                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-2406


DEWEY TEEL; GAY TEEL,

                Plaintiffs - Appellants,

          v.

CHESAPEAKE APPALACHIA, LLC,

                Defendant - Appellee.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.     Frederick P. Stamp,
Jr., Senior District Judge. (5:11-cv-00005-FPS)


Submitted:   September 30, 2013             Decided:   October 17, 2013


Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Isak J. Howell, LAW OFFICE OF ISAK HOWELL, Lewisburg, West
Virginia; Joseph M. Lovett, Lewisburg, West Virginia, for
Appellants.   Timothy M. Miller, Joseph K. Merical, ROBINSON &
MCELWEE, PLLC, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                  Dewey and Gay Teel (collectively the Teels) appeal the

district court’s order granting summary judgment to Chesapeake

Appalachia, LLC (Chesapeake), on their claim of trespass under

West Virginia common law arising from Chesapeake’s construction

of natural gas wells on a portion of the Teels’ property. ∗                                    The

issues          the    Teels    raise     are    indistinguishable          from       those    we

recently considered in Whiteman v. Chesapeake Appalachia, LLC,

__   F.3d        __,    2013    WL   4734969      (4th     Cir.    Sept.    4,    2013).        We

affirm.

                  Whiteman explained that “a claim for trespass under

West Virginia common law can only lie if one’s entry upon the

land       of    another—or       one’s     leaving      a   thing    upon       the    land   of

another—is            without     lawful        authority.”          Whiteman,         2013    WL

4734969,          at     *3     (internal       quotation         marks    omitted).           In

situations, like here, where a property’s surface and mineral

estates          have    been    severed,       and   in     the    absence      of    contrary

language         in     the    severance    deed,     the    lawful       authority      of    the

mineral estate owner to enter and burden the surface estate is

implied and limited to activities that are reasonably necessary

for the exploitation of the mineral rights.                           Id. at *4-*7.            The


       ∗
       The Teels voluntarily dismissed the remainder of their
claims with prejudice.



                                                  2
reasonable    necessity          analysis    is    fact-specific,    and    “what    is

necessary is a fluid concept that must be determined on a case

by case basis.”          Id. at *4.        Accordingly, when a mineral estate

owner     seeks     to     use     the    corresponding      surface       estate   to

facilitate mineral extraction, “it must be demonstrated . . .

that the [use] is reasonably necessary for the extraction of the

mineral” and does not substantially burden the surface estate.

Id. at *6 (internal quotation marks omitted).                      Where, as here,

the surface owner claims trespass based on the mineral estate

owner’s activities, the burden is on the surface owner to show a

lack of reasonable necessity or a substantial burden.                         Id. at

*7-*8.

            As    a      threshold       matter,    the   Teels    argue    that    the

district court erred by examining Chesapeake’s activities only

for reasonableness.           As in Whiteman, however, we conclude that

the district court applied the correct standard and did not err

in looking to relevant case law from courts in other districts.

Id. at *9-*10 & n.17.                Similarly, there is no merit in the

Teels’ suggestion that the district court improperly examined

West     Virginia        statutes    and     regulations      to    inform     itself

regarding the practices of the state’s oil and gas industry and,

thereby, the reasonable necessity of Chesapeake’s actions.                          Id.

at *10.



                                             3
              Turning to the sufficiency of the Teels’ evidence to

survive summary judgment, we conclude that Whiteman controls.

As   in    Whiteman,     the     Teels’     generalized     evidence       regarding

Chesapeake’s mining operations in dissimilar locations and at

times subsequent to the events at issue here does not satisfy

the fact-intensive and case-specific inquiry into the reasonable

necessity of Chesapeake’s actions on the Teels’ property.                           Id.

at   *8-*9.      The     Teels    also    have   failed     to    muster    evidence

plausibly      suggesting       that   Chesapeake’s       operations       impose     a

substantial burden on their property.             Id. at *8.

              Accordingly, we affirm the award of summary judgment

to Chesapeake.         We deny as moot Chesapeake’s motion to dismiss

the appeal.       We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

before    this   Court    and    argument     would   not   aid    the   decisional

process.

                                                                            AFFIRMED




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