.

After appeals on unrelated procedural grounds and a remand to the trial court, 6

XTO sought traditional summary judgment on all of Crawford’s claims, arguing that

the strip-and-gore doctrine applies as a matter of law; therefore, Crawford’s claims,

which are all based on his alleged property ownership, fail. Crawford filed a response

to XTO’s motion for summary judgment but also filed a traditional and no-evidence

motion for partial summary judgment contending the strip-and-gore doctrine does

drilling begins, and division order title opinions); Paul G. Yale, To Waive or Not to
Waive? Analyzing Oil and Gas Title Opinion Requirements, Landman at 23, 25 (Nov./Dec.
2009) (“It is increasingly common for companies drilling wells in the Barnett Shale,
where units can include hundreds of town lots, to instruct their title examiners to limit
review of documents to a point in time forward from when the urban subdivisions
were platted. This increases title risk significantly but for some companies the risk is
justified by an increase in timesavings and a decrease in abstracting and title
examination costs.”).
5
XTO admits in its briefing that its predecessor obtained leases from both Mary
Ruth and those in the chain of title from her 1984 conveyance. As XTO described the
process, “It was truly a belt and suspenders approach. After a well was drilled and
there was production, XTO had to decide who owned the minerals under the narrow
strip of land beneath the electric company’s lines and facilities and who was entitled to
receive the royalty payments.”
6
See Crawford v. XTO Energy, Inc., 509 S.W.3d 906, 908, 914 (Tex. 2017).

6
not apply as a matter of law because there is no evidence that the Disputed Tract

ceased to benefit Mary Ruth after her 1984 conveyance.

In response to Crawford’s motion for partial summary judgment, XTO filed an

affidavit from engineer Cary McGregor purporting to be an expert opinion on the

monetary value of the Disputed Tract in 1984. Crawford objected to the affidavit and

moved to strike it on timeliness and admissibility grounds, among others, but the trial

court overruled his objections and refused to strike the affidavit.

After hearing argument, the trial court granted XTO’s motion for summary

judgment, denied Crawford’s, and rendered a final judgment for XTO.

Issues on Appeal

Crawford’s first issue presents a question of law: Did the trial court err by

determining as a matter of law that under the strip-and-gore doctrine, Mary Ruth’s

1984 conveyance of the remaining adjacent land also conveyed the Disputed Tract? In

his second issue, Crawford contends that the trial court erred by denying his motion

to strike the McGregor affidavit. And his remaining third through sixth issues raise

complaints contingent upon his prevailing in his first issue. Because we conclude that

the trial court could have properly granted XTO’s motion for summary judgment

even without considering the McGregor affidavit, we address Crawford’s first issue

only. See Tex. R. App. P. 47.1; Reynolds v. Murphy, 188 S.W.3d 252, 259 (Tex. App.––

Fort Worth 2006, pet. denied) (op. on reh’g) (declining to address propriety of trial

court’s ruling on nonmovant’s objections to movant’s summary judgment evidence

7
because, even if court of appeals disregarded that evidence, appellant did not raise fact

issue).

Standard of Review

We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315

S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the light most

favorable to the nonmovant, crediting evidence favorable to the nonmovant if

reasonable jurors could, and disregarding evidence contrary to the nonmovant unless

reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289

S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable inference and resolve any

doubts in the nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex.

2008).

A plaintiff is entitled to summary judgment on a cause of action if it

conclusively proves all essential elements of the claim. See Tex. R. Civ. P. 166a(a), (c);

MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). A defendant who conclusively

negates at least one essential element of a cause of action is entitled to summary

judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010);

see Tex. R. Civ. P. 166a(b), (c). When both parties move for summary judgment and

the trial court grants one motion and denies the other, the reviewing court should

review both parties’ summary judgment evidence, determine all questions presented,

and render the judgment that the trial court should have rendered. See Myrad Props.,

8
Inc. v. LaSalle Bank Nat’l Ass’n, 300 S.W.3d 746, 753 (Tex. 2009); Mann Frankfort, 289

S.W.3d at 848.

Strip-And-Gore Doctrine Applies And Crawford Did Not Rebut It;
Mary Ruth Conveyed the Disputed Tract in 1984

The question of law raised in Crawford’s first issue is common to the parties’

competing motions for summary judgment.

