By Ethan Dupree
Introduction
Across the United States, sellers of land want to keep an interest in the minerals beneath the surface. In Louisiana, this is done through reserving a mineral servitude on the seller’s old land.[1] When a seller of land reserves a mineral servitude but does not specify their surface rights, an issue arises as to the existence or extent of those rights. An amendment to Louisiana Mineral Code article 11 made it mandatory that a seller explicitly reserve their surface rights when reserving a mineral right.[2] Neither the Louisiana legislature nor the courts have addressed the ramifications of violating Louisiana Mineral Code article 11, where a seller reserves a mineral right and fails to mention surface rights.
If a landowner sells a tract of land while reserving a mineral servitude but fails to specify any surface rights, as required by Louisiana Mineral Code article 11, three potential remedies may apply.[3] First, the act of sale could be interpreted in the most literal way and not grant surface rights to the mineral servitude owner, which is a “no surface rights” remedy.[4] Second, a court could nullify the entire agreement or provision, a “nullity” remedy.[5] Third, the mineral servitude holder could be granted the right to use the surface as reasonably necessary to use the servitude.[6] The “reasonably necessary” remedy gives the mineral servitude holder a limited surface right for conducting operations.[7]
A. Louisiana Mineral Code Article 11
The original Louisiana Mineral Code article 11 that governed the relationship between landowners and mineral interest holders stated:
The owner of land burdened by a mineral right or rights and the owner of a mineral right must exercise their respective rights with reasonable regard for those of the other. Similarly the owners of separate mineral rights in the same land must exercise their respective rights with reasonable regard for the rights of other owners.[8]
Section A of Louisiana Mineral Code article 11 gives the landowner and the owner of a mineral right concurrent use of the property.[9] The surface rights holder must deliver the property and do nothing to disrupt the mineral rights holder’s actions, and the mineral rights holder must act in good faith.[10] In 2006, Louisiana Mineral Code article 11 was amended to add:
B. (1) A reservation of mineral rights in an instrument transferring ownership of land must include mention of surface rights in the exercise of the mineral rights reserved, if not otherwise expressly provided by the parties.
(2) In the absence of particular provisions in the instrument regulating the extent, location and nature of the rights of the mineral owner to conduct operations on the property, the requirements of this Subsection are satisfied by inclusion of the following language in the reservation of mineral rights: “The transferor (Seller) shall exercise the mineral rights herein reserved with reasonable regard to the rights of the landowner, and shall use only so much of the land, including the surface, as is reasonably necessary to conduct his operations. Such exercise of mineral rights shall be subject to the provisions of Articles 11 and 22 of the Louisiana Mineral Code. The transferee (Buyer) recognizes that by virtue of the mineral reservation herein made, the mineral owner shall have the right to use so much of the land, including the surface, as is reasonably necessary to explore for, mine and produce the minerals.”[11]
The 2006 amendment to Louisiana Mineral Code article 11 made it mandatory for a seller reserving a mineral right to reserve surface rights.[12] While the amendment seems simple, there is no provision providing a clear remedy if there is a failure to reserve surface rights.[13]
B. Potential remedies
The “no surface rights” remedy offers the first possible remedy to a violation of Louisiana Mineral Code article 11. This remedy represents the harshest reading of Louisiana Mineral Code article 11 from the point of view of the mineral servitude holder. Based on Louisiana Civil Code article 2046, if the contract is clear, explicit, and does not lead to absurd consequences, the interpretation is over.[14] In the case of a clear and explicit reservation of a mineral servitude without mention of surface rights, if a court determines that the mineral servitude holder’s lack of surface rights would not lead to an absurd or unreasonable result, the court may uphold the interpretation that no surface rights are granted.[15] There would be some use of this mineral servitude by the original landowner. First, the mineral interest holder could drill at an angle to get to their minerals while on the surface of an adjacent tract of land. Second, a third party drilling on an adjacent tract could pay the mineral interest holder if they are pooling minerals from an adjacent tract.
In contract law, courts tend to interpret contract terms in favor of the party who did not create the contract.[16] Therefore, if a term is missing from the contract, the responsibility for that omission falls on the party who drafted the contract.[17] Generally, this would mean the contract should be interpreted in favor of the buyer, supporting the no surface rights remedy.
