Briggs v. Sw. Energy Prod. Co.
Decision Date | 22 January 2020 |
Docket Number | 2018,No. 63 MAP,63 MAP |
Citation | 224 A.3d 334 |
Parties | Adam BRIGGS, Paula Briggs, His Wife, Joshua Briggs and Sarah H. Briggs, Appellees v. SOUTHWESTERN ENERGY PRODUCTION COMPANY, Appellant |
Court | Pennsylvania Supreme Court |
In this appeal by allowance, we consider whether the rule of capture immunizes an energy developer from liability in trespass, where the developer uses hydraulic fracturing on the property it owns or leases, and such activities allow it to obtain oil or gas that migrates from beneath the surface of another person's land.
Oil and gas are minerals, and while in place they are considered part of the land. See Hamilton v. Foster , 272 Pa. 95, 102, 116 A. 50, 52 (1922). They differ from coal and other substances with a fixed situs in that they are fugacious in nature – meaning they tend to seep or flow across property lines beneath the surface of the earth. See Huntley & Huntley, Inc. v. Borough Council of Oakmont , 600 Pa. 207, 228, 964 A.2d 855, 867 (2009). Such underground movement is known as "drainage." See Hague v. Wheeler , 157 Pa. 324, 337, 27 A. 714, 718 (1893). Drainage stems from a physical property of fluids in that they naturally move across a pressure gradient from high to low pressure. See Coastal Oil & Gas Corp. v. Garza Energy Trust , 268 S.W.3d 1, 42 (Tex. 2008) (Johnson, J., concurring and dissenting) ( ). Indeed, the extraction of oil or gas by drilling is based, at least in part, on creating a low-pressure pathway from the mineral's subterranean location to the earth's surface. See Wettengel v. Gormley , 160 Pa. 559, 567, 28 A. 934, 935 (1894).
BLACK'S LAW DICTIONARY 1358 (8th ed. 2004)); accord Brown v. Spilman , 155 U.S. 665, 669-70, 15 S. Ct. 245, 247, 39 L.Ed. 304 (1895).1 A corollary to this rule is that an aggrieved property owner's remedy for the loss, through drainage, of subsurface oil or gas has traditionally been to offset the effects of the developer's well by drilling his or her own well, often termed an "offset well." See Barnard v. Monongahela Gas Co. , 216 Pa. 362, 365, 65 A. 801, 803 (1907) () .
The reference to "the lands of another" in the above quote does not suggest a developer may invade the subsurface area of a neighboring property by drilling at an angle rather than vertically (referred to as slant drilling or slant wells),2 or by drilling horizontally beneath the surface.3 This is because the title holder of a parcel of land generally owns everything directly beneath the surface. See Chartiers Block Coal Co. v. Mellon , 152 Pa. 286, 295, 25 A. 597, 598 (1893) ; Jones v. Wagner , 425 Pa. Super. 102, 107, 624 A.2d 166, 168 (1993) (quoting Gostina v. Ryland , 116 Wash. 228, 199 P. 298, 300 (1921) ). Rather, and as suggested by the "no trespass" predicate, it refers to the potential for oil and gas to migrate from the plaintiff's property to the developer's land when extracted from a common pool or reservoir spanning both parcels. See Barnard , 216 Pa. at 365-66, 65 A. at 803 ; Minard Run Oil Co. v. United States Forest Serv. , 670 F.3d 236, 256 (3d Cir. 2011) (); Jones v. Forest Oil Co. , 194 Pa. 379, 383, 44 A. 1074, 1075 (1900) ( ).
Finally, the rule of capture applies even where devices such as pumps are used to bring the mineral to the surface and thereby reduce the production of neighboring wells. See Jones , 194 Pa. at 384-85, 44 A. at 1075.
United States Environmental Protection Agency (the "EPA"), The Process of Unconventional Natural Gas Production , https://www.epa.gov/uog/process-unconventional-natural-gas-production (viewed Oct. 22, 2019).4 In terms of how the technique works, the EPA continues:
After injection, fluid is withdrawn from the well while leaving the proppants in place to hold the fissures open. This enhances the drainage of oil or gas into the wellbore where it can be captured. See id. ; Trent v. Energy Dev. Corp. , 902 F.2d 1143, 1147 n.8 (4th Cir. 1990) ; Coastal Oil , 268 S.W.3d at 6-7. See generally Jason B. Binimow, Liability for Trespass or Nuisance in Hydraulic Fracturing, Hydro-fracturing, or Hydro-fracking , 41 A.L.R. 7th Art. 1, § 2 (2019).
