## In the Court of Appeals Second Appellate District of Texas at Fort Worth

_______ ____________________ No. 02

- 18

- 00217

- CV

_

_____ ______ _______________

On Appeal from t he 96 th Dis trict Court Tarrant County, Texas Trial Court No. 096

- 262638

- 12
Before Kerr, Birdwell, and Bassel, JJ. Memorandum Opi nion by Justice Birdwell



### R ICHARD 

### D. C RAWFORD 

### , Appellant

V


### . XTO E NERGY 

### , I NC



### . , Appellee2 MEMORANDUM OPINION
Introduction
This appeal involves anothe r title and contract dispute that appears to have

re sulted from the “ frenzy to lease a s many mineral rights as possible ” 1 in the Barnett
Shale

. See , e.g. , Green v. Chesap eake Expl., L.L.C. , No. 02

- 17

- 00405

- CV, 2018 WL 6565790, at * 1

– 2 (Tex. App.

— Fort Worth Dec. 13, 2018, no pet.) ( mem. op.)

. Richard D. Craw ford, t he lessor under an oil

- and

- gas lease with XTO En ergy , Inc. , sued XTO after it d etermined he was not t he o wner o f t he oi l and gas it had leased
and refused to pay him royalties

. T h e t rial court gran t ed summary judgment for XTO
on all of Cr awford ’ s cl aims aft er determining t hat under the strip

- and

- gore doctrine , Cr aw ford ’ s predecessor had divested her owners hip of th e oil and gas in 1984 ; thus,
neither Craw ford nor his predecessor could have validly l eased the oil and gas , and
Crawford was not entitled to roya l t i es . T h e trial court al so denied a competing motio n for partial summary judgment filed by Crawford. B ecause w e agree wit h t he trial court
that the strip

- and

- gore presumption applies as a matter o f law, and that Crawford ’ s predecessor thus did not retain her interest in the oil and gas when conveying the surrounding property in 1984 , we affirm.

1 J. Zach Burt, P laying the “ Wild C ard ” in the High

- Stakes Game of Urban D rilling: Unconscionability in the Early Barnett Shale Gas Leases , 15 T ex . Wes leyan L. R ev . 1, 8 (2009) (explaining the rise of urban le asing techniques , in which i ndependen t landmen must comp ete to o btain l eases from as many small landow ners as possible in urban areas)

.3 B ackground
T h e pa r tie s relie d on the following stipulated facts in their c ompeting motions for summary judgment. In 1963, Mary Ruth Crawford beca me th e ow n er of 145.99

acre s in Tarrant County, Texas , through a partition deed

. In 1964, Mary Ruth
conveye d to Texas Electric Se rvice Comp any (TESCO) th e s urface of 8.235 acres ( the
TESCO Trac t ) of her lar ger tract
. T h e deed ackn o wledged t hat . 0 93 of an acre of the
TE SCO Tract w as located in a county road

. T he deed a lso conta ined two reservat ions
of rights t o Mary Ruth and one cove nant by TESCO 2 : Grantors reserve unto themselv es, [and] their hei rs and assigns, the right to open stre e ts over and across the [ TESCO Tract] to constru ct, o r cause to be constructed, water lines, sewer lines, gas lin es [ ,] and telephone lines thereon; provi ded ( 1 ) that such streets shall not be closer th a n 300 feet apart, and shall b e located so that the out e r boundary there o f will not be less than 25 feet from any then

- existing steel tower supporting any electric lin e the re on, (2) that such streets and uti l ity lines shall not cross the lands herein con v e ye d at an angle of less than 45 degrees to the near sid e , (3) that such utility lines shall not interfer e with Grantee ’ s ins t allations on such p r operty at the time such u tility l ines are constructed, and (4) that such streets s hall be construct e d and mai ntained, i n c l u d i ng grading, surfacing , cur bs [,] and gutters, at no cost or expense to Grantee.
Grantor s reserve unto themselves, [and] their heirs and assigns , the right to all oil and gas in and under the lan ds herein conv eyed [ ( the Disputed Tract ) ] but expre ssly waive all rights of ingre ss and egress for the purpose of drilli ng fo r or producing oil and/or gas from the surface of the [ TESCO Tract ] provided that wells opened o n other lands may be bottome d on [ t he TESCO Tract ]

.

