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Briggs v Southwestern Energy Production Company; Superior Court Addresses Rule of Capture in Light of Fracking Technology

Posted By Cliff Tuttle | April 5, 2018

No. 1,461

BRIGGS V. SOUTHWESTERN ENERGY PRODUCTION COMPANY, 2018 PA Super. 79 (2018)

Southwestern was operating two gas wells on land adjacent to the Briggs families’ 11.07 acres.  The Briggs argue that the use of hydro fracking  by Southwestern robs them of their gas because the fracking process propels fluid and fracking materials across property lines to create fissures in the gas horizon that drain their gas while trespassing on their land. Southwestern defends on the grounds that the Rule of Capture bars recovery by the Appellants.

The Rule of Capture states that oil and gas is a fugitive substance and that a well on my land can capture gas that migrates from your land without paying a royalty.

The trial court had granted summary Judgment to Southwestern, citing the Rule of Capture. After examining Pennsylvania law on the Rule of Capture and two cases from other jurisdictions, the Superior Court held:

“In light of the distinctions between hydraulic fracturing and conventional gas drilling, we conclude that the rule of capture does not preclude liability for trespass due to hydraulic fracturing. Therefore, hydraulic fracturing may constitute an actionable trespass where subsurface fractures, fracturing fluid and proppant cross boundary lines and extend into the subsurface estate of an adjoining property for which the operator does not have a mineral lease, resulting in the extraction of natural gas from beneath the adjoining landowner’s property.

In the instant case, it is unclear from the record before us10 whether Southwestern’s hydraulic fracturing operations resulted in a subsurface trespass to Appellants’ property. There does not appear to be any evidence, or even an estimate, as to how far the subsurface fractures extend from each of the wellbore on Southwestern’s lease. However, we conclude that Appellants’ allegations are sufficient to raise an issue as to whether there has been a trespass, and thus, the entry of summary judgment . . .”

Although some commentators have stated that the Court has overruled the lRule of Capture, it is more likely that it proposed a factual distinction when fracking fluid and material actually invades the adjoining property.  By sending the case back to the trial court for fact finding, this case seems to insure that the final will be given by the Supreme Court on some other day and perhaps in some other case.

CLT

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CLIFF TUTTLE has been a Pennsylvania lawyer for over 40 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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