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

  • As the law in WV stands now, A mineral rights owner or lessee can invade your surface property, knock down your home and put you out on the street. This is a legacy of the Big Coal era, wherein citizens were treated like serfs, and still are, in the southern part of the state, where you have “mountain top removal.” A victory for the aggrieved in this case will go far beyond gas extraction, so look for a deal.

  • I think there should be a hundred year limit on mineral rights after that period the mineral rights should go back to the land owner.   Big out of state company came into West Virginia so many years ago few remember and in most cases bought these rights off  desperalty poor land owners. Many, many land owner were taken advantage of but those stories are long lost because so much time has elapsed.  I live on Browning Lambert Mountain, in Mercer county, West Virgina, the land here lays full of abandoned strip mines from the forty’s.  When you see them it is just almost hard to believe that big company’s were able to come in here and do this to the property and just leave it, what a mess high walls and water ponds full of mosquitos.   There is a very old story or maybe just a legend on our mountain of a man that lived not far from my house who refused to sell his mineral rights to a large company and they actually killed him over it!  This story is old and dim no names are known only the general location.  It should be researched . Where West Virginia’s citizens acturally coherst with threats into selling there minteral rights?  The stories are old a many our lost but more reseach should be done on this subject.   I own land that has been in my family for many generations, my question would be the same as many other land owners, who owns my mineral rights and when were they sold??   I say give the mineral rights back to West Virginia citizens!

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