2 Because the wo rdi ng of the se c lauses in comparison to ea ch ot her is critical to our analysis, we rep roduce t he m verba ti m . We retain the deed ’ s plural usage of Gran t ors even th ough Mary Ruth was the sol e g rantor.4 Grantee agrees that as long as Grantors ’ adjoin ing p roperty is used for grazing or fa rming purposes, Grantee will erect no fen ce s or o ther barriers along the lines dividing Grantor s’ property and the p roperty herein conveyed ; provided, h o wever, that this agreement shall te rminate shoul d Grantors ’ adjoining property be subdivided for reside ntial purposes. [Emph as is added.]
Th is picture show s the boundaries of the TESCO Tract and Disputed Tract in
relation to the su rrounding land :

Aft er a cquiring t he TESCO Tract, TESC O placed steel electric towers along its

e ntire le ngth

. In 198 4, Mary Ruth conveyed 76 ac res of her adjoining land to the north and
south of the TESCO Tract and Disputed Tr act to a third part y without reser ving a ny of the oil and gas t hereunder or mentioning her previously reserved right to the5 Disputed T ract
. 3 Ov er twenty years later, i n 2007, Hollis R. Sullivan, Inc. leased the Disputed Tract from Mar y Ruth. The l ease allows the lessee to pool the Disputed
Tract wit h o ther le ased lands and gene rally prohibits surface operation s, restrict ing development of the oil and gas to pooling “ and/or . . . directional or horizontal drilling commenced f r om a sur face location on other lands in such manner that the path of the wellbore is u nder and through the leased premise s and the bottom

- hole or terminus is on the leased premises or lands po oled therewith. ” Mary Ruth died late r in 2007, and Crawfor d i nherited her estate

. Crawford
ratified the Sullivan l ease in April 2009 ; by that time, XT O had acquired the lessee ’ s interest

. XTO or its predecessor had also acqu ired oil and gas leases fro m all of the
min er a l estate owners on bo th sides of the Disputed Tract

. In May 200 9, XTO poole d almost 800 leases, including Craw ford ’ s , into the Eden Sout hwest Unit.
Since 2 009 XTO has completed and sol d production f r o m four wells in th e Eden Southwest Unit

. But XTO has never paid Crawford any royalties unde r the
Sullivan lease bec a u se i n 201 1, after rec eiving a title opinion on the D isputed Tract, 4

3 T he parties agree that afte r this conveyance, M ary Ruth o wned no ot her surface or mineral rights adjoining the Disputed Tract

.
4 See Rob Davis, A Landman ’ s Work is t he Foundation for Accurately Determining Mineral Ownershi p Under Rights

- of

- Way: So, How Should a Landman Se arch for Roa dway Title? , 18 Tex. Wes leyan L. Rev. 39, 40 , 43 (2011) ( de scribing role of landmen in researching miner a l estate ownership , assert ing that a pr oper pre

- lea sing ownership determination requ ires not only the landman ’ s titl e search but also an attorney ’ s tit le
e xamination and written opi n i on , and describing three ty pes of title opin ions: le as e purchase opinion s created befo re a bon us is paid, dri lli ng title opin ions created before6 XTO d et ermined t hat Mary Ruth ’ s 1984 conveyance of the adjoining lands also
divested her title t o the D i sputed Tract un d e r the strip

- and

- gore doctrine. 5
Crawford sued XTO f or breach of th e lea se, conversion, removal of a cloud on title, “ money had and received, ” a nd for declaratory relief. XTO f iled its own countersuit, which it later non suited. After appeals o n un relat ed proc edu ral grounds and a remand to the trial court, 6 XTO sought traditional summary judgment on all of Crawford ’s claims, arguing that
the st r ip

- and

- gore doctrine applies as a matter of law; therefore, Crawford ’s claims , which a re a ll based on his alle ged property ownersh i p , fa il. Craw ford filed a response to XTO ’ s motion for summary judgment but also filed a traditional and no

