On Wednesday, the Pennsylvania Supreme Court decided Butler v. Charles Powers Estate, No. 27-MAP-2012 (Pa. Apr. 24, 2013), re-affirming the general presumption in Pennsylvania law that a deed that conveys or reserves “minerals” does not convey or reserve rights in shale gas. This presumption dates at least from Dunham v. Shortt & Kirkpatrick, 101 Pa. 36 (1882). However, Dunham turned on the fugacious nature of oil and gas. “Mineral” in the common lay understanding means something metallic and fixed. Oil and gas seep. However, Dunham arguably conflicts with United States Steel Corp. v. Hoge, 468 A.2d 1380 (Pa. 1983), holding that coal bed methane is conveyed in deeds conveying the coal. Thus, reasoned the Superior Court in Butler, a deed reserving “minerals” might have been reserving the shale rock and therefore the gas within the rock. The upshot of affirmance would have been to call into question gas title throughout the Marcellus Shale region in Pennsylvania, or at least so some alleged. The Supreme Court has laid all that concern to rest.
Find the court’s opinions here.