St. Mary's Law Journal


David A. Scott


Total abandonment of the surface destruction test is essential for achieving mineral title certainty in Texas. Many instruments which grant or reserve mineral rights in Texas contain the words “other minerals.” When the instrument does not specifically list which substances the contracting parties include as minerals, a dispute often arises as to ownership of the unspecified substances. To resolve ownership disputes, Texas courts adopted the surface destruction test. This test focuses on the destructive effects removal of a particular substance would have on the surface of the land. Unfortunately, the surface destruction test yielded unpredictable results, causing uncertainty in mineral titles. In Moser v. United States Steel Corp., the Supreme Court of Texas devised the ordinary and natural meaning test to stabilize the mineral title uncertainty caused by the surface destruction test. Unfortunately, the surface destruction test became further entrenched after the second Moser v. United States Steel Corp. (Moser II) opinion. In Moser II, the Supreme Court of Texas announced the ordinary meaning test is “to be applied only prospectively from June 8, 1983.” The word “prospectively” created a chronological division in Texas mineral ownership. Specifically, Moser II meant the ordinary and natural meaning test will only apply to cases which meet the requirements set out in Moser II. Thus, the surface destruction test will continue to apply in cases which cannot meet these requirements. Further, the Schwarz v. State and Friedman v. Texaco, Inc. decisions guarantee the surface destruction test survives after the Moser opinions. Consequently, the ordinary meaning test will have a very limited impact on Texas mineral ownership law. The Supreme Court of Texas should strive to dissolve these divisions while remembering title certainty lies in expanding the ordinary meaning test and abandoning the surface destruction test.


St. Mary's University School of Law