West Virginia Supreme Court Stands Up for Surface Owners

By John McFerrin

The West Virginia Supreme Court of Appeals has ruled that a gas company may not use surface of one landowner’s land in order to extract gas from underneath nearby land.  This will go a long way toward giving surface owners protection from gas drilling.

Since longer ago than anybody can remember, the law in West Virginia has allowed mineral rights to be separated from surface rights.  One person could own the surface of land while another owned the minerals beneath that surface.

Along with ownership of minerals came the right to do what was reasonable and necessary to extract those minerals.  When a mineral owner wanted to take the minerals, there was nothing the surface owner could do about it, so long as the mineral owner used methods that were reasonable and necessary.

This system worked, more or less, so long as the drillers were only after gas under a particular piece of land.  So long as their methods were reasonable and necessary, they could drill.  There may have been disputes over exactly what was reasonable and necessary in a particular situation but the general rule was clear: mineral owners had the right to take the minerals; surface owners had to put up with it.

Then came horizontal drilling.  With horizontal drilling, companies drill vertically for a mile or so, turn, and then drill in several directions for up to four miles.  The result is that instead of extracting gas from beneath a piece of property, they are extracting gas from adjoining property as well.

The question before the Court in this case was whether a drilling company could use the surface to reach gas not just under that surface of that land but under neighboring land as well.  The Court held that it could not.

The case before the Court arose in Doddridge County.  The company moved onto the land, built various two-lane roads, and cleared about forty two acres.  It also constructed a 19.7-acre well pad. It drilled nine new wells on the plaintiffs’ land, and had drilled a total of 9.7 miles (51,470 feet) of horizontal bores under neighboring properties.  The longest individual horizontal bore was 8,450 feet.  To do this required 95 million gallons of water which they trucked to the well site.  In addition it trucked in almost two million pounds of sand.

The company said that the use of the Plaintiffs’ surface was reasonable and necessary to reach all the gas that it planned to extract, including the gas that was all the way to the end of its long horizontal borings.  The Plaintiffs agreed that the company had the right to do what was reasonable and necessary to reach gas under their land.  Their complaint was with the company using their land to reach gas under other peoples’ land.  The Court agreed with the Plaintiffs.

One of the fundamental rights of ownership is the right to exclude others. Since the company did not have a right, under the reasonable and necessary doctrine, to use the Plaintiffs’ property, its use of the surface was a trespass.  The Court quoted Blackstone’s Commentaries, “In every case where one man has a right to exclude another from his land, the common law encircles it, if not inclosed already, with an imaginary fence.  And to break such imaginary fence, and enter the close of another, is a trespass.” [Note:  The Commentaries on the Laws of Englandare an18th-century treatise on the common lawof England by Sir William Blackstone, originally published in1765–1770. They were once studied by all aspiring lawyers on both sides of the Atlantic.  Citing Blackstone is a way of saying, “It has always been this way and we are not about to change it.]

Since the company had no right to go onto the Plaintiffs’ land, its doing so was a trespass and the Plaintiffs were entitled to recover whatever they had been damaged as a result.  The Circuit Court had awarded the Plaintiffs damages of $190,000; the Supreme Court affirmed that ruling.

Question not decided

Courts typically do not decide every possible issue that arises in a case.  This case is no exception.  The lease that was at issue here was signed in 1901.  At the time, the only gas drilling that anybody knew about was conventional drilling, a hole drilled vertically until they hit gas.  Nobody imagined that we would one day be drilling a mile into the earth, turning, and drilling another two miles.  Nobody imagined the surface occupied by the drills, the well pads, the water, etc. that would be required to do drilling on that scale.

It is a legal truism that courts enforce agreements only as contemplated by the parties to the agreement.  The Court in this case could have considered the question of what the parties to the 1901 lease contemplated and allowed the company to do only the surface disturbance that was within the contemplation of the parties.  It didn’t do that.  Its ruling on trespass, etc. was sufficient to resolve the dispute between the people before it.  Whether modern day drilling should be limited because it was not within the contemplation of parties to turn of the 20thCentury leases will have to wait for another day.

Where You Stand Depends Upon Where You Sit

In its reporting on this decision, the Marcellus Drilling News opened with this graphic:

In its earlier reporting on this controversy, the Marcellus Drilling News had observed, “We certainly understand why surface rights owners would resist having a drill pad on their property, however, that’s life.”

The Marcellus Drilling News does not represent any industry group; it is not, for example, the official mouthpiece of the WV Oil and Gas Association WV. According to its website it “scours the available news about the Marcellus and Utica Shales each day Monday to Friday and culls from the stack the items that likely would be of most interest to landowners and to those with an interest in the shale gas drilling industry.”