Adverse Possession: Mineral Rights

Also known as “squatter’s rights” adverse possession is the occupation of land with the intention of possessing it as one’s own, to which another person has title (a/k/a ownership). Adverse possession applies to surface rights, but what about minerals?

Adverse possession requires not only actual possession, but also a number of additional elements (continuous, hostile, open and notorious, exclusive, and time). For a refresher on the basics of adverse possession and these elements, click HERE.

If the surface and mineral rights haven’t been severed, then a successful adverse possession claim will include both the surface and mineral rights. If the minerals have been severed, however, then a successful adverse possession claim includes only the surface.

But what exactly does it mean to “sever” these rights? Mineral rights are severed from the surface estate when the minerals are owned by a party other than the party owning the surface. Mineral rights can be severed in a number of ways, such as an express conveyance of mineral rights only or an express reservation of mineral rights in a deed of conveyance.

Let’s look at an example: Mary owns a tract of land in which the minerals have not been severed from the surface estate, meaning that she also owns all of the minerals underlying this tract of land. Jack was in possession of this tract of land and brings a successful adverse possession claim against Mary. Jack is now the owner of the surface and minerals.

But let’s say that Mary owns only the surface of this tract, and the minerals are owned by Carly. Even though Jack was in possession of this land and brought a successful adverse possession claim, he would only own the surface estate. Because the minerals were severed, Carly remains in possession of the minerals.