Pennsylvania Record

Tuesday, April 7, 2020

State Supreme Court says rule of capture applies to fracking, but notes trespassing claims may apply

State Court

By John Suayan | Feb 25, 2020


HARRISBURG — The Supreme Court of Pennsylvania ruled that the rule of capture applies in hydraulic fracturing in the state, but did not answer the question as to whether subsurface fractures across property lines constitute trespass.

The court issued a 31-page opinion on Jan. 22, siding with Southwestern Energy Co., which was sued by residents Adam Briggs, Paula Briggs, Joshua Briggs and Sarah H. Briggs on allegations its fracking activities were a form of trespassing.

The rule of capture states that the first person to capture a natural resource owns that resource, and in terms of the U.S. legal system, protects drillers from trespassing liability when a well drilled on one property taps into oil and gas beneath a neighboring property, to the practice of hydraulic fracturing.

At issue of the Briggs’ litigation is a parcel of real estate consisting of approximately 11 acres in Harford Township, Susquehanna County, which neighbors a tract of land leased by Southwestern. The Briggs claimed they have not leased their property to any entity for natural gas production, and therefore filed trespassing accusations against the Houston-based natural gas exploration and production company.

Southwestern, in turn, denied the complainants’ assertations its activities equated to trespassing, arguing it “only drilled for oil, gas or minerals from under properties for which [it] has leases.” It also cited the rule of capture.

Pennsylvania Chief Justice Thomas G. Saylor wrote that “oil and gas are minerals, and while in place they are considered part of the land.”

“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,” the opinion says. Saylor added that “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.”

The opinion concluded that the parties in the appeal are in agreement with the rule of capture remaining extant in Pennsylvania, but "held that hydraulic fracturing may give rise to liability in trespass, particularly if subsurface fractures, fluid or proppant[s] cross boundary lines, resulting in the extraction of natural gas from beneath an adjoining landowner’s property."

Supreme Court of Pennsylvania case number J-48-2019 

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Southwestern Energy