Property rights assignment by homesteading is based on a theory of philosopher John Locke. Locke believed "as much land as a man tills, plants, improves, cultivated and can use the product of, so much is his property." Such labor, Locke continues, "enclose(s) it from the common."

In a Lockean world, mineral rights do not accompany surface rights in either original or transferred ownership. Minerals would not be owned until homesteaded by the acts of discovery and intent to possess. In the case of oil and gas, initial ownership would occur when the oil or gas entered the well bore and was legally claimed by the driller. The reservoir would then turn from a "state of nature" into owned property. The homesteader (discoverer) could be the property owner directly overhead, another land owner, or a lessee of either.

The oil and gas lease under...