(i) Introduction
This appeal comes to us in a somewhat unusual posture. The parties presently favor essentially the same rule of law: they both, in substance, argue that the traditional rule of capture should apply, subject to the common-law standard for trespass of real property based on physical intrusion onto another's land. See RESTATEMENT ( SECOND ) OF TORTS § 158 & cmt. i (1965) (indicating liability follows from the defendant's entry onto the plaintiff's property, and noting this includes throwing, propelling, or placing a thing on the land or above or beneath its surface).5 Each party, moreover, depicts the other as erroneously suggesting that an exception to this framework should pertain where hydraulic fracturing is used to obtain oil or natural gas. In particular, the plaintiffs suggest that Southwestern wishes to convert the rule of capture into a precept whereby energy developers may physically invade the property of others to capture natural gas so long as they are using hydraulic fracturing. See, e.g. , Brief for Appellees at 6; see also id. at 26 ( ). For its part, Southwestern portrays the plaintiffs and the Superior Court decision from which it appeals as positing that the rule of capture simply does not apply when hydraulic fracturing is used for energy development on one's own land. See, e.g. , Brief for Appellant at 15 ( ).
To maintain these positions, the parties proceed from a different understanding of the relevant factual and procedural history. We therefore review that history in some detail, as it will become relevant in determining the nature of the issues before us and how the case should proceed upon resolution of those issues. In so doing, we will attend to whether the plaintiffs have alleged (and can potentially demonstrate) a claim that Southwestern physically intruded into their land through the use of hydraulic fracturing.
(ii) Undisputed facts
Adam, Paula, Joshua, and Sarah Briggs ("Plaintiffs") own a parcel of real estate consisting of approximately eleven acres in Harford Township, Susquehanna County. During all relevant times, Plaintiffs have not leased their property to any entity for natural gas production. Plaintiffs' property is adjacent to a tract of land leased by Appellant Southwestern Energy Production Company for natural gas extraction (the "Production Parcel"). Southwestern maintains wellbores on the Production Parcel and has used hydraulic fracturing to...
To continue reading
Request your trial-
In re Trust Under Will of Augustus T. Ashton, Deceased Dated January 20, 1950
...has emphasized that it "is limited to the issue as it was framed in the petition for allowance of appeal[.]" Briggs v. Sw. Energy Prod. Co., ––– Pa. ––––, 224 A.3d 334, 350 (2020) (citing Pa.R.A.P. 1115(a)(3) ("Only the questions set forth in the petition [for allowance of appeal], or fairl......
-
In re Tr. Under Will of Augustus T. Ashton
...that it "is limited to the issue as it was framed in the petition for allowance of appeal[.]" Briggs v. Sw. Energy Prod. Co.__, Pa.__, __, 224 A.3d 334, 350 (2020) (citing Pa.R.A.P. 1115(a)(3) ("Only the questions set forth in the petition [for allowance of appeal], or fairly comprised ther......
-
Commonwealth v. Rivera
...... See Brief for Appellee at. 12-14. . . [ 4 ] See Briggs... See Brief for Appellee at. 12-14. . . [ 4 ] See Briggs v. Sw. Energy... 12-14. . . [ 4 ] See Briggs v. Sw. Energy Prod......
-
Commonwealth v. Chesapeake Energy Corp.
...who refuse to "play ball" — the producers need only obtain leases on the neighboring land. See, e.g. , Briggs v. Southwestern Energy Prod. Co. , ––– Pa. ––––, 224 A.3d 334, 352 (2020) (rule of capture remains in effect and natural gas developers who use hydraulic fracturing "may rely on pre......
-
FEDERAL PLEADING STANDARDS IN STATE COURT.
...I v. Homes Sav. & Loan of Youngstown, No. 96675, 2012 WL 1067748, at *2 (Ohio Ct. App. Mar. 29, 2012); Briggs v. Sw. Energy Prod. Co., 224 A.3d 334, 351 (Pa. 2020); Sisney v. Best Inc., 754 N.W.2d 804, 808-09 (S.D. 2008); GoDaddy.com, LLC v. Toups, 429 S.W.3d 752, 754 (Tex. Ct. App. 201......
-
Chapter 5 OIL AND GAS UPDATE: LEGAL DEVELOPMENTS IN 2020 AFFECTING THE OIL AND GAS EXPLORATION AND PRODUCTION INDUSTRY
...2020 OK 84, ¶ 7 (citations omitted).[166] Id. ¶ 17.[167] Id.[168] 2020 OK 29, 465 P.3d 1206.[169] https://oklahoma.gov/occ.html.[170] 224 A.3d 334, 352 (Pa. 2020).[171] Id.[172] Briggs v. Sw. Energy Prod. Co., 245 A.3d 1050 (Table) (Pa. Super. Ct. Dec. 8, 2020).[173] Id.[174] 229 A.3d 372 (......