Roping the wind? Seems near to impossible to think about it doesn’t it? Can’t you imagine a little boy on his stick horse trying to catch it with his rope and loop? Toss after toss, the rope falls to the ground with the dust being carried away by the very air he’s trying to catch.
Now consider this: Are Texas landowners any different than that little boy? In other words, are wind rights actually something landowners can legally reserve? Allow me to bring this home for a moment.
Farmer John is sitting at the kitchen table with his Realtor after he’s agreed to sell a tract of land. As he’s signing the contract, he comes to the portion where he decides which reservations he’ll keep. Farmer John doesn’t have any mineral rights, but considers whether or not to reserve his wind rights. After all, Grandpa Jones would have been rich if he had reserved his mineral rights back when he sold the family farm in the ‘30s. Driving by the old homestead today, it’s hard not to notice the 10 pump jacks sending that Texas Tea bubbling to the top.
So Farmer John has to mull over the thought that his kids could see the same thing in 50 years, except with 100 wind turbines looming over the old homestead. How do you go about trying to reserve wind rights? Is it as futile as trying to rope the wind?
The way it stands now (which could change with any court ruling), wind rights are being reserved in the same manner as mineral rights. All the while, there is a noticeable difference — wind rights haven’t seen the division of executive and royalty rights that minerals have. The main reason is that a Texas Court hasn’t ruled whether or not wind is a natural resource that can be owned separate of the property or a surface right subject to the rule of capture, just like water.
Let’s back up before we go any further. In the State of Texas, we have Unified Fee Ownership, which means the landowner owns from the center of the earth to the sky. However, wild animals can run through your property and you do not own them until they are captured. Until you shoot, fence, or cage an animal, it is owned by the state.
To add to the confusion, the landowner privately owns the water running in underground streams under his soil. But, a neighbor can have a well situated on the boundary line of the property, feeding off that underground stream, and it’s legal — protected by Texas’ rule of capture law.
While each of these natural elements has different quirks of ownership, they are all alike in the fact that they are deemed natural resources and can be regulated by the State of Texas per the state constitution. Subsequently, Texas water is regulated by water conservation districts which determine spacing of wells on property. They may soon tell us how much we can pump, but that is a whole other can of worms. The Texas Railroad Commission regulates oil and gas and how much of that can be pumped a day. Game wardens are dispatched across the rural countryside, managing wildlife populations and arresting poachers.
Judon Fambrough, a lawyer with the Real Estate Center at Texas A&M University, brings up another really good point. The Texas Natural Resources Code states, “The conservation and development of all the natural resources of this state are declared to be a public right and duty.” (Section 89.001) Mr. Fambrough’s asks the question, “does the phrase conservation and development apply separately or together?” In other words, can we develop wind energy, and if so, do we have to conserve it as well? If you’ve ever been to West Texas, that sounds ludicrous.
There are too many questions and not enough concrete answers on this topic to even attempt to write a conclusion. By no means do I propose to have all the answers; rather, I am trying to stimulate some thoughts on the matter, bring to the forefront the issues at hand, and get you cussing and discussing this topic among your peers.
The questions that remain to be solved are these: Is wind a natural resource? What type of ownership do landowners have? Can you sell wind rights like oil and gas rights? Or do they stay with the property? Do we have to conserve wind per the code above? And will government come in and regulate this industry as well?
I’d be happy to discuss any thoughts you the reader might have on the topic. After all, we’re in this boat together.
