         IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                  January 2019 Term
                                  _______________

                                    No. 17-0968                           FILED
                                  _______________                      June 5, 2019
                                                                        released at 3:00 p.m.
                                                                    EDYTHE NASH GAISER, CLERK
                         EQT PRODUCTION COMPANY,                    SUPREME COURT OF APPEALS
                                                                         OF WEST VIRGINIA
                           Petitioner, Defendant Below

                                         v.

                         MARGOT BETH CROWDER and
                               DAVID WENTZ,
                          Respondents, Plaintiffs Below

        ________________________________________________________

                 Appeal from the Circuit Court of Doddridge County
                    The Honorable Timothy L. Sweeney, Judge
                             Civil Action No. 14-C-64

                                    AFFIRMED

        ________________________________________________________

                             Submitted: March 12, 2019
                                Filed: June 5, 2019

Nicolle R. Snyder Bagnell, Esq.               David L. Grubb, Esq.
Lucas Liben, Esq.                             Kristina Thomas Whiteaker, Esq.
Reed Smith LLP                                The Grubb Law Group
Pittsburgh, Pennsylvania                      Charleston, West Virginia
Counsel for the Petitioner                    David McMahon, Esq.
EQT Production Company                        Charleston, West Virginia
                                              Counsel for the Respondents Margot Beth
                                              Crowder and David Wentz
George A. Patterson, III, Esq.           John F. McCuskey, Esq.
Evan G. Conard, Esq.                     Marc F. Mignault, Esq.
Bowles Rice LLP                          Shuman, McCuskey & Slicer, PLLC
Charleston, West Virginia                Charleston, West Virginia
Counsel for Amicus Curiae                Counsel for Amicus Curiae
Independent Oil and Gas Association of   West Virginia Farm Bureau
West Virginia, Inc.
                                         Bradley Ward Stephens, Esq.
                                         Morgantown, West Virginia
                                         Counsel for Amicus Curiae
                                         West Virginia Surface Owner’s Rights
                                         Organization


JUSTICE HUTCHISON delivered the Opinion of the Court.
                             SYLLABUS BY THE COURT

              1.     “A circuit court’s entry of summary judgment is reviewed de novo.”

Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).


              2.     “Generally, findings of fact are reviewed for clear error and

conclusions of law are reviewed de novo. However, ostensible findings of fact, which

entail the application of law or constitute legal judgments which transcend ordinary factual

determinations, must be reviewed de novo.” Syl. Pt. 1, in part, State ex rel. Cooper v.

Caperton, 196 W.Va. 208, 470 S.E.2d 162 (1996).


              3.     “An encroachment by one person on the land of another is a trespass,

although the damage may be negligible.” Syl. Pt. 2, Hark v. Mountain Fork Lumber Co.,

127 W.Va. 586, 34 S.E.2d 348 (1945).


              4.     “The owner of the mineral underlying land possesses as incident to

this ownership the right to use the surface in such manner and with such means as would

be fairly necessary for the enjoyment of the mineral estate.” Syl. Pt. 1, Squires v. Lafferty,

95 W.Va. 307, 121 S.E. 90 (1924).


              5.     A mineral owner or lessee has an implied right to use the surface of a

tract in any way reasonable and necessary to the development of minerals underlying the

tract. However, a mineral owner or lessee does not have the right to use the surface to

benefit mining or drilling operations on other lands, in the absence of an express agreement

with the surface owner permitting those operations.

                                              i
HUTCHISON, Justice:

              Plaintiffs Margot Beth Crowder and David Wentz own the surface of land in

Doddridge County, West Virginia. Defendant EQT Production Company (“EQT”) holds

a century-old lease that allows EQT to drill wells to extract oil and gas from beneath the

plaintiffs’ surface estate. The plaintiffs brought this lawsuit to challenge EQT’s use of

their surface estate to drill horizontal wells that extend under neighboring properties so that

EQT can extract natural gas from beneath those properties. The plaintiffs contend that

EQT’s lease does not allow it to use their surface estate to extract oil and gas from

neighboring mineral estates. Hence, the plaintiffs assert EQT is trespassing on their surface

tracts, to the extent it is drilling for and removing minerals from neighboring properties.