Applicable Law

We have recently described and applied the strip-and-gore doctrine––a long-

standing, policy-driven presumption employed to discourage litigation and title

disputes––in a similar circumstance:

Our objective when construing a deed is to give effect to the grantor’s
expressed intent in the deed’s language. See Lane Bank Equip. Co. v. Smith
S. Equip., Inc., 10 S.W.3d 308, 321 (Tex. 2000). The strip-and-gore
doctrine is used to aid in determining a grantor’s intent––not as to the
land described in the deed itself, but as to adjoining land not referenced
in the deed. Strayhorn v. Jones, 300 S.W.2d 623, 638 (Tex. 1957) (holding
that the doctrine applies only when a description of the specific strip is
not included in the field notes of the adjoining land’s conveyance;
otherwise, there would be no need to employ a rule of construction or
presumption); see Angelo v. Biscamp, 441 S.W.2d 524, 527 (Tex. 1969);
Cantley v. Gulf Prod. Co., 143 S.W.2d 912, 915 (Tex. 1940); Red Boot Prod.
Co. v. Samson Expl., LLC, No. 09-14-00191-CV, 2015 WL 5730789, at *5
(Tex. App.—Beaumont Oct. 1, 2015, no pet.) (mem. op.); Escondido
Servs., LLC v. VKM Holdings, LP, 321 S.W.3d 102, 109 (Tex. App.––
Eastland 2010, no pet.); Glover v. Union Pac. R.R., 187 S.W.3d 201, 212
(Tex. App.––Texarkana 2006, pet. denied); Alkas v. United Sav. Ass’n of
Tex., 672 S.W.2d 852, 857 (Tex. App.––Corpus Christi 1984, writ ref’d
n.r.e.); Pebsworth v. Behringer, 551 S.W.2d 501, 503–04 (Tex. Civ. App.––
Waco 1977, no writ); see also Snoddy v. Bolen, 25 S.W. 932, 934 (Mo. 1894)
(“In the vast majority of cases the rule works out the real intention of
the parties at the date of the deed.”); 23 Am. Jur. 2d Deeds § 254 (“It is
presumed that a party granting land does not intend to retain a narrow

9
 strip between the land sold and the boundary line in the absence of
express provision to that effect in the deed, especially where the strip is
so narrow as to be of no practical use to the grantor. This presumption . . . is,
however, rebuttable, the question being purely one of intention; and when the
intention is ascertainable from the face of the instrument or a record,
other evidence is not admissible.” (emphases added) (footnotes
omitted)). The strip-and-gore doctrine applies when

it appears that a grantor has conveyed all land owned by
him adjoining a narrow strip of land that has ceased to be
of any benefit or importance to him[;] the presumption is
that the grantor intended to include [that] strip in [the]
conveyance[] unless it clearly appears in the deed, by plain
and specific language, that the grantor intended to reserve
the strip.

Crawford[], 509 S.W.3d [at] 909 [] (quoting Cantley, 143 S.W.2d at 915).

Application of the strip-and-gore doctrine is highly policy-driven:
it discourages title disputes and prolonged litigation––providing certainty
in land titles––and encourages the use and development of real property.
See Angelo, 441 S.W.2d at 526–27 (emphasizing that doctrine applies
when adjoining land ceases to benefit or be important to grantor upon
conveyance of land described in deed); Cantley, 143 S.W.2d at 915; see also
Johnson v. Arnold, 18 S.E. 370, 372 (Ga. 1893) (“In the main, the fee in
such property under such detached ownership would be and forever
continue unproductive and valueless.”). Courts have applied the strip-
and-gore doctrine’s presumption to mineral interests. See Escondido Servs.,
321 S.W.3d at 107–09; Glover, 187 S.W.3d at 212–13; Reagan v. Marathon
Oil Co., 50 S.W.3d 70, 80–81 (Tex. App.––Waco 2001, no pet.); Krenek v.
Texstar N. Am., 787 S.W.2d 566, 568–69 (Tex. App.––Corpus Christi
1990, writ denied); Lackner v. Bybee, 159 S.W.2d 215, 216–18 (Tex. Civ.
App.––Galveston 1942, writ ref’d w.o.m.).

Green, 2018 WL 6565790, at *3.

