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After severance of the mineral rights from the surface rights it is possible for the surface owner, or even a person having no interest in the surface, to acquire title to the minerals by adverse possession. After such severance, title to the minerals cannot be gained through adverse possession without a penetration of the mineral estate. Instead, the presumption prevails that the owner and holder of the surface is trustee of the minerals for the use and benefit of the owner of the mineral rights.
The appellant, John T. Diederich, seeks a declaration of the rights of himself and others to royalties from two producing wells on a 56-acre tract, the surface rights to which are owned by the appellee, E. C. Ware, and the trial court adjudged that the appellee had acquired title to the oil by adverse possession through two wells which were sunk on the property by the surface owners in 1924 and which have been in open, notorious, and continuous operation ever since. The appellant bases his claim upon an 1859 recorded deed which severed the oil rights from the surface. In its judgment, the trial court adjudged the surface rights owner acquired title to the oil by adverse possession through two wells, which were sunk on the property by the surface owners in 1924 and which had been in open, notorious, and continuous operation since that time. The trial court also found the claimant's predecessors in title had actual and timely notice that oil was being taken from the tract under the adverse claim and made no effort within the 15-year statutory period to assert their rights.
Can oil rights granted by an 1859 deed be acquired through adverse possession by the owner of the surface of the land by the drilling and operation of two oil wells in a corner of a 56-acre tract?
The court affirmed the judgment because the operation of the two oil wells for the statutory period cut off the right of anyone else, including the claimant, to drill for or extract oil on the property.