The History of Mineral Rights in Texas and California

The United States is the only country where below ground minerals such as oil and natural gas belongs to the surface owner who owns the land in fee simple. Fee Simple means the property owner is entitled to full rights to the surface, subsurface and the air above the surface.  In other countries, these subsurface minerals automatically belong to the government.

In understanding the history of mineral rights, it is appropriate to begin with the state of Texas which has immense mineral wealth.  When it was under Spanish and Mexican control, Texas originally owned all the subsurface minerals. A legislative act dated in 1837, stated “that no lands granted by this government shall be located on salt springs, gold or silver mines, copper or lead, or other minerals.”  In 1840, Texas adopted English common law relative to property rights.

The first dispute over mineral rights in Texas arose over salt.  In 1862, a joint resolution of the state legislature ordered the governor to take possession of a large salt deposit. Four years later, the constitutional convention pledged to return the salt rights to the surface owners.  The 1866 order was brought forward in the constitutions of 1869 and 1879.  In 1907, the first statutes providing for the surface to be sold and mineral rights kept became law.

The second salt dispute involved a man named Charles Howard.  Howard had filed claims on salt lakes in El Paso County.  This became a serious issue because people had been taking the salt for free prior to Howard’s claim. Howard began to charge a fee for the salt.  This angered the citizens and resulted in Howard, along with two others, being murdered in 1877.

In the early 1850’s, an area of more that 600 acres was granted to a gentleman.  It was later discovered to contain a salt spring near the Colorado River in central Texas. In 1855, a party of three men purchased the land from the owner.  After the land changed hands, three other men sued, claiming there was saline upon the land of which the defendants had wrongfully taken possession.  The plaintiffs claimed the defendants were manufacturing salt.  This alleged salt manufacturing was harming the plaintiffs.  Surprisingly, the court ruled for the plaintiffs saying that the grant was null and void because of the existence of the salt spring.  In 1862, the case was brought before the Texas Supreme Court resulting in the earlier verdict being overruled by the high court.  Had the Texas Supreme Court not overruled the verdict, a large part of Texas would eventually have belonged to the government.

Let’s shift our focus west to California.  The 1848 treaty by which Mexico formally surrendered its northern territories to the U.S. guaranteed that rights to property would be respected. The U.S. Congress passed the California Land Act of 1851 which set up a commission to make official decisions relating to private land claims.  These decisions were to be governed by "the laws, usages, and customs of the government from which the claims derived."

The next decade saw many lawsuits between surface owners and miners who were digging or wanted to dig for gold on agricultural lands. The courts upheld the state ownership of the minerals based on the Spanish law.  The Fremont family which had considerable land holdings continued to attempt to claim mineral rights but were unsuccessful. The state legislature favored mining interests and passed the Possessory Act in 1850.  The act allowed settlers to claim 160 acres of public land but not lands that contained mines or precious metals. An amendment to the act allowed prospecting on land already claimed by others.

After years of court hearings and decisions, the Fremont family received victory when the Supreme Court ruled in the landowners’ favor in the case of Boggy v. Mercer Mining Co.  Later, surface owner rights to subsurface minerals were reaffirmed by a 1955 Federal District court decision.

The United States has a very positive history relating to mineral rights.  Our history shows that citizens have had exclusive ownership more often than not.  This has ensured that wealth stays in the hands of citizens and not the government.