Crawford does not argue, as did the appellant in Green, that the Disputed Tract

is a narrow strip in comparison to the adjoining land Mary Ruth conveyed in 1984;

instead, he contends that XTO did not, and cannot, prove that the Disputed Tract

10
ceased to be of benefit or importance to Mary Ruth upon her 1984 conveyance 7

because in the 1964 TESCO deed she had retained a conditional, reversionary right to

access the surface of the Disputed Tract to develop the oil and gas if she were unable

to open a well on other land that would bottom on the Disputed Tract.8 XTO, on the

other hand, claims that Crawford’s 1964 surface-access waiver was absolute. Thus, we

must construe the 1964 deed to determine the scope of the rights Mary Ruth reserved

vis à vis the Disputed Tract. See, e.g., Wenske v. Ealy, 521 S.W.3d 791, 794 (Tex. 2017)

(reiterating that construction of unambiguous deed is question of law requiring court

to determine parties’ intent from deed’s four corners and to examine and harmonize

the entire instrument so that no provision will be rendered meaningless).

Analysis

Whether Mary Ruth’s interest in the Disputed Tract remained of any benefit to

her after the 1984 conveyance of the adjoining property hinges on whether, in 1984,

she retained any ability to access the Disputed Tract for development. Before the

7
Although Crawford cites Rio Bravo v. Weed, 50 S.W.2d 1080, 1085 (Tex. 1932),
for the proposition that the appurtenance doctrine underlies the requirement that a
strip must have ceased to be of benefit or importance to the grantor for the strip-and-
gore doctrine to apply, the Texas Supreme Court has distinguished the appurtenance
doctrine it relied on in Rio Bravo from the strip-and-gore doctrine. Angelo v. Biscamp,
441 S.W.2d 524, 526–27 (Tex. 1969); Escondido Servs., Inc. v. VKM Holdings, LP, 321
S.W.3d 102, 106–07 (Tex. App.––Eastland 2010, no pet.).
8
Crawford also argued in the trial court and in his opening brief that the strip-
and-gore doctrine cannot apply in the absence of ambiguity in the 1984 deed. But we
rejected the same argument in Green, handed down after appellant filed his opening
brief. 2018 WL 6565790, at *3–5.

11
advent of widespread, efficient (and profitable) horizontal drilling in the Barnett

Shale––in 2002––“[p]ractically speaking, [a] mineral estate would be wholly worthless

if the owner of the minerals could not enter upon the land in order to explore for and

extract them.” Plainsman Trading Co. v. Crews, 898 S.W.2d 786, 788–89 (Tex. 1995);

Green, 2018 WL 6565790, at *5 & n.13. If Mary Ruth did not retain surface-access

rights in the 1964 deed, she had no way to develop the Disputed Tract; therefore, that

interest would have ceased to be of practical benefit to her after the 1984

conveyance.9

The oil-and-gas reservation in the 1964 deed provides,

Grantors reserve unto themselves, [and] their heirs and assigns, the right
to all oil and gas in and under the [Disputed Tract] but expressly waive
all rights of ingress and egress for the purpose of drilling for or

9
Without surface access, the only possible ways for Mary Ruth to develop the
oil and gas in 1984 were either via directional drilling from adjacent lands or pooling.
See Coastal Oil & Gas Corp. v. Garza Energy Tr., 268 S.W.3d 1, 13–14 (Tex. 2008)
(explaining that deviated well, also called a slant well, produces gas from the property
on which it is bottomed, which is why such a well is prohibited from bottoming on
property not owned by the lessor); Browning Oil Co. v. Luecke, 38 S.W.3d 625, 634–36
(Tex. App.––Austin 2000, pets. denied) (op. on reh’g) (providing explanation of
mechanics and advantages of horizontal drilling); R.R. Comm’n v. Mack-Hank Petroleum
Co., 186 S.W.2d 351, 357 (Tex. App.––Austin) (describing directional drilling from
adjoining lands), rev’d on other grounds, 190 S.W.2d 802 (Tex. 1945); cf. City of Del Rio v.
Clayton Sam Colt Hamilton Tr., 269 S.W.3d 613, 617–18 (Tex. App.––San Antonio
2008, pet. denied) (noting that owner of subsurface groundwater who had waived
surface access in deed, but who also owned adjoining lands, could access the
groundwater through drainage or directional drilling from adjoining lands); 16 Tex.
Admin. Code § 3.37(m)(5) (providing that deviated well drilled after April 1, 1949 in
violation of state permit is illegal). After Mary Ruth conveyed her adjoining land,
directional drilling was an impossibility, and there is no evidence that pooling with
other mineral interest owners was a possibility in 1984. See Green, 2018 WL 6565790,
at *5.

