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Gerrity Oil & Gas Corp. v. Magness9/15/1997
uch use does not preclude exercise of the lessee's privilege.
The fact that neither the surface owner nor the severed mineral rights holder has any absolute right to exclude the other from the surface may create tension between competing surface uses. "The broad principle by which these tensions are to be resolved is that each owner must have due regard for the rights of the other in making use of the estate in question." Grynberg v. City of Northglenn, 739 P.2d 230, 234 (Colo. 1987). This "due regard" concept requires mineral rights holders to accommodate surface owners to the fullest extent possible consistent with their right to develop the mineral estate. See Getty Oil Co. v. Jones, 470 S.W.2d 618, 622 (Tex. 1971). How much accommodation is necessary will, of course, vary depending on surface uses and on the alternatives available to the mineral rights holder for exploitation of the underlying mineral estate. However, when the operations of a lessee or other holder of mineral rights would preclude or impair uses by the surface owner, and when reasonable alternatives are available to the lessee, the doctrine of reasonable surface use requires the lessee to adopt an alternative means. See 6 American Law of Mining 200.02 (Rocky Mountain Mineral Law Foundation ed, 1996).
Because a mineral rights holder is legally privileged to make such use of the surface as is reasonable and necessary to develop underlying minerals, a trespass occurs at the point when the holder exceeds the scope of that implied easement and thereby exceeds the legal authorization permitting mineral development activities. See Visintainer Sheep Co. v. Centennial Gold Corp., 748 P.2d 358, 360 (Colo. App. 1987) (because mineral claimant was legally authorized to enter land owned by another to prospect for minerals, its entry and staking of mining claims could not be a trespass); Restatement (Second) of Torts 214(2) (1965) (stating that one privileged to enter land who thereafter commits a tort "is subject to liability only for such tortious act," and not for his original entry); Thompson on Real Property 68.02(b) (David A. Thomas, ed., 1994) ("One who enters with license, authority, or consent, but who then exceeds the limits of that permission, may commit a trespass."); see also Richard J. Denny, Jeanmarie B. Tade & Cynthia J. Thomson, Contamination from Oil and Gas Production: Who Pays for Cleanup?, 36 Rocky Mtn. Min. L. Inst. 6-1 at 6-32 (1990) ("Any intentional use of another's real property without authorization and without a privilege by law to do so is actionable as a trespass without regard to harm.") (emphasis added). In determining whether the scope of an easement or privilege has been exceeded, a court must look to its nature and purpose. See Bijou, 804 P.2d at 183. Because the scope of a mineral rights holder's implied easement is defined in terms of reasonableness and necessity, the reasonableness of the holder's conduct is not only relevant, but is essential to any resolution of a trespass claim. Until it is found that the lessee's conduct was not reasonable and necessary for the exploration or extraction of the minerals, a cause of action for trespass must fail.
Given these principles, the trial court did not err in concluding that a claim of trespass against a lessee based on the lessee's alleged excessive surface use requires the court to consider the reasonableness, as well as the necessity, of the lessee's actions. If a privilege to enter the property of another is defined in terms of reasonableness, trespass may only occur when the holder of the privilege acts unreasonably or unnecessarily. See Magliocco v. Olson, 762 P.2d 681, 685 (Colo. App. 1987) (where landlord-tenant lease permitted land
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