This remedy could also put attorneys on alert to make sure to explicitly reserve surface rights, limiting this type of litigation in the future. An attorney drafting a mineral reservation without mention of surface rights could open themselves up to malpractice issues.
A policy consideration against the no surface rights remedy would be to have as many minerals in the economy as possible to keep prices low for consumers and boost the Louisiana economy. The new landowner would be unable to mine their land, and the mineral servitude owner would be unable to mine the surface of the land. The only potential buyer for the mineral interest would be the new landowner. However, there is no incentive for the new landowner to buy that interest because the mineral rights will revert to the new landowner 10 years after the original sale due to the prescription of non-use.[18] The minerals would be effectively locked up for at least 10 years in this situation.[19]
The second possible remedy would be to nullify the agreement and put the parties back in their original position.[20] A factor that would significantly affect the court’s decision on whether to nullify the agreement would be how “impractical” nullification would be as compared to an award of damages.[21] In analyzing impracticality, the court would consider how long ago the sale happened relative to the litigation. The closer in time the sale and litigation are, the more likely a court will nullify the contract. If the litigation arose just before the extinction of the mineral servitude due to non-use, a court would be less likely to nullify the agreement because this would greatly burden both parties.[22] That being said, nullity is the most problematic remedy because neither party is likely to be satisfied, which could set a problematic precedent.
A court could reasonably find that the best remedy would be the former rule of giving the mineral servitude holder access to the surface area as reasonably necessary.[23] This solution would undermine the current version of Louisiana Mineral Code article 11(B).[24] If the former rule still applies, then the 2006 Mineral Code amendments would be rendered useless. This rule would also be more favorable to the seller, possibly conflicting with Louisiana Civil Code article 2056, where, in the case of doubt, the court would interpret the contract against the party who furnished the contract.[25] Ideally, Louisiana attorneys will be educated on the issue, make the easy change, and specify surface rights in these instances.
The Louisiana Legislature should amend Louisiana Mineral Code article 11 to clarify the outcome when surface rights are not explicitly reserved. This would increase consistency in mineral rights litigation.
Copyright 2025, by Ethan Dupree.
[1] Frost-Johnson Lumber Co. v. Salling’s Heirs, 91 So. 207, 209 (La. 1920).
[2] La. Rev. Stat. § 31:11 (2025).
[3] Id.
[4] La. Civ. Code art. 2046 (2025).
[5] Id. art. 2033.
[6] See La. Rev. Stat. § 31:22; see also Leger v. Petroleum Eng’rs, Inc., 499 So. 2d 953, 955 (La. Ct. App. 3d Cir. 1986).
[7] See La. Rev. Stat. § 31:22; see also Leger, 499 So. 2d at 955.
[8] La. Rev. Stat. § 31:11 (2006).
[9] La. Rev. Stat. Ann. § 31:11 cmt. (2006); see generally Bundrick v. Anadarko Petroleum Corp., 159 So. 3d 1137, 1143 (La. Ct. App. 3d Cir. 2015).
[10] La. Rev. Stat. Ann. § 31:11 cmt. (2006); Bundrick, 159 So. 3d at 1143.
[11] La. Rev. Stat. § 31:11 (2025).
[12] Id.
[13] See id.
[14] La. Civ. Code art. 2046 (2025).
[15] Id.
[16] Id. arts. 2057, 2056; Butler v. Crescent Land Dev. Co. Inc., 499 So. 2d 1163, 1166 (La. Ct. App. 5th Cir. 1986).
[17] La. Civ. Code arts. 2057, 2056; Butler, 499 So. 2d at 1166.
[18] La. Rev. Stat. § 31:27 (2025).
[19] See id.
[20] La. Civ. Code art. 2033.
[21] See id.
[22] In Robinson, the court was dealing with a null construction contract. The court found that putting the parties back in their original position was impractical because the house was nearly complete. Robinson shows that courts consider the burden of the parties when deciding between restoration and damages as a remedy. See Robinson v. Papania, 368 So. 3d 74 (La. Ct. App. 1st Cir. 2023). See also La. Civ. Code art. 2033.
[23] La. Rev. Stat. § 31:11 (2006).
[24] See La. Rev. Stat. § 31:11 (2025).
[25] La. Civ. Code art. 2056.