12
 producing oil and/or gas from the surface of the [TESCO Tract] provided
that wells opened on other lands may be bottomed on the [TESCO
Tract].

Crawford argues that the phrase, “provided that wells opened on other lands may be

bottomed on” the Disputed Tract means that Mary Ruth waived her right of surface

access only if and while she was able to open wells on other lands that could be

bottomed on the Disputed Tract. Put another way, he argues that the phrase means

that if at any time she could no longer open wells on other lands that could be

bottomed on the Disputed Tract, the surface waiver would cease. But XTO argues

that the phrase is meant to reinforce the waiver, describing the only means of physical

intrusion of the Disputed Tract: via slant drilling from wells that bottom under the

Disputed Tract but that do not invade the surface.

Although the proviso “provided that” is not preferred because its meaning can

be unclear, “[u]sually, a proviso containing th[os]e words . . . before a sentence or

clause[] states an exception to the preceding sentence or clause.” Woods v.

VanDevender, 296 S.W.3d 275, 282 & n.2 (Tex. App.—Beaumont 2009, pet. denied).

According to Bryan Garner, “provided that” is disfavored because it “means too

many different things.” Bryan A. Garner, Garner’s Dictionary of Legal Usage 727 (3rd ed.

2011). The phrase “may create an exception, a limitation, a condition, or a mere

addition,” but it sometimes “is the functional equivalent of if.” Id. Both Black’s Law

Dictionary and Merriam-Webster’s give multiple meanings of the word “provided,”

including the conditional meaning urged by Crawford. Black’s defines “provided” as

13
(1) “On the condition or understanding (that),” (2) “Except (that),” and (3) “And.”

Black’s Law Dictionary 1420 (10th ed. 2014). And Merriam-Webster’s defines

“provided” as “on condition that: with the understanding: if only.” Webster’s Third

New Int’l Dictionary 1827 (2002). Thus, we cannot resolve the parties’ intent based

on common definitions alone.

However, the parties’ intent becomes clearer from reading the 1964 deed in its

entirety. As evidenced by the first reservation allowing street and utility access across

the TESCO Tract and the covenant that TESCO would not erect fences around the

TESCO Tract so long as the adjoining land remained undeveloped for residential

purposes, (1) TESCO was concerned about potential public access to––and surface

interference with––its electrical towers and (2) the parties contemplated the possibility

that Mary Ruth or a subsequent owner might subdivide the adjoining land for

residential purposes, thus increasing the possibility of unwanted public access to the

towers. To construe the deed to allow streets and utilities on the surface of the

Disputed Tract only so long as they were located a certain distance from TESCO’s

electrical towers––but then to later allow surface access for drilling and exploration at

an unknown time, at an unknown state of development of the adjacent property,

solely to facilitate the grantor’s desire to develop the Disputed Tract––is nonsensical.

Nothing indicates that the parties contemplated that TESCO’s concern about access

14
around its electrical towers 10 was subordinate to Mary Ruth’s ability to develop the

Disputed Tract via directional drilling, especially considering the parties’

contemplation of future residential development11 of the surrounding property.12

10
See Howard v. Jackson Elec. Co-op., Inc., 430 S.W.2d 689, 690 (Tex. App.––Waco
1968, writ ref’d n.r.e.) (arising from oil driller employee’s severe electric shock while
repairing truck attached to drilling rig); see also Bryant v. Gulf Oil Corp., 694 S.W.2d 443,
444–45 (Tex. App.––Amarillo 1985, writ ref’d n.r.e.) (arising from electric shock
during oil well repair); Copeland Well Serv., Inc. v. Shell Oil Co., 528 S.W.2d 317, 318
(Tex. App.––Tyler 1975, writ dism’d) (bringing wrongful death claim for electrocution
while working on oil well); Tyler v. McDaniel, 386 S.W.2d 552, 553–54 (Tex. App.––
Dallas 1965, writ ref’d n.r.e.) (involving electric shock while working on oil well);
Nance Expl. Co. v. Tex. Emp’rs Ins. Ass’n, 305 S.W.2d 621, 622 (Tex. App.––El Paso
1957, writ ref’d n.r.e.) (involving electric shock injury occurring during seismic work
on premises subject to oil-and-gas lease); cf. MCI Telecomm. Corp. v. Tex. Utils. Elec. Co.,
995 S.W.2d 647, 648–49 (Tex. 1999) (involving dispute in which utility company
claimed that laying of fiber optic cable around utility poles interfered with poles’
lateral support and caused them to lean); Stephens v. Tex. Elec. Serv. Co., 436 S.W.2d
572, 573 (Tex. App.––Eastland 1969, writ ref’d n.r.e.) (arising from electrocution of
worker installing goal posts at football stadium); Montez v. Bailey Cty. Elec. Co-op., 397
S.W.2d 108, 109 (Tex. App.––Amarillo 1965, writ ref’d n.r.e.) (arising from personal
injuries as a result of electric shock while drilling irrigation water wells).

