Fighting back against Oil and Gas Operations on Your Land

Many people in West Virginia do not own the minerals under their property. They only have what we call “surface rights.”  Surface rights allow us to live on and use the surface of the land, but do not include ownership interests in items such as coal, oil and natural gas.  It is disappointing to find out that as a surface owner you cannot benefit from the tremendous amount of money that has been coming into the area for the last seven to eight years from oil and gas operators.  What is more disappointing, however, is to find out that those oil and gas companies may still be able to come onto your property to try and get the oil and gas out from underneath of it.  Mineral owners and those companies obtaining leases from those owners have implied rights that can possibly permit them to come onto the surface overlying their minerals.  The traditional thought was that the minerals under the property really have no value unless you can get to them and use them.  Therefore, even if a deed which severed the mineral and surface rights apart is silent on the subject of surface rights, the mineral owner has implied rights to use the surface of the property.  What does that mean?  Can the gas company build a road on your property?  Can the gas company put in pipelines or electric lines?  Can the company drill a well site on your property?  The West Virginia Supreme Court has typically upheld the rights of mineral owners to do what is “fairly” or “reasonably necessary” to extract their minerals.  Gas companies have been pushing these rights to the brink of fairness and reasonableness in recent years.  The advent of horizontal drilling and hydraulic fracturing has made it possible to develop many hundreds of acres of mineral rights from one drill site.  That drill site, however, is much larger and involves much more equipment and potential pollutants and emissions that the traditional oil and gas well sites which were drilled over the preceding 100 years before the Marcellus and Utica Shale plays.  Modern drill sites can be 10, 15 and 20 acres.  There have been ponds installed; there are compressors, dehydrators, heaters and many other types of noisy and potentially dangerous pieces of equipment involved.  Can an oil and gas company put one of those well sites on your property if you only own your surface and not the minerals?  They are certainly trying to.

We believe that oil and gas companies, by in large, do not have such broad implied rights to use your property.  Cases decided in the area of coal mining law have long held that mineral owners might have the right to use a piece of surface property to get the mineral under that property, but not to get to minerals located under other people’s properties.  This idea has been extended to the concept of oil and gas law in other cases and many legal scholars agree that oil and gas companies should not be permitted to force their way onto a surface owner’s lands to conduct production operations which will produce gas from separate unrelated properties.  This concept is a tool to help surface owners fight back against large horizontal drilling operations on their property.  There is actually an argument that drilling horizontal wells against the wishes of a surface owner can be considered trespassing.  Bordas & Bordas is already representing several surface owners who have been approached by oil and gas companies seeking to use our client’s surface to drill massive horizontal well sites.  Often these cases result in the oil and gas companies actually filing suit against the surface owner to try and enforce their alleged rights.  It is important to know that even if the oil and gas company has certain implied, or even express, rights to enter your land, it cannot do so in a manner which “unduly” or “substantially” burdens your use of the surface rights.  Finally, even if the company does have a right to be on your property, there are several avenues available to help you get compensation for the damages to your property and, potentially, the decrease in your property value.  If you are a surface owner who has been approached about operations on your property, feel free to call us to get a no obligation consultations about what rights you might have.  Even if a gas company has already drilled on your property, it may be possible for you to purse several different avenues of recovery to be compensated for your loss.

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