- e v idence
motion for par tial summary judgment contending the strip

- and

- gore doctrine does

drilling begins, and divis ion order title op in ions ) ; Paul G . Yale, To W a ive or Not to Waive? Analy zing Oil an d Gas Title O p inion R equireme nts , Landman at 23, 25 (N ov./Dec. 2009) ( “ It i s increasingly common for companies dri lling wells in the Barnett Shale, where units can include hundreds of town lo ts, to instruct their title examine rs to limit review of document s to a point in time forward from when the urban subdi visions were platted

. This increases title risk significa ntl y but for some companies the risk is justified by an increase in timesavings and a decrease in abstracting and t itle examination costs. ” ).

5 XT O admits in its brie fing that its predecessor obtained leases from both Ma r y Ruth and those in the ch ain of tit le from her 1984 conveyance. As XTO described the process, “ It was truly a belt and suspenders appr oach. After a we ll was drilled and ther e was p roduc tion, XTO had to de cide who owned the mineral s un der the narrow strip of land beneath the electr ic company ’ s lines and facilities and who was entitled to receive the royalty payme nts. ”

6 See Craw ford v. X TO Energy, Inc. , 5 09 S.W.3d 906, 90 8, 914 (Tex. 2017).7 not apply as a matter of law because the re is no evidence that the Disputed Tract

cease d to benefit Mary Ruth after her 1984 c onveyance . In response to Craw for d ’ s motion for partial summ ary judgment, XTO filed an
affidavit from engineer C ary McGregor purporting to be an ex pert opi n ion on the
monetary value of the Disputed Tract in 1984

. Crawford object ed to the affidavit and
moved to s trike it on timelines s and admissibility grounds , amon g oth ers, but the trial

court ov erruled his objections and refused to str ike the affi davit

. After hearing argument , t he trial court granted XTO ’ s motion for summary judgment , denied Craw f or d ’ s , a nd rende red a final judgment for XTO

. Iss ues on Appeal
Craw fo rd ’ s fi rst issue pres ent s a question of law : Did the trial court err by determining as a matter of law that under the strip

- and

- gore doctrine, Mary R u th’s 1984 conveyance of the rem aining adja cent land also convey ed the Disputed Tract ? In
his secon d issue, Cra wford contends that the trial court erred by deny ing his motion

to strike the McGregor affidavit. And his remaining third thro ugh six t h issues ra i se complain ts conti ng ent upon his prevailing in hi s first issue. Because we conclude t hat
the trial cour t coul d have properly granted XTO ’ s motion for summary judgment even without considering the McGregor affidavit, we address Craw for d ’ s first issue only

. See Tex. R. App. P. 47.1 ; Reynolds v. Murphy , 188 S.W .3d 252, 259 (Tex. App.

–– Fort Wo rth 2006, pet. den ie d) (op. on reh ’ g) ( declining to address prop riety of trial

court ’ s ruling on nonmovan t ’ s obj ections to movan t ’ s sum mary judgment evidence8 because , even if court of a ppeals disregard ed th at evidence, appellant did not raise fact
issue )

. Standard o f Re view
W e review a s ummary judgment de novo. Travelers Ins. Co. v. Joachim , 315 S.W.3d 860, 86 2 (Tex. 2010). We consider the evidence presented in the light mo st favorable to the nonmovant, cre ditin g evi dence favorable to the non movant if reasonable jurors c ould, and disregar ding e vidence contrary to the nonmovant unless reasonable jurors could not

. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289
S.W .3d 844, 848 (Tex. 2009). We indul ge ev ery r easonable inference and re solve any
doubts in the nonmo vant ’ s favor. 2080 1, Inc . v. Parker , 249 S.W.3d 392, 399 (Tex. 2008). A plaintiff is entitle d to summary judgment on a cause of action if it conclusively pro ves all esse n tial elements of the claim

