The Texas Supreme Court recently held that a surface owner had not established that the lessee of a severed mineral estate had failed to accommodate the owner's existing surface uses (i.e., cattle operations). See Merriman v. XTO Energy, Inc., No. 11-0494 (June 21, 2013). Addressing the owner's claims, the court stated: "But, even if Merriman's statements contain sufficient factual underpinnings so they are not entirely conclusory, they do not provide facts or evidence showing that there was no reasonable alternative method for him to conduct the sorting, working, and loading activities somewhere else on the tract. He did not explain why corrals and pens could not be constructed and used somewhere else on the tract; and if they reasonably could be, then his existing use was not precluded."