              The Circuit Court of Doddridge County agreed with the plaintiffs and entered

an order granting partial summary judgment, finding EQT trespassed to the extent it used

the plaintiffs’ surface lands to conduct operations under neighboring mineral estates. A

jury subsequently awarded the plaintiffs $190,000.00 in damages. EQT appeals the circuit

court’s partial summary judgment order and the jury’s damage award.


              For the reasons set forth below, we affirm the circuit court’s order and the

jury’s award of damages.1




              1
               We are grateful to have received amicus curiae briefs from the Independent
Oil and Gas Association of West Virginia, the West Virginia Surface Owner’s Rights
Organization, and the West Virginia Farm Bureau. These well-written briefs, combined

                                              1
                         I. Factual and Procedural Background

              Ownership of the plaintiffs’ surface tracts traces back to Joseph L. and Bell

Carr who, in 1901, owned a 351-acre tract in Doddridge County, West Virginia. The Carrs

owned the “Carr Tract” in fee, ad coelum. “The common law rule . . . is that a land owner
                                           2




with a fee simple title owns everything over the land and under it to the center of the earth.

This rule extends to the minerals, be they solid (like coal), fluid or fugacious minerals (like

oil and gas).” Faith United Methodist Church & Cemetery of Terra Alta v. Morgan, 231

W.Va. 423, 429-30, 745 S.E.2d 461, 467-68 (2013).


              In August 1901, the Carrs leased the 351 acres of oil and gas below the Carr

Tract to the predecessors of EQT. The lease agreement states that EQT’s predecessor had

a lease “for the sole and only purpose of mining and operating for oil and gas, and of laying

pipe lines and building tanks, stations and structures thereon, to take care of said

products[.]” The lease was to last “as long thereafter as oil or gas . . . is produced

therefrom[.]” The parties agree that this lease remains in effect today.




with the excellent briefs and advocacy of the parties, greatly assisted the Court in resolving
the questions presented.
              2
               The “ad coelum” doctrine comes from the Latin phrase cujus est solum ejus
est usque ad coelum et ad inferos, which translated means, “to whomever the soil belongs
owns also to the sky and to the depths” or “for whoever owns the soil, it is theirs up to
Heaven and down to Hell.” Danielle Quinn, A Fracking Fragile Issue: Courts Continue
to Tiptoe around Subsurface Trespass Claims, 27 Villanova Env.L.J. 1, 6 (2016). See
Drummond v. White Oak Fuel Co., 104 W.Va. 368, 375, 140 S.E. 57, 59 (1927) (applying
the ad coelum maxim); Dolan v. Dolan, 70 W.Va. 76, 79, 73 S.E. 90, 91 (1911) (same).

                                               2
              Until 1936, the Carrs and their successors in title owned the entire 351-acre

tract in fee (subject, of course, to the 1901 oil and gas lease). Then, the owner of the Carr
                                                                              3
Tract decided to split the surface from the mineral estate beneath the tract. In November

1936, the then-owner of the Carr Tract, R.L. McCulty, conveyed to Grace Lowther “the
                                4
surface only” of the Carr Tract. Mr. McCulty retained the right to the oil and gas royalties

from the 1901 lease, as well as sole ownership of any other minerals beneath the surface.

              By the mid-1970s, Grace Lowther and her successors had partitioned the

surface of the Carr Tract into several smaller parcels. In 1975, one of these parcels, within

the boundaries of the original Carr Tract, was conveyed to the plaintiffs (Mr. Wentz and



              3
                It has long been the law that a property owner may carve a fee-simple estate
into smaller estates:

              The owner of a fee simple title may sever the land into separate
              surface and mineral estates in a number of ways. The owner
              may convey to another ownership in a particular mineral
              underlying the tract (such as all of the coal, oil, gas, uranium,
              silver, or limestone), a seam of one mineral, or all of the
              minerals, while retaining the surface of the tract. Or, the owner
              may convey the surface only; a conveyance of the “surface
              only” in effect reserves all the remaining minerals to the
              grantor. The separate estates that are created may later be
              conveyed, devised, and/or taxed.