. See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones , 710 S.W.2d 59, 60 (Tex . 1986 ). A defendant who conclusively negates at least one essential eleme nt of a cause of action is entitled to summary judgment on that c laim. Frost N at ’ l Bank v. Fernande z , 31 5 S.W .3d 494, 508 (Tex. 2010) ;

see Tex. R. Civ. P. 166a(b), (c). W hen both par ties m ove for summary judgment and
the trial court grants one motion and denies the other, the reviewing court should review both parties ’ summary judg m ent evidence, determi ne al l que stions presented,
and rend er the judgment that the tria l cour t should hav e rend ered. See Myrad Props.,9 Inc. v. LaSalle Bank Nat ’ l Ass ’ n , 300 S.W.3d 746, 753 (Tex. 2009); Mann Frankfort , 289
S.W.3d at 848.
St rip

- A nd

- Gore D oct r ine Applies A nd C raw f ord D id N ot Rebut I t ; Mary Ruth Conveyed the Disputed Tract in 19 84
T h e q uesti on of law raised in Cr aw ford ’ s firs t issue is common to the par ties ’ competing motions for summary judgment

. Applicable Law
We have recently described a n d applied the strip

- a nd

- gore doctrine

–– a long

st anding, policy

- driven presumption empl oyed t o discourage litigation and tit le disputes

–– in a similar circumstance : Our objective when construing a deed is to give effect to the grantor ’ s expressed intent in t he deed ’ s language. S ee Lane Bank Equip. Co. v. Smith S. Equip., Inc

. , 10 S.W.3d 308, 321 (T ex. 2000). The strip

- and

- gore d octrine is used to aid in determining a grantor ’ s intent

–– not as to the land described in the deed itself, but as to adjoining land n ot referenced in the deed. Strayhorn v. Jones , 300 S.W.2d 623, 638 ( Te x. 1957) (holdin g that the doctrine a pplie s only when a description of the specific strip is not included in the field notes of the adjoining land ’ s conveyance; otherwise, there would b e no need to employ a rule of construction or presumption); see Angel o v. Biscamp , 441 S.W.2d 524, 527 (Tex. 1969 ); Cantley v. Gulf Prod. C o. , 143 S.W.2d 912, 915 ( Tex. 1940); Red Boot Prod. Co. v. Samson Expl., LLC , No. 09

- 14

- 00191

- CV, 2015 WL 5730789, at *5 (Tex. App.

— Beaumon t Oct. 1, 2015, no pet.) (mem. op.); Escondido Se rvs., LLC v. VKM Holdi ngs, LP , 321 S. W.3d 102, 109 (T ex. App.

–– Eastl and 2010, no pet.); Glove r v. Union Pac. R.R. , 187 S.W.3d 201, 212 (Tex. App.

–– Texarkana 2006, pet. denied); Alkas v. United Sav. Ass ’ n of Tex. , 672 S.W.2d 852, 857 (Tex. App.

–– Corpus Ch ri sti 1984, writ r ef ’ d
n .r.e.); Pebswor th v. Behringer , 551 S.W.2d 501 , 503

– 04 (Tex. Civ. App.

– – Waco 1977, no writ); see also Snoddy v. Bolen , 25 S.W. 932, 934 (Mo. 1894) (“In the vast ma j ority of cases the ru le works out the real intention of the parties at the date of the deed. ”); 23 Am. Jur. 2d D eeds § 254 (“It is presume d that a party granting l and does not intend to retain a narrow10 strip between the land sold and the boundary line in t he absence of express provision to that effect in the deed, especial ly where the strip is
so narrow as to b e of no practica l use to the gr antor . This presumption .

. . is, however, rebuttable, the question being purely one of intention ; and when the inten t ion is ascertainable from the face of the instrument or a record, ot he r evidence is no t admi ssible.” (empha ses a dded) (foot notes omitted) ) . The strip

- and

- g ore doctr ine applies when it appears that a grantor has conveyed all land owned by him adjoining a n arrow strip of land t hat has ceased to be of any benefit or importan ce to him[;] the p resump tion is that th e gra ntor intend ed to include [ that] strip in [the] convey ance[ ] unless it clearly appears in the deed, by plain and specific language, that the gr a ntor intended to rese rve the strip. Crawford [] , 5 09 S.W.3d [at] 909 [] (quoting Cant l ey , 143 S. W.2d at 915). Application of the strip

