Fourth Circuit Rejects Surface Owners’ Trespass Claim Against Drilling Operator
In a victory for hydraulic fracturing interests, the Fourth Circuit held that Chesapeake Energy Corp. did not commit common law trespass upon surface owners’ rights by developing natural gas wells below their farmland. Whiteman v. Chesapeake Appalachia LLC, No. 12-1790 (4th Cir. Sept. 4, 2013), available at www.bdlaw.com/assets/attachments/whitemanvchesapeake.pdf.
Chesapeake owns the mineral rights below 101 acres in West Virginia, while Martin and Lisa Whiteman own the surface rights. Whiteman, slip op. at 2. Chesapeake operates three natural gas wells on 10 of the 101 acres, including a permanent drill waste disposal on the surface. Id. at 3. The Whitemans claimed that Chesapeake’s drilling operations constituted common law trespass, arguing that those ten acres are unusable to them, and requested an injunction and damages. Id. at 8.
Examining the long history of mineral estate owners’ rights in West Virginia law, the court found that Chesapeake’s disposal of drill waste on the surface estate was “reasonably necessary” for enjoyment of the mineral estate. Id. at 10-24. The court emphasized that the drilling only impacted 10 acres, that the Whitemans admitted that their current monetary damages are “trivial,” and that they did not rebut expert testimony that the drilling operations caused no diminution in the value of their property. Id. at 6, 10-24. The court also rejected the Whitemans’ claim that Chesapeake should have implemented a closed-loop system instead, finding that those systems were not “reasonably necessary” because they are expensive and were not used in West Virginia at the time Chesapeake developed these wells. Id. at 25-26.