Faith United Methodist, 231 W.Va. at 430, 745 S.E.2d at 468 (footnotes omitted).
              4
                It appears that by 1936, the Doddridge County Bank took ownership of the
351-acre tract. The bank failed and its receiver conveyed the entire tract to two individuals:
A.B. Lowther and R.L. McCulty. On November 28, 1936, Mr. Lowther conveyed his
interest to Mr. McCulty. Two days later, Mr. McCulty conveyed “the surface only” of the
tract to Mr. Lowther’s wife, Grace. Mr. McCulty thereafter retained all rights to the
minerals beneath the 351-acre tract.

                                              3
Ms. Crowder). The plaintiffs, who were married, constructed a home on their parcel built

from timber cut on the land, and moved into the home in April of 1977.


              In 2003, the plaintiffs divorced. By several deeds, the plaintiffs partitioned

their surface estate between themselves. Mr. Wentz now owns two parcels and Ms.

Crowder owns one parcel. All three surface parcels are within the bounds of the 351-acre

Carr Tract. Both plaintiffs live in homes on the surface tracts at issue.


              Between 1901 and 1936, and under the 1901 oil and gas lease, EQT’s

predecessors drilled three conventional vertical wells on the surface of the 351-acre tract.5

These vertical wells were designed to pull oil and gas from the rock strata beneath the 351-

acre Carr Tract. After the surface estate was severed from the mineral estate in 1936,

EQT’s predecessors drilled six more conventional vertical wells on the Carr Tract, with the

last being drilled in 1995.


              By 2011, Patty J. and R. Keith Crihfield owned the mineral estate beneath

the Carr Tract, an estate that included the right to royalties from the 1901 oil and gas lease.

Defendant EQT owned the right to drill and operate under the 1901 lease and approached

the Crihfields seeking to modify the lease. On March 11, 2011, the Crihfields signed an

“Amendment of Ratification of Oil and Gas Lease” that allowed EQT to pool and/or unitize




               The record indicates that the wells – drilled in 1910, 1912, and 1916 –
              5


produced both methane natural gas as well as oil, “drip gasoline,” and other hydrocarbons.
Hence, they are referred to as “oil and gas wells.”

                                              4
and combine the rights provided by the 1901 lease with other leases to drill and extract oil
                                   6
and gas under neighboring lands.


              EQT then sought permits to drill modern, horizontal Marcellus shale gas

wells on the plaintiffs’ surface lands. EQT designed the wells to extract gas from a total

area of 3,232 acres, not just the 351 acres beneath the Carr Tract. Modern technology

allowed EQT to initially drill vertically on the plaintiffs’ surface lands, but then curve the

head of the drill and extend the bore of the well horizontally thousands of feet beyond the

Carr Tract and through mineral estates under neighboring properties.7


              In mid-2012, the plaintiffs learned of EQT’s plans to use their surface lands

to extract gas from beneath neighboring properties. On June 18, 2012, a lawyer for the

plaintiffs mailed a letter to EQT stating that EQT had rights to use the plaintiffs’ surface

lands only “as are reasonably necessary to extract the severed minerals from beneath the

Carr tract.” The plaintiffs’ lawyer further advised EQT that it did “not have the right to

burden, damage and otherwise occupy the Crowder/Wentz property for the purpose of

extracting minerals from other mineral tracts.” Finally, the plaintiffs’ lawyer told EQT that



                 The goal of unitization “is to consolidate enough of the interests in a
              6


particular reservoir to allow production to be carried out in the most efficient manner[.]”
Gastar Expl., Inc. v. Contraguerro, 239 W.Va. 305, 307 n.1, 800 S.E.2d 891, 893 n.1
(2017) (quoting James E. McDaniel, Statutory Pooling and Unitization in West Virginia:
The Case for Protecting Private Landowners, 118 W.Va. L. Rev. 439, 455 (2015)).
              7
               The amicus brief from the Surface Rights Owner’s Organization quotes an
EQT statement that, in 2018, EQT’s Marcellus shale wells would have “an average lateral
length of 11,800 feet” – a distance of more than two miles from the well pad.

