§ 6.7 - Relative Rights-Surface and Mineral Rights

• Jurisdiction: Washington

§6.7 RELATIVE RIGHTS—SURFACE AND MINERAL RIGHTS

If mineral rights have been established separate and apart from the ownership of the surface, which may involve some aspects of the method of mining in determining whether the right exists at all, the exercise of the mineral rights may result in destruction of the beneficial aspects of the surface owner's estate. In federal reservations of minerals, Congress has been reasonably explicit in attempting to resolve the conflict by providing for use of so much of the surface as may be required for all purposes reasonably incident to mining, with the requirement of payment for surface damage. 43 U.S.C. §299. The state of Washington, in providing for a statutory form of reservation in RCW 79.11.210, reserves with the minerals the right to enter, including the right to exercise very broad beneficial and efficient complete enjoyment of the property and the rights reserved, subject to payment for surface damage.

The Washington courts have not reached the question of construction of rights accorded to the holder of a mineral estate created by private grant or reservation. The history of mineral rights arises partly out of the English common law, by which the Crown, under the feudal system, reserved minerals, and so necessarily reserved all rights impliedly necessary to the minerals. This has been referred to as the dominant estate, making the surface owner's estate subordinate to that of the owner of the mineral...