- and

- gore doctrine is highly policy

- driven: it discourages title disputes and prolonged litigation

–– providing certainty i n land titles

–– and en courages the use and d evelopment of real property. See Ange lo , 4 4 1 S.W.2 d a t 526

– 27 (empha sizing that doctrine applies when adjoining land ceases to benefit or be important to grantor upon conveyance of land described in deed); Cantle y , 143 S.W.2d at 915; see also Johnson v. Ar nold , 18 S.E. 370, 372 (Ga. 1893) (“I n the main, t he fee in such pro perty under such detached ownership would be and forever continue unproductive and valueless.”). Courts have applied the strip

and

- gore doctrine ’ s presumption to mine ral interests. See E sc ondido Servs. , 321 S.W.3d at 107

– 09; Glove r , 187 S .W. 3d at 212

– 13; R eagan v. Marathon Oil Co. , 50 S.W.3d 70, 80

– 81 (Tex. App.

–– Waco 2001, no pet.); Krenek v. Texstar N. Am. , 787 S.W.2d 566, 568

– 69 (Tex. App.

–– Cor p us Christi 1990, writ denied); Lackner v. B ybee , 159 S.W.2d 215, 216

– 18 (Tex. Ci v. Ap p . –– Galv est on 1942, writ r ef ’ d w.o.m.).
Green , 2018 WL 6565790, at *3

. Crawford does not argue , as did the appellant in Green , that the Disputed Tract
is a narrow strip i n com parison to the a djoin ing land Mary Ruth conveyed in 1984 ; instead, he cont ends th at XTO di d not , and cannot , prove that the D isputed T ract11 ceased to be of benefit or importance to Mary Ruth upon he r 1984 conveyance 7
because in the 1964 TESCO deed she had retained a con dit iona l, reversionary right to

access t he sur face of the Disputed T ract to de velop the oil an d ga s if she were unable

to open a well on other land that would bottom on the Disputed Tra ct
. 8 XTO , on the
other ha n d, claims that Craw fo rd ’ s 1964 surface

- access waiver was absolute

. T h us, we must construe th e 1964 deed to det ermine the s cope of the rights Mary Ruth reserved
vis à vis th e Dispute d Tract

. See , e.g . , Wenske v. Ealy , 521 S.W.3d 791, 7 94 (T e x. 2017) ( reite rating that construction of unambiguous deed is ques ti on of law r equ iring court to determine parti es ’ intent from deed ’ s four corners and to examine and harmonize
the entire instru me nt so that no pro vision will be rendered meaningless )

. Analy s is
Whether M ary Ruth ’ s interest in the Disputed Tract remained of any benefi t to her after the 1984 conveyance of the adjo ining prope rty hinges on whether , in 198 4 , she retained a ny ability to access th e Disputed Tract for developmen t. B efor e th e

7 Alth ough Crawford cites R io Bravo v. Weed , 50 S.W .2d 1080, 1085 (Tex. 19 32), for t he proposition that the appurtenance doctrine underlies the requirement th at a strip must have ceased to be of benefit or importan ce to the grantor f or t he strip

- and

gore doc trine to apply, the Texas Supr e me Court has dist in g uished the appurtenance do ctrin e i t relied on in Rio Bravo from t he strip

- and

- gore doctrine

. Angelo v. B iscamp , 441 S.W.2d 524, 526

– 27 (Tex. 1969); Escondido Servs., I nc. v. VKM H oldings, LP , 321 S .W.3d 10 2, 106

– 07 (Tex. App

. –– E astland 2010, no pet. )

.
8 Cr aw for d als o a rgu ed in the trial court and in h is op ening brief that the st r ip

an d

- gore doctrine cannot apply in the absence of ambiguity in the 1984 deed. But we rej ect ed t h e s ame argument in Green , han ded down after appel l ant filed his opening brie f . 20 18 WL 6565790, at * 3

– 5

.12 advent of widespread , efficient ( and profitable ) horizontal drilling in the Barnett
S h ale