                                              5
it did not have lease rights or the plaintiffs’ permission to enter their surface lands, and

warned EQT: “Do not enter the Crowder/Wentz property for oil and gas operations.” EQT

ignored this letter.


               In February 2013, EQT entered onto the plaintiffs’ surface parcels (and

adjacent parcels in the Carr Tract), built various two-lane roads, and cleared about forty-

two acres. EQT also constructed a 19.7-acre well pad. After sixteen months of work, by

June 2014, EQT had drilled nine new wells on the plaintiffs’ land, and had drilled some

9.7 miles (51,470 feet) of horizontal bores under neighboring properties. EQT claims that

37.5% of the horizontal bores were in the minerals beneath the Carr Tract, and the

remaining 62.5% extended into minerals beneath neighboring tracts.8


               The plaintiffs filed this lawsuit against EQT on November 26, 2014, and

alleged that EQT had trespassed on their surface lands. The plaintiffs acknowledged that

EQT had the right to enter and reasonably use their land under the 1901 lease, but only to

extract gas from the mineral estate beneath their surface lands.9 Specifically, the plaintiffs


               8
                 One of the nine wells was permitted to have an 8,450 foot horizontal bore.
The circuit court also noted that drilling one horizontal well required 10,900,000 gallons
of water, all of which EQT trucked to the site. In total, drilling all nine wells required some
95,000,000 gallons of water. Additionally, the court noted that drilling the last four
conventional vertical wells on the Carr Tract required a total of 305,000 pounds of sand;
EQT trucked in 1,852,811 pounds of sand to drill the nine horizontal wells.

                The plaintiffs also admitted that, under the “rule of capture,” EQT could use
               9


their surface lands to extract gas that migrates naturally into the mineral tract beneath their
land. The common law doctrine of capture has been defined thusly:


                                              6
contended that, “EQT did not have the right to enter on, burden, damage, or otherwise

occupy Plaintiffs’ surface lands at all for the purpose of extracting minerals from other,
                               10
neighboring mineral tracts.”


              Following discovery, the plaintiffs made a motion for partial summary

judgment. The plaintiffs asserted that there was no genuine issue of material fact that EQT

had trespassed on their surface lands to not only drill into the mineral strata underlying

their lands, “but to drill into, frac, produce and transport gas from neighboring mineral

tracts.”


              Defendant EQT responded with its own motion for summary judgment. EQT

argued that because (1) about 37.5% of the horizontal wellbore was through gas-bearing

shale beneath the Carr Tract, and (2) the 1901 Carr oil and gas lease was unitized in 2011




              [Oil and gas] belong to the owner of the land, and are part of
              it, so long as they are on it or in it or subject to his control; but
              when they escape and go into other land, or come under
              another’s control, the title of the former owner is gone. If an
              adjoining owner drills his own land, and taps a deposit of oil or
              gas, extending under his neighbor’s field, so that it comes into
              his well, it becomes his property.

Brown v. Spilman, 155 U.S. 665, 670 (1895). See generally, Gain v. S. Penn Oil Co., 76
W.Va. 769, 86 S.E. 883 (1915); Boggess v. Milam, 127 W.Va. 654, 34 S.E.2d 267 (1945).
              10
                The plaintiffs also asserted two other claims. First, the plaintiffs asserted
a claim for trespass on a different theory: that the horizontal production techniques
employed by EQT were not contemplated by the parties to the 1901 lease or the parties to
the 1936 severance of the surface from the mineral estate. Second, the plaintiffs alleged a
claim for unjust enrichment. The circuit court did not base its judgment on either of these
two claims, so we do not consider them.
                                               7
with oil and gas leases on neighboring lands, then EQT’s actions were proper. EQT further

asserted that horizontal drilling is reasonable and necessary to the production of natural gas

in the shale formations under the Carr Tract; accordingly, it was reasonable and necessary

to extend that drilling under neighboring properties to produce natural gas from beneath

those properties.


