WV Marcellus Legal Battle over Well Pads: Surface Rights Owners v. Mineral Rights Owners

In West Virginia, mineral rights are more complex than in other states because those rights in many (perhaps most) cases were separated from the land above it long ago due to coal mining. It is a situation that sometimes pits the rights of the surface owners of the land against the rights of those who own the mineral rights below the land. Mineral rights owners have a right to access the surface in order to extract the coal, oil or gas beneath.

But in the case of horizontal hydraulic fracturing, do mineral rights owners have the right to to set up a multi-acre well pad on the surface to extract natural gas from neighboring properties? An interesting legal question that is being played out in Marion County, WV now.

Richard Cain argues that gas producers don’t have a right to put large Marcellus shale wells on his land in order to get at gas on his neighbors’ property. If Cain prevails, it could become more difficult and expensive for gas companies to place multi-acre Marcellus well pads.

David McMahon, a lawyer who co-founded the West Virginia Surface Owners’ Rights Organization, filed the lawsuit last week in Marion County Circuit Court. Cain is suing XTO Energy, a division of Exxon Mobil, and Glenville-based Waco Oil and Gas.

The lawsuit argues XTO can’t take over up to 36 acres of Cain’s 105-acre property just to put in Marcellus shale wells. The plans make Cain, a 61-year-old farmer and crane operator, "heart sick," McMahon said in a telephone interview last week.

Cain bought the land in 1989 to eventually give to his children. But he only owns the top of the land – more than a century ago, the mineral rights had been sold off.

The law gives mineral owners the right to come on a surface owner’s land to get at coal, gas or oil beneath. Cain doesn’t dispute that companies can use his land to get gas from beneath his 105 acres or even from the other 33 acres near him that were part of an original 138-acre tract.

But Cain argues the law doesn’t give XTO or Waco the right to use his land as staging area for several large well pads that will drain gas from hundreds and hundreds of acres around his property that the companies have the mineral rights to.

The companies "do not have any rights at all to use his surface to drill horizontal wells to, or to explore for or produce gas from, any neighboring mineral tracts," the lawsuit reads.*

*Charleston Daily Mail (Jul 5, 2011) – Property, mineral rights in conflict