Water to Wind: The Path Texas Groundwater Law Provides to Sever the Wind Estate and Prioritize Mutually Dominant Estates

The Texas Legislature should sever the wind estate. The severance of wind estates is a current and common practice within Texas; however, neither the Texas Judiciary nor Texas Legislature has spoken regarding the validity of severed wind estates. The Texas Supreme Court aligned the ownership of groundwater to the ownership of minerals in 2012 and again in 2016. The Court’s decisions regarding groundwater supported a uniform approach to determining the property interests of financially valuable and fugitive natural resources. This method of determining ownership of groundwater differs from the approaches other states have utilized to determine ownership of financially valuable and fugitive natural resources. The Court also supported the historic approach Texas has taken to promote private property rights and the right to contract concerning one’s property when upholding the validity of severed groundwater estates. The ownership theories the Court applied to groundwater indicates how the Texas Legislature, or Texas Judiciary, should act regarding the ownership of wind. This Article analyzes property rights in the wind above the surface estate and aligns the wind estate with groundwater and mineral estates, supporting the position wind estates should be severable property estates. Texas leads the nation in the production and development of wind energy, and due to this robust industry in Texas there are millions of dollars at stake in wind development and lease payments to landowners. Though Texas leads the nation in production and development of wind energy, neither the Texas Supreme Court nor Texas Legislature has provided any clarity to the property interests at stake in wind. The two cases that have addressed the severance of wind estates have analogized the wind estate to the mineral estate or groundwater estate. The validity of wind estates needs to be addressed in Texas due to the financial gains, or losses, affecting the Texas landowner if legislation is passed validating, or invalidating, the severance of wind. If legislation is passed validating the wind estate, or legislation is passed similar to legislation passed by other states proactively invalidating wind severance while honoring the previously severed wind estate, wind estates will exist. The determination of the priority of the wind estate compared to the mineral, groundwater, and surface estates will have to be determined. The application and understanding of common law doctrines such as the dominant estate doctrine, first in time; first in right doctrine, and the accommodation doctrine provide clarity to the priority of the respective estates. The Texas Supreme Court holdings in Coyote Lake Ranch v. City of Lubbock, as well as Edwards Aquifer Authority v. Day, applied the jurisprudence previously applied to mineral estates to groundwater estates. This Article analogizes the principles recently applied to groundwater estates and how they can, and should, be applied to the wind estate. This Article also explores the relationship between the mineral, groundwater, and wind estate as mutually dominant estates and the respective relationships with the surface estate. Currently, there is no academic article providing an analysis of how Coyote Lake Ranch and Day provide a foundation to determine the ownership of the wind above one’s property. Thus far, only a few scholarly articles address the severance of wind estates in Texas. The analyzation and determination of priority of wind, mineral, and groundwater estates as mutually dominant estates have not been the focus of any scholarly article thus far. My Article fills this substantial gap in the scholarly literature and provides readers with legal and practical reasons the wind estate should be considered a severable property interest that is equal in dignity to the mineral and groundwater estates.