              In an order dated February 19, 2016, the circuit court found as a matter of

law that EQT had trespassed on the plaintiffs’ surface lands, and so granted the plaintiffs’

motion and denied EQT’s motion. The circuit court found that EQT had the implied right

to use the plaintiffs’ surface lands “for well pads, roads, and pipelines to drill into, and

produce gas from, but only from, the mineral tract” underlying the plaintiffs’ lands.

However, the circuit court found EQT had no express or implied right to enter or use the

plaintiffs’ surface lands to drill into and produce gas from neighboring mineral tracts.

Hence, the circuit court ruled that EQT was liable to the plaintiffs for trespass.11


              The parties proceeded to a jury trial on September 5, 2017, to determine the

plaintiffs’ damages on their trespass claim. After three days of trial, the jury returned a

verdict awarding the plaintiffs damages against EQT. The jury awarded Mr. Wentz




              11
                On July 6, 2017, the circuit court granted the plaintiffs’ second motion for
partial summary judgment, and found EQT liable to the plaintiffs for unjust enrichment.
The court then required the plaintiffs to elect between seeking to recover under either their
claim for trespass or their unjust enrichment claim. The plaintiffs subsequently chose to
proceed under their claim for trespass and abandoned their unjust enrichment claim.
                                              8
$180,000 and Ms. Crowder $10,000. The circuit court entered a judgment order on

September 26, 2017.


              Defendant EQT now appeals the circuit court’s February 19, 2016, order

granting partial summary judgment to the plaintiffs, and the court’s September 26, 2017,

judgment order.


                                 II. Standard of Review

              EQT asserts that the circuit court erred in granting partial summary judgment

and holding EQT liable to the plaintiffs for trespass as a matter of law. This Court reviews

a circuit court’s entry of summary judgment de novo. See Syl. Pt. 1, Painter v. Peavy, 192

W.Va. 189, 451 S.E.2d 755 (1994) (“A circuit court’s entry of summary judgment is

reviewed de novo.”). Additionally, EQT challenges the circuit court’s entry of judgment

on the jury’s verdict, primarily because that verdict was founded upon the court’s summary

judgment ruling. “Generally, findings of fact are reviewed [by this Court] for clear error

and conclusions of law are reviewed de novo. However, ostensible findings of fact, which

entail the application of law or constitute legal judgments which transcend ordinary factual

determinations, must be reviewed de novo.” Syl. Pt. 1, in part, State ex rel. Cooper v.

Caperton, 196 W.Va. 208, 470 S.E.2d 162 (1996).


                                      III. Discussion

              EQT argues that it is long-standing law in West Virginia that a mineral owner

(or its lessee) can make any use of the surface that is “reasonably necessary” to develop


                                             9
the minerals. Accordingly, EQT asserts that the only question the circuit court should have

addressed is whether a mineral owner’s (or its lessee’s) use the surface of a tract to develop

both the minerals below the surface and the minerals under neighboring tracts is

“reasonably necessary.” EQT contends that it produced substantial evidence before the

trial court showing that its actions on the plaintiffs’ surface lands were reasonably

necessary, and that the plaintiffs failed to rebut that evidence. Accordingly, EQT argues

that the circuit court’s grant of summary judgment to the plaintiffs, and the jury’s verdict

in favor of the plaintiffs, must be reversed.


              The plaintiffs, however, contend that the circuit court was correct in holding

that EQT had no explicit or implicit right to use the plaintiffs’ surface lands to extract

minerals from neighboring tracts. In other words, the plaintiffs take the position that, as a

matter of law, EQT trespassed on their surface lands to the extent it conducted operations

on neighboring tracts. Furthermore, plaintiffs assert it is irrelevant whether EQT’s actions

were reasonably necessary to develop the minerals under neighboring tracts because EQT

had no right to develop those minerals from the plaintiffs’ surface lands in the first place.

On this record, we agree with the plaintiffs.


