A federal court in West Virginia has ruled that owners of surface land have no trespass claim against a natural gas company with subsurface mineral rights for building and using drilling waste pits at the site. Teel v. Chesapeake Appalachia, LLC, No. 11-5 (N.D. W. Va. 10/25/12).

Under a third-party lease agreement, defendant conducted natural gas drilling operations on property owned by plaintiffs and installed two natural gas wells as well as two pits for waste disposal. According to plaintiffs, defendant dumped large volumes of drill cuttings, mud and chemical additives into the pits and eventually covered them with soil. Plaintiffs sued defendant for trespass, negligence, strict liability, and intentional and negligent infliction of emotional distress, alleging that defendant’s actions harmed their property value and may cause harm to them and their property in the future. Defendant moved for partial summary judgment, arguing that plaintiffs do not have common law trespass claims as a matter of law.

The court ruled for defendant, holding that the use of drilling pits is “fairly necessary to the extraction of the natural resources under the circumstances” and is therefore within the subsurface owner’s property rights. Although the lease agreement did not provide defendant with an explicit right to build and use waste pits, the court cited the West Virginia Code, which includes reclamation requirements for pits containing drill cuttings, as enough to show that defendant had an implied right to build and use the waste pits. The court also stated, “[t]he discussion of pits and impoundments in the statutes, rules, and regulations governing the exploration, drilling, storage, and production of oil and natural gas, suggest[s] that the creation of the pits on [plaintiffs’] property was necessary and reasonable.” Under West Virginia law, the court added, it is “well settled . . . that one who owns subsurface rights to a parcel of property has the right to use the surface of the land in such a manner and with such means as would be fairly necessary for the enjoyment of the subsurface estate.”