“From the beginning of municipal regulation of oil and gas drilling
11

operations, municipalities have regularly restricted such operations to non-residential
zones.” Bruce M. Kramer, Local Land Use Regulation of Oil and Gas Development, 2008
No. 1 Rocky Mt. Min. L. Foun.-Inst. Paper No. 5 (2008).

That Mary Ruth would have been entitled to access the Disputed Tract from
12

wells drilled on adjoining land she owned via drainage––but would still have needed
TESCO’s permission to engage in directional drilling under the TESCO Tract––
reinforces this construction of the oil-and-gas reservation: the parties intended that
the only permitted physical intrusion of the TESCO Tract to access the Disputed
Tract was underneath the surface via a slant well. See Lightning Oil Co. v. Anadarko
E&P Onshore, LLC, 520 S.W.3d 39, 47 (Tex. 2017) (“[T]he surface owner owns and
controls the mass of earth undergirding the surface.”); Getty Oil Co. v. Jones, 470
S.W.2d 618, 621 (Tex. 1971) (acknowledging mineral lessee’s potential liability for

15
 Accordingly, we conclude that the context of the entire 1964 deed makes clear

that Mary Ruth did not intend to waive surface access to the Disputed Tract for only a

limited time, depending on her future ability to drill on adjoining lands; instead, the

construction of the oil-and-gas reservation in that deed that harmonizes all of its

provisions is that Mary Ruth did not intend for her absolute surface waiver for oil-

and-gas development and exploration purposes to waive any other right to explore

and develop from adjoining lands so long as she owned them. Without the ability to

access the Disputed Tract after conveying the adjoining lands, her interest was of little

to no practical value until almost twenty years later. See Green, 2018 WL 6565790, at

*5; Escondido Servs., 321 S.W.3d at 109 (“Having no access to the minerals under the

strip after the conveyance . . . , it is reasonable to presume that the Crouches intended

to include the strip in the conveyance.”).

Crawford raises no additional challenges to the application of the strip-and-

gore doctrine. 13 Thus, we hold that the trial court properly determined that the strip-

negligently and unnecessarily damaging the subsurface––as well as superadjacent
airspace––owned by the surface owner).
13
As part of his argument regarding construction of the 1964 deed surface
waiver, he argues that one of the rights Mary Ruth reserved was the right to hold onto
the Disputed Tract for future development. But as we explained in Green, once Mary
Ruth conveyed the adjacent property in 1984––the time at which we determine the
practical benefit to her of the Disputed Tract––she foreclosed the prospect of
immediate development; to not apply the presumption on the ground that she
retained a “future hope that one day [she] would benefit from that interest, either via
pooling or the advent of technology,” would go against Texas’s public policy that the

16
and-gore presumption applied to Mary Ruth’s 1984 conveyance and that Crawford

did not raise a fact issue in rebuttal; therefore, the trial court did not err by granting

XTO’s motion for summary judgment and denying Crawford’s motion for partial

summary judgment on the same issue. We overrule Crawford’s first and dipositive

issue.

Conclusion

Because we have overruled Crawford’s dispositive issue, we affirm the trial

court’s judgment.

/s/ Wade Birdwell

Wade Birdwell
Justice

Delivered: December 19, 2019

State’s natural resources should not only be conserved but developed. Green, 2018 WL
6565790, at *5 (citing Tex. Const. art. 16, § 59).

17