              This Court has defined “trespass” as “an entry on another man’s ground

without lawful authority, and doing some damage, however inconsiderable, to his real

property.” Hark v. Mountain Fork Lumber Co., 127 W.Va. 586, 591-92, 34 S.E.2d 348,




                                                10
                                                                “In every case where one man
                                                           12
352 (1945) (quoting 3 Blackstone’s Commentaries 209).

has a right to exclude another from his land, the common law encircles it, if not inclosed

already, with an imaginary fence. And to break such imaginary fence, and enter the close

of another, is a trespass[.]” Haigh v. Bell, 41 W.Va. 19, 21, 23 S.E. 666, 667 (1895)

(citation omitted). “A trespasser who does so intentionally or recklessly with intent to ‘take

an unconscientious advantage of his victim’ commits a willful or bad faith trespass and is

liable for damages in a greater amount than an innocent trespasser.” Reynolds v. Pardee

& Curtin Lumber Co., 172 W.Va. 804, 809, 310 S.E.2d 870, 876 (1983) (quoting Pan Coal

Co. v. Garland Pocahontas Coal Co., 97 W.Va. 368, 381, 125 S.E. 226, 231 (1924)).


              The parties agree that the owner of a mineral estate has the implicit right to

use the surface estate overlying the minerals, in a reasonable manner, to access and remove

those minerals. “The owner of the mineral underlying land possesses as incident to this

ownership the right to use the surface in such manner and with such means as would be

fairly necessary for the enjoyment of the mineral estate.” Syl. Pt. 1, Squires v. Lafferty, 95

W.Va. 307, 121 S.E. 90 (1924). The severance of a surface estate from a mineral estate

“gives rise to an implied easement in the mineral owner to use the surface” because

“without rights of surface use the underlying severed minerals would be worthless.” Tara




                This quote was adopted by the Court as Syllabus Point 2: “An
              12


encroachment by one person on the land of another is a trespass, although the damage may
be negligible.” Hark, 127 W.Va. at 586, 34 S.E.2d at 348.

                                             11
Righetti, Contracting for Sustainable Surface Management, 71 Ark. L. Rev. 367, 368-69

(2018).


              Because this right of the mineral owner is implied into the parties’ deed or

lease, the right is limited only to uses of the surface that are demonstrably reasonable,

necessary, and which can be exercised without substantial burden on the surface owner.

As this Court has stated:

              [W]here implied as opposed to express rights are sought, the
              test of what is reasonable and necessary becomes more
              exacting, since the mineral owner is seeking a right that he
              claims not by virtue of any express language in the mineral
              severance deed, but by necessary implication as a correlative
              to those rights expressed in the deed. In order for such a claim
              to be successful, it must be demonstrated not only that the right
              is reasonably necessary for the extraction of the mineral, but
              also that the right can be exercised without any substantial
              burden to the surface owner.

Buffalo Mining Co. v. Martin, 165 W.Va. 10, 18, 267 S.E.2d 721, 725-26 (1980).


              When a surface owner complains that the mineral owner has exceeded its

implied rights, it is the duty of the court to weigh whether the mineral owner has invaded

the surface owner’s rights:

              In a case where there is a dispute of fact, the jury should find
              the facts, and from such finding of facts by the jury it is the
              duty of the court to determine whether the use of the surface
              by the owner of the minerals has exceeded the fairly necessary
              use thereof, and whether the owner of the minerals has invaded
              the rights of the surface owner, and thus exceeded the rights
              possessed by the owner of such minerals.




                                             12
Adkins v. United Fuel Gas Co., 134 W.Va. 719, 724, 61 S.E.2d 633, 636 (1950). See also,

Syl. Pt. 2, in part, Porter v. Mack Mfg. Co., 65 W.Va. 636, 64 S.E. 853 (1909) (“The owner

of the surface cannot obstruct the mineral owner from a use of the surface for a tramway

or other means of transportation fairly useful and necessary.”); Thornsbury v. Cabot Oil &

Gas Corp., 231 W.Va. 676, 681–82, 749 S.E.2d 569, 574–75 (2013) (“[T]he general,

common law rule in West Virginia is that a mineral owner or developer has the right to

enter the overlying surface estate, but only to do that which is ‘fairly necessary’ or

‘reasonably necessary’ for the extraction of the mineral.”).13


              The plaintiffs argue that the implied right of a mineral owner to use the

surface to extract the minerals in a reasonable and necessary way applies only to the

minerals underneath the specific surface tract. Conversely, the plaintiffs argue that there

is no implied right to use a surface tract to extract minerals from neighboring tracts. Based

upon our review of the law on this question, we agree with the plaintiffs.


