Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the January 15, 2014 mailing of "Constructive Notice":

Standing to Assert Prescriptive

Maralex is an oil and gas lessee on land owned by the federal government. To access the wells, Maralex historically traversed two roads located on private property adjoining the federal land. Maralex sued to establish prescriptive easements and the trial court held (1) a tenant lacks standing to quiet title to an affirmative easement appurtenant to the fee, and (2) an easement annexed to a leasehold, but independent of the fee interest is not a recognized form of property.

The Colorado Court of Appeals reversed. Maralex Resources, Inc. v. Chamberlain, et al., 2014 COA 5 (January 2, 2014).

Almost all courts in the U.S. hold that a mineral rights lease possesses a unique nature and purpose. The Court adopted the majority view that the lessee acquires an interest in real property much closer to a fee than a leasehold. Hence, common law landlord-tenant principles are inapplicable to determine whether such a lessee has standing to maintain a prescriptive easement claim.


With the advent of hydraulic fracturing (fracking), mineral rights law has gained importance in jurisdictions not traditionally concerned with it (e.g. New York). Pennsylvania, West Virginia and many western states have well-developed bodies of case law that can have value for the New York lawyer.