‘Sticks in the Bundle’
The Texas Constitution of 1866 gave landowners full rights to the minerals beneath their land. If you owned the land, you owned what was under it.
But that began to change with the Relinquishment Act of 1919, which split surface and mineral rights, paving the way for third parties to stake claims in what had always belonged to landowners.
Property rights are often described as a bundle of sticks, with each stick representing a distinct right — such as the right to groundwater or minerals or the ability to transfer or lease land.
Over time, the law has acknowledged that these rights can be separated: the mineral estate from the surface estate, and more recently, groundwater from the land itself. Now, questions are emerging about whether other elements — wind, carbon, pore space and geothermal energy — can also be severed from the surface estate.
Economic pressures are pushing landowners to part with more of their rights. In a volatile environment marked by market instability, severe weather and ever present demands of oil and gas operators, landowners are being squeezed. With fewer allies and plenty of vultures circling, it’s no wonder some have begun trading sticks from their bundle to survive.
Big business has been given the benefit of the doubt — and the power. Agriculture, meanwhile, has been pushed aside. Interests hungry for the value in natural resources are not only knocking at the door; they’re also being handed the keys.
Even when landowners do not willingly part with their rights, there are increasing efforts to strip them away.
Take Cactus Water Services LLC v. COG Operating LLC. In this case, the oil and gas operator argued that produced water — water extracted alongside oil and gas — belongs to them, as a waste product. But it began as groundwater, and groundwater belongs to the landowner. This is not a legal technicality — it’s a direct attack on property rights.
This isn’t an isolated case. As opportunities grow in water, solar, wind and minerals, so does the pressure to sign away landowner rights. And when landowners push back, the finger-pointing begins. We are accused of caring only because of the water’s value. But our concern begins the moment a resource is sold by someone who doesn’t own it.
Water is water. Whether it’s brine, brackish, produced or unpotable — if it was underground, it belongs to the landowner. The method of extraction doesn’t change ownership.
When the landowner won’t yield, industries often turn to the legislature or the courts, hoping to chip away rights through new laws or favorable rulings. Rights given away are rarely regained. Each stick lost from the bundle is a piece of landowner sovereignty eroded.
This is why landowners must stand firm.
We must be vigilant when negotiating with oil and gas companies or other entities, because the language in contracts can quietly sign away crucial rights. We need lawmakers to step up and protect the ownership of geothermal energy, pore space and other emerging resources before they’re taken.
Make no mistake — these interests won’t stop. They will keep carving, stick by stick, until what is left is a hollow shell of ownership.
In a time when ranchers and landowners are fighting for survival, we cannot afford to let these future revenue streams be stolen from under us.
And, most importantly, we cannot let others take what is ours simply for the sake of progress. It’s not progress to steal from landowners so others can line their pockets.
Brian McLaughlin, a director for Texas & Southwestern Cattle Raisers Association, is a partner in the law firm of Kerr & McLaughlin PLLC in Midland.
'As opportunities grow in water, solar, wind and minerals, so does the pressure to sign away landowner rights.'
