Surface Rights
All rights in the land excepting the oil, gas, and mineral rights to underground deposits. The surface may be owned separately from the minerals.
Detailed Definition
Surface rights are the rights in land other than the rights to the minerals. The BLM Glossary of Surveying and Mapping Terms defines them as "All rights in the land excepting the oil, gas and mineral rights to underground deposits." Where the minerals have been severed (see Severed Estate), the surface owner holds the surface rights and someone else, often the United States, holds the minerals.
Surface owners over federal minerals
BLM describes the surface owner's position on Stock Raising Homestead Act land: "a landowner owns the surface rights for lands patented under the SRHA. The landowner has the right to develop these lands in the manner set forth by the Homestead Acts, as intended by Congress. This includes developing water sources and infrastructure associated with grazing and raising forage crops."
The statute that reserved those minerals also protects the surface owner. Under 43 U.S.C. 299(a):
- A person entering to prospect "shall not injure, damage, or destroy the permanent improvements of the entryman or patentee," and must compensate the surface owner "for all damages to the crops on such lands by reason of such prospecting."
- A person who has acquired the reserved minerals may reenter and occupy the surface needed for mining only on one of three conditions: "the written consent or waiver" of the surface owner; "payment of the damages to crops or other tangible improvements" where the parties agree on the amount; or "a good and sufficient bond or undertaking to the United States" for the surface owner's benefit.
The additional notice procedure for locating mining claims on this land is covered under Split Estate.
Surface rights of a mining claimant
The Mining Law gave lode locators "the exclusive right of possession and enjoyment of all the surface included within the lines of their locations" (30 U.S.C. 26). For mining claims located after July 23, 1955, the Surface Resources Act narrows that:
- A mining claim may not be used before patent "for any purposes other than prospecting, mining or processing operations and uses reasonably incident thereto" (30 U.S.C. 612(a)).
- The United States keeps the right "to manage and dispose of the vegetative surface resources" and to manage other surface resources, and its permittees and licensees may use the surface as needed, including "for access to adjacent land," without materially interfering with mining (30 U.S.C. 612(b)).
BLM's mining claims brochure summarizes the result: mining claims "located or perfected after the enactment of the Surface Resources Act on July 23, 1955 (30 U.S.C. § 612) are subject to use for certain purposes by the United States or its permittees or licensees."
Why it matters in mineral title research
- The surface chain and the mineral chain are separate. Before mining claims are located on Stock Raising Homestead Act land, 43 U.S.C. 299(b)(3) requires written notice to "the surface owner (as evidenced by local tax records)," so the current surface owner has to be identified from local records.
- The date a mining claim was located decides which surface rules apply to it, so the location date in the BLM case record matters.
Related Terms
Mineral Estate
The ownership of the minerals beneath a tract of land, which can be held separately from the surface and, on federal land, is obtained by claim, lease, or sale depending on the mineral.
Split Estate
Land where the surface rights and the mineral rights are owned by different parties, most often a private surface over minerals reserved to the United States.
Mineral Rights
Rights which attach only to mineral deposits, such as the right to explore for, develop, and extract them, as distinct from rights in the surface.
Severed Estate
Land in which the mineral estate has been separated from the surface estate by a reservation, exception, or separate conveyance, so the two are held as distinct interests.
Encumbrance
A right to or interest in land held by someone other than the owner that makes the land subject to a charge or liability, such as a mortgage, lien, lease, or tax.
Right-of-Way
The legal right to cross the lands of another, or the strip of land used for a road, pipeline, or power line. On BLM land, a grant authorizing use of public land for a specified purpose.
Easement
An interest or right in land owned by another that entitles its holder to a specific limited use, such as crossing the land, laying a pipe, or running a power line.