–– in 2002

–– “ [ p]r act ically speaking, [a] mineral estat e woul d be wholly wort hless
if the owner of the minerals could no t enter upon the land in order to explore for an d

ex tract them. ” Plai n sm an Trading Co. v. Crews , 898 S.W .2d 786, 788

– 89 (Tex. 1995);
G reen , 2018 WL 6565790, at *5 & n.13

. If Mary Ruth d id not retain surface

- access rights in the 1964 deed, she had no way to develop the Disputed Tract ; the refore, th at int erest would have ceas e d to be of practical bene fit to her after the 1984
conveyance. 9
The oil

- and

- gas re servation i n the 1964 deed provides,
Gr antor s reserve unto themselves, [and] their heirs and assigns , the right to all oil and gas in and under the [ Disputed Tract ] but e xpre s s ly waive all rights of ingre ss and egress for the purpose of drilli ng fo r or

9 Without surface access, t h e only possible way s for Mary Ruth to develop the oil and gas in 1984 w ere either via directional d rilling from adjace n t la nds or pooling. See Coasta l Oi l & Gas Corp. v. Gar z

a Energy Tr

. , 268 S .W. 3d 1, 1 3

– 1 4 (Tex. 2008) (explaining that deviated well , al so called a slant well, produces gas from the property on which it is bottomed , which is why such a well is prohibited fr om bottom ing on pro perty not o wn ed by the lessor ) ; B r owning O i l Co. v. Luecke , 38 S. W .3 d 625, 634

– 36 (Tex. App.

–– Austin 200 0, pets. denied ) (op. on reh ’ g) ( providing ex planation of mechanics and advantages of horizontal drilling ); R.R. Comm ’n v. M ack

- Hank Petroleum Co. , 18 6 S.W .2d 351, 357 (Tex. App.

–– Austin ) (describing d irectional drilling from ad join ing lands ), rev ’d on other grounds , 190 S.W.2 d 802 (Tex. 19 45); cf. C i ty of Del Rio v. Clayton Sam Colt Hamilton Tr

. , 269 S.W.3d 613, 617

– 18 (Tex. App.

–– San An tonio 2008 , p et. denied ) ( no tin g that owner of subsurface groun d water who had waived surfac e ac ces s in deed, but who also owned adjoining lan ds , could acc ess the groundwater through drain age or directional drilling from adjoini n g lands ) ; 16 Tex. Admin . C ode § 3.37(m)(5 ) (providing th at d eviated wel l drilled after Apri l 1, 19 49 in violation of st ate per mit is illegal). After Mary Ruth conveyed her a djoining land, directional dr illing was an impossi bility , and there is no evidence that pooling with other mi ner al interest owners was a po ssibility in 19 84

. See Green , 2 018 W L 6565790 , at *5.13 producing oil and/or gas from the surface of the [ TESCO Tract ] provided that wells opened on other lands may be bot tomed on t he [TESCO Tract ]

. Crawford argues that th e phrase, “ provided that wells opened on other lands may be
bottomed on ” the D isputed Tract means th at Mary Ruth waived her right o f sur face

access only if and while she was able to open wells on ot her lan ds that could be
bottom ed on the Disputed Tr act. Pu t another way , he argues that th e phra se means that if at any time she could no longer open wells on other lands that could be
bott ome d on the Disputed Tract, the surface waiver would cease

. But XTO argues
th a t the phrase is mea nt to reinforce t he w a i ve r , describing the only means of physical
intrusion of the D isputed Tract : via slant drilling from wells that bottom un der the Disputed Tract but that do not invade the surface

. Although the proviso “ provided th at ” is not preferred because its meaning can be unclear , “ [ u]s ually, a proviso contain ing th [os] e words

. . . before a sentence or
clause [] states an exception to the preceding se ntence or clause. ” Woods v.
VanDevender , 296 S.W.3d 275, 282 & n.2 (T ex. App.

