## Facts

- Surface owners operated an 8,500-acre ranch with a commercial hunting business and cattle operations; hunting depended on recurring low-altitude helicopter use for wildlife surveys and whitetail deer capture.
- A mineral owner leased part of the mineral estate to an operator covering roughly 3,000 acres.
- The operator drilled nine producing wells and planned substantial additional drilling and production infrastructure.
- To power pumpjacks, the operator proposed installing a grid of overhead electrical distribution lines across the ranch.
- The surface owners refused to grant an easement, asserting the overhead lines would create dangerous obstructions that would substantially impair or effectively end helicopter operations central to the hunting business.
- The surface owners asserted the operator had feasible alternatives to overhead lines, including using produced natural gas to run gas-powered engines for pumpjacks.

## Issues

1. Whether legally and factually sufficient evidence supported a finding that the proposed overhead power lines would completely preclude or substantially impair the surface owners’ existing helicopter-dependent ranch use.
2. Whether legally and factually sufficient evidence supported a finding that the surface owners had no reasonable alternative method to continue their existing use if overhead lines were installed.
3. Whether legally and factually sufficient evidence supported a finding that the mineral lessee had a reasonable, customary, and industry-accepted alternative method to develop/produce the minerals without overhead lines.
4. Whether the trial court properly awarded attorney’s fees and made discretionary evidentiary rulings.

## Decision

- The appellate court affirmed the judgment for the surface owners.
- The evidence supported the jury’s findings on all three accommodation-doctrine elements: substantial impairment of an existing surface use, no reasonable surface-owner alternative, and a reasonable industry-accepted mineral-development alternative (gas-powered systems).
- The court upheld declaratory relief barring installation of the proposed overhead power lines.
- The court affirmed the attorney’s fee award and found no reversible error in the challenged evidentiary rulings.

## Legal Principles

- Under Texas’s accommodation doctrine, a mineral lessee’s implied right to use the surface is limited when the lessee’s proposed use would completely preclude or substantially impair an existing surface use.
- To obtain relief, the surface owner must prove: (1) substantial impairment of an existing use, (2) no reasonable alternative to continue that use, and (3) the lessee has a reasonable alternative method to develop/produce the minerals that is reasonable, customary, and industry-accepted.
- An alternative for the mineral lessee need not be the preferred or least expensive method; it must be reasonable and accepted in the industry while permitting continuation of the surface owner’s existing use.
- A prevailing party obtaining declaratory relief may recover reasonable and necessary attorney’s fees under the Texas Declaratory Judgments Act, subject to the trial court’s discretion.

## Conclusion

The court held that overhead power lines could be barred under the accommodation doctrine where they would substantially impair an established helicopter-based hunting operation, the surface owners lacked reasonable substitutes for that use, and the mineral lessee had an industry-accepted alternative (gas power) that would allow mineral development without the impairment.


VirTex Operating Co. v. Bauerle, No. 04-16-00549-CV, 2017 WL 5162546 (Tex. App.—San Antonio Nov. 8, 2017)