              This Court has never had occasion to directly address the question raised by

the parties. However, precedent from this Court has repeatedly noted that a mineral owner

does not have an implied right to use the overlying surface lands to benefit mining or


              13
                 This right by the mineral owner to enter and use the surface is not unfettered
and, in recent years, courts have emphasized that the right must be balanced against the
rights of the surface owner. See Faith United Methodist, 231 W.Va. at 440, 745 S.E.2d at
478 (Ownership of the surface comes with “the right to use the surface for such ordinary
uses as may be made thereof, with the right to use as much of the subsurface as may be
necessary for the customary and ordinary uses of the surface, just as the owner of the
subsurface estate has a correlative right to use the surface in order to develop the subsurface
rights.”).
                                              13
drilling on other property. This Court has said that while a mineral owner has an implied

right to necessary use of the surface, that rule “applies to the mining and production of

minerals from a given tract of land, and does not contemplate the use of such tract in

connection with the production of minerals from another and different tract.” King v. S.

Penn Oil Co., 110 W.Va. 107, 110, 157 S.E. 82, 84 (1931). See also Fisher v. W.Va. Coal

& Transp. Co., 137 W.Va. 613, 620, 73 S.E.2d 633, 638 (1952) (“[i]n the absence of a

right arising out of contract,” a mineral lessee “has no right to use the surface” of a leased

tract “for transporting and processing coal admittedly mined from lands adjoining” the

leased tract); Syl. Pt. 7, Armstrong v. Maryland Coal Co., 67 W.Va. 589, 69 S.E. 195, 196

(1910) (The purchaser of land “may not, as a condition precedent to the execution of the

contract, demand as mining rights the right to remove over, through and under the lands in

which the coal conveyed is situated coal thereafter acquired by the purchaser[.]”); Findley

v. Armstrong, 23 W.Va. 113 (1883) (Seller of land could not prepare deed different from

parties’ contract that added right for seller “to remove on and through this tract of land the

coal of coterminous tracts of land[.]”).


               A review of other jurisdictions shows “the contemporary position is that the

mineral owner is not entitled to use the surface for the benefit of other mineral ventures

without express permission.” Donald N. Zillman, J. Russell Tyler, Jr., The Common Law

of Access and Surface Use in Mining, 1 J. Min. L. & Pol’y 267, 288 (1985).14 As one high


              14
               See Roberts Ranch Co. v. Exxon Corp., 43 F.Supp.2d 1252, 1257 (W.D.
Okla. 1997) (there was neither express language in the lease nor an implied easement

