Understanding Adverse Possession: Part Two

In our second installment of “Understanding Adverse Possession,” we examine how timing affects claims of adverse possession: what is the difference between adversely possessing prior to severance, versus after severance has occurred? 

Possession Before Severance 

If suspected adverse possession takes place before an act of mineral severance, the use and possession of the surface alone for the relevant statutory period is sufficient to establish the claim as to the entirety of both the surface and mineral estates.  

Possession After Severance 

If suspected adverse possession takes place after a mineral severance, the use and possession of the surface alone is not enough to adversely possess the severed mineral estate.  Adverse possession of the surface will only include minerals which remain unsevered.  If the owner of the surface estate in a tract of land owns only 1/4 of the mineral estate, adverse possession of the surface would include a 1/4 mineral interest; if the record title surface owner does not own any interest in the mineral estate, adverse possession of the surface would not include any mineral interest.  An adversely-possessing party can claim only that which is owned by the party they possess against. 

Severance During Possession 

If an adverse party takes possession of the surface of a tract of land prior to a mineral severance, but a severance occurs between start of possession and perfection of the statutory time period, that severance could potentially interrupt and defeat the claim of adverse possession.  For example, if the record title owner executes an oil and gas lease during the period while another party possesses a tract of land, the execution of the lease alone is insufficient to interrupt the statutory possession period.  However, if production is obtained under the lease – if minerals are extracted and physically possessed by the record title party and not by the adverse possessor – the adverse possessor’s claim has been interrupted. 

Conversely, what if the severance is commenced by the suspected adverse possessor – what if the party in possession executes and oil and gas lease?  This type of severance will not interrupt the statutory period that the adverse possessor must satisfy. Clements v. Texas Co., 273 S.W.993 (Tex. Civ. App.—Galveston 1925, writ denied).   

In Part Three of this series, we will examine what a party must do to adversely possess a severed mineral estate. 

Kuiper Law Firm, PLLC specializes in oil and gas issues; if you have any questions about how the information in this article applies to you or your business, do not hesitate to contact us.

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