— B eaumont 2009, pet. denied)

. Accor ding t o Br ya n Garner, “ p rovided that ” is disfavored because it “ means too
many different things. ” Bryan A. Garner, Garner ’ s Dictionary of Legal Usage 727 (3 r d ed. 2011). T h e phrase “ may create an exception, a limitation, a conditio n, or a m e re additio n , ” but it so metimes “ is th e functional equ ivalent of if

. ” Id

. B ot h Black ’ s Law Dictionary and Merriam

- Webster ’ s give multiple meanings of the word “ provided , ” including the conditional meanin g urged by Crawford

. B lack ’ s d efines “ provid ed ” as14 (1) “ On the c ondition or understa n ding ( that) , ” (2) “ Except (that), ” and (3) “ A nd. ”
Black ’ s Law Dictionary 1420 (10 th ed. 2014 ). And Merriam

- Webster ’ s defines

“ pr ovided ” as “ on condition that: with the understanding: if only. ” W e bster ’ s Third
New In t ’ l Dictio nary 1827 ( 2002 )

. Thus, we can n ot r es olve the parties ’ intent based

on commo n definitions alone. However, the parties ’ intent becomes clear er f rom reading the 1964 deed in its

ent irety. As evidenced by the first reservation allowing street and u tility access acr oss the TESCO T ract a nd t he covenant that TESCO would not er ect fe nce s around the
TESCO Tract so long as the adjoining land remained undeveloped for res idential
pu rposes , (1) TESCO was concerned about potential public access to

–– an d surfac e interference wi th

–– its elec trical t o wers a nd (2) t he parties contemplated th e pos si b ility
that M ary Ruth or a subsequent ow ner migh t subdivide the adjoining land for

r esidential purposes , thus increasing the possibility of unwanted public access to th e

t owers . T o constru e the deed t o allow s tree ts and utilities on the surface of the
Di spu ted Tract o nly so long as they w ere located a certain dist ance from TESCO ’ s ele ctri cal towers

–– but then to l ater allow surface access for drilling and explorat ion at

an u nknown time , at a n unknown state of d e velopment of the adjacent proper ty, solely to fa cilitate the grantor ’ s desire to de velop the Disputed Tract

–– is nonsensical.
Nothin g indicates tha t the parties contemplated that TESCO ’ s concern about access15 around its ele ctric al towers 10 was subordinat e to Mary Ruth ’ s ability to dev el op t he Disputed T rac t via directional drilling , es pecially considering the parties ’ contemplation of fu ture residential developm ent 11 of the surrounding pro p e rty
. 12

10 See Howa rd v . J ackson Elec. Co

- op ., Inc. , 430 S .W. 2d 689, 690 (Tex. App

. –– W a co 1968, writ r ef ’d n.r.e.) ( arising from oil driller e mployee ’s severe electric shock while re pairing truck a ttached to dril ling rig); see also Bryant v. Gulf O il Co rp. , 694 S.W .2d 443, 4 44

– 45 ( Tex . App.

–– Amarillo 1985 , writ ref ’d n.r.e. ) (arising from electric shock d urin g oil well repair); Copeland Well Serv., Inc. v. Shell Oil Co. , 528 S.W .2d 31 7, 318 (Tex. App.

–– Tyler 1975, writ dism ’d) ( bringin g wron gful de ath claim for electr o cution while work ing on oil wel l) ; Tyler v. McDaniel , 386 S.W .2d 552, 553

– 54 (Tex. App.

–– D allas 1965, writ ref ’d n.r.e.) (invol ving electric shock while working on oil we ll); Nance E xpl. Co. v. Tex. E mp ’rs Ins. Ass ’n , 305 S. W.2d 621, 6 22 (Tex. App.

–– El Pa s o 1957, wri t ref ’d n.r.e.) ( inv olv ing electric shock injury occurri ng during seismic work on p remi ses s ubject to oil

- and

- gas lease ) ; cf. MCI Telecomm. Corp . v. Tex. Util s . Elec. Co. , 995 S.W .2d 647, 6 4 8

– 49 (Tex. 1999) (invo lving disput e in which utilit y c o mpany claimed that laying o f fi ber optic cable around utility poles interfered with pol es ’ lateral supp ort and caused them to lean); Step hens v. Tex. Elec. Serv. Co. , 436 S.W

. 2d 572, 573 (Tex. App.

–– E as tla nd 196 9 , writ ref ’d n.r.e.) ( a rising from electro c u tion of worker installing g oal pos ts at football sta dium); Mo n te z v. Bailey Cty. Elec. Co

- op. , 397 S.W. 2d 108, 109 (Tex. App.