                                             14
giving the mineral lessee the right to free use of natural gas from the lease to operate an
off-lease gas processing facility); Farragut v. Massey, 612 So.2d 325, 328 (Miss. 1992)
(“The right of the mineral owner to use and occupy the land is restricted to operations for
exploring for and extracting minerals from that land. Thus, the land cannot be used . . . to
dispose of salt water from other land.” Quoting 1 E. Kuntz, A Treatise on the Law of Oil
and Gas, § 3.2 at 87–88 (1987)); Delhi Gas Pipeline Corp. v. Dixon, 737 S.W.2d 96, 98
(Tex. App. 1987) (Mineral lessee has “the right to use as much of the [surface] premises as
is reasonably necessary to produce and remove the oil, gas, and other minerals,” including
laying pipeline; however, lessee does not “have the right to transport any other gas” in the
pipeline from other properties, absent an express “easement from the owner of the surface
estate.”); TDC Eng’g, Inc. v. Dunlap, 686 S.W.2d 346, 348 (Tex. App. 1985) (“[S]ince the
. . . leases cover different tracts of land, they do not give the lessee or its operator the right
to dispose of salt water produced from some of the leases on land covered by a different
lease.”); Robinson v. Robbins Petroleum Corp., 501 S.W.2d 865, 868 (Tex. 1973)
(“Robinson, as owner of the surface, is entitled to protection from uses thereof, without his
consent, for the benefit of owners outside of and beyond premises and terms of the
Wagoner lease. . . . Robinson is entitled to recover the value of that portion of the salt water
which has been consumed for the production of oil for owners of lands outside the Wagoner
lease[.]”); Tutwiler v. Etheredge, 231 So.2d 93, 94-95 (Ala. 1970) (It was improper for
owner of mineral rights to cut road across plaintiffs’ land to work on adjacent tract. “It has
long been the law in this state that one who acquires mineral rights under a tract of land
does not acquire thereby the right to use that land to mine adjacent land.”); Groves v.
Terrace Min. Co., 340 S.W.2d 708, 711 (Mo. 1960) (“[T]he grant or reservation of the
mineral estate, with the implied or expressly stated right to use the surface for the removal
and processing of minerals taken from the land did not carry with it the right to use the
surface estate for the processing of minerals obtained from other lands.”); Ross Coal Co.
v. Cole, 249 F.2d 600, 605 (4th Cir. 1957) (“Extending the implied right to operate a tipple
for the removal of coal from adjacent lands would materially increase the burden upon the
servient estate. Unless the deed, itself, provided such right, it is not to be implied.”); Wise
v. Tabor, 206 P.2d 970, 972 (Okla. 1949) (The defendant had the exclusive right to the use
of the surface of the land, and the oil and gas lessee’s use of the surface to store oil produced
elsewhere violated defendant’s rights.); Bourdieu v. Seaboard Oil Corp. of Delaware, 100
P.2d 528, 534 (Cal. App. 1940) (“The filling of gulches and ravines on appellant’s premises
with oil and waste products from oil wells outside of appellant’s land” was beyond the
mineral lease, which gave the mineral lessee only the right to remove minerals from the
appellant’s land.); Schmidt v. Schmidt, 1 N.E.2d 419, 425 (Ill. App. Ct. 1936) (“In the
absence of an express grant, we are clearly of the opinion that the right to use the surface
of tract No. 1 for the purpose of hoisting, transporting, loading, and unloading the coal
underlying tract No. 2 does not exist.”); Syllabus Point 3, Pure Oil Co. v. Chisholm, 75
P.2d 464 (Okla. 1936) (“Where an oil and gas producer operates oil and gas wells upon
two separate and independent properties, he may not permit salt water from one of said

                                               15
court said, “[i]t is well settled in Kentucky, as elsewhere, that in the absence of an express

agreement, the mineral owners or lessees cannot use the surface for the production of

minerals from other lands.” Wiser Oil Co. v. Conley, 346 S.W.2d 718, 722 (Ky. 1960).

One of the seminal cases on this question is Russell v. Texas Company, 238 F.2d 636, 642

(9th Cir. 1956), where the court held:

              It is a well established principle of property law that the right
              to use the surface of land as an incident of the ownership of
              mineral rights in the land, does not carry with it the right to use
              the surface in aid of mining or drilling operations on other
              lands.

Stated simply, “[t]he mineral owner’s [implied] right of surface use does not include the

right to use of the surface in connection with mineral development and production from

other lands, and the mineral owner will be liable in the event of such use.” Steve Ruffatto,

Kemp Wilson, Scrivener’s Concerns in the Creation and Transfer of Severed Mineral and




properties to flow over the lands in the other property without being responsible to the
owner of the second property for any damages which may result therefrom[.]”); Moore v.
Lackey Mining Co., 284 S.W. 415, 417 (Ky. 1926) (Unless a lease or deed authorizes it, no
case stands for “the principle that the coal from adjacent lands might be brought to the
surface through the pits, shafts, or entries from the surface of a given lease and its surface
be used as the