## Facts

- Ivan H. and Shirley I. Kerbaugh owned about 1,000 acres of surface land in Williams County, North Dakota; the mineral estate was severed and leased to Hunt Oil Company and Williams Oil Company.
- The oil companies sought to conduct seismic (geophysical) exploration on the Kerbaughs’ land under the mineral leases.
- The Kerbaughs refused entry, citing past surface impacts from earlier seismic activity, including reduced spring flow and unfilled holes, and asserting a risk of further crop and property damage.
- The companies offered compensation and proposed entry conditions, but the Kerbaughs continued to object and directed seismic crews to leave when they entered.
- The companies sued to enjoin the Kerbaughs from interfering with exploration; the trial court issued an ex parte temporary injunction and later entered a permanent injunction.

## Issues

1. Whether mineral lessees have an unlimited implied right to use the surface for seismic exploration, or only a right limited to uses reasonably necessary for mineral exploration and development exercised with due regard for surface owners.
2. Whether the evidentiary record and procedural requirements supported injunctive relief restraining the surface owners from interfering with seismic operations, including compliance with injunction-bond requirements.

## Decision

- The North Dakota Supreme Court conditionally affirmed the permanent injunction permitting the companies to proceed with seismic exploration.
- The court held the mineral estate is dominant and carries implied surface-use rights, but those rights are not unlimited.
- The court emphasized surface use must be reasonably necessary and exercised with due regard for the surface owners’ rights, and may not be negligent or wanton.
- The court concluded the surface owners had not shown the proposed seismic work exceeded reasonably necessary exploration or that substantially less-intrusive alternatives were available on this record.
- The case was remanded to correct procedural deficiencies related to the injunction bond and protective requirements.

## Legal Principles

- When the mineral estate is severed from the surface estate, the mineral estate is dominant and includes implied rights to use the surface to explore for and develop minerals.
- Implied surface-use rights are limited to the amount of surface and the manner of use that are reasonably necessary to explore, develop, and transport the minerals.
- The mineral owner or lessee must exercise surface-use rights with due regard for the surface owner and may not use more of the surface than reasonably necessary.
- Dominance of the mineral estate does not confer absolute control of the surface; excessive, negligent, or wanton surface use is not permitted.
- The decision did not resolve whether a mineral lessee is liable for damages arising from reasonably necessary surface use incident to mineral operations.

## Conclusion

The court allowed mineral lessees to conduct seismic exploration over the surface owners’ objection because the mineral estate carries implied, reasonably necessary surface-use rights, but it limited those rights by a due-regard standard and required correction of injunction-bond procedures while leaving potential damage liability questions for another case.


Hunt Oil Co. v. Kerbaugh, 283 N.W.2d 131 (N.D. 1979)