–– A marillo 1965 , writ ref ’d n.r.e.) ( arising from personal injuries as a re sult of electri c shock while drilli ng irrigation water w ells).

11 “ From the beginning of mun i cipal regulation of oil and gas drilling operations, municipalities have regularly re stri cted such operations to non

- residential zones. ” Bruce M. K ramer, Local Land Us e R egulation of Oil and Gas Devel opment , 20 0 8 No. 1 Rocky M t . Min. L. Foun

. - Inst. Paper No. 5 (2008).

12 T hat M ary Ruth would have be en entitled to ac cess the D i sputed Tract from wells drilled on adjoining land sh e owned via d rain age

–– b ut would still have needed TESC O ’ s permission to engage in di rectional d rilling u n der the TESCO T ract

–– reinfo rces th is construction o f th e oil

- and

- gas res er vation : the parties intended that the only permitted physical intrusion of t he TESCO Tract to access the Disputed Tract was underne ath the surface via a slant we ll

. See Lightning O i l Co. v. Anadarko E&P O nshor e, L LC , 520 S.W.3d 39, 47 (Tex. 2017) ( “ [T]he sur face o wner owns and controls the mass of earth undergirding the surface. ” ); Ge tty Oil Co . v. Jones, 470 S.W .2d 618, 62 1 (T ex. 197 1) ( acknowledging mineral less ee ’ s potential liabi l ity for16 Accordingly, we conclude t hat the context o f the entire 1964 de e d makes clear that Mary Ru th did not i ntend t o w aive surface access to the D isputed Tract for only a
limited time , dep ending on her future ability to drill on adjoining lands ; instead, the
construction of the oil

- and

- g as reservation in that deed that harm o nizes all of its provision s is that Mary Rut h di d not intend for he r absolute surface waiver for oil

and

- gas develo pment and explor ation p urposes to waive any other right to explore
and develop from adjoining lands so long as she owned them. Without the a b ility to

access the Disput ed Tract after conv eyi ng the adjoining lands , her interest was of little

to no practical value until almo st twenty years later

. See Green , 2018 WL 6565790, at

* 5 ; Escondido Servs. , 3 21 S.W.3d at 109 ( “ Having n o access to the min e r als under the strip after th e conveyance . . . , it is reasonable to presume that the Crouches intended
to include the st rip in the conv eyance. ” ).
Crawford ra ises no additional challenges to the applica tion of the strip

- and

go re doctrin e. 13 Thus, we hold th a t the trial court properly determined that th e s trip

-

negligently and unn ece s sar ily damaging the subsurface

–– as well as s upera d jacent airspace

–– owned by the surface owner )

.
13 As part of his argument regarding co nstruction of the 1964 deed su rface waive r, he argues that one o f the r ights Mary R uth rese r ved was the right to hold o nto the Disputed Tract for future development. But as we explained in Green , once Mary Ruth conveyed the adj acen t property in 1984

–– the t ime at which we determine the practical benefit to her o f the Disputed Tract

–

– she foreclosed the prospec t of im mediate development ; to not apply the presumptio n on th e ground that she retained a “ future hope that one day [she ] would benefit from that inter est, either via pooling or the advent of technology, ” wo uld go against Texas ’ s public po licy that the17 and

- gore presumption applied to Mary Ruth ’ s 1984 c onveyance and th at Crawford
di d not raise a fact iss ue in rebutta l; therefore , the trial court did not err by granting
X

TO ’ s motion for s ummary judg ment a nd d enying Crawfor d ’ s motion f or partial
summary jud gment on the same issue. We overrule Craw ford ’ s first and dipositive
issue.
C onclu sion
Because we have ove rruled Crawford ’ s dispos itive issue, we affirm the trial

court ’ s judgment. /s/ Wade Birdwell
Wade Birdwell Justice
D e livered: December 19, 2019

St ate ’ s n atural resources should not only be con served but developed. Green , 2018 W L 6565790, at *5 ( citing Tex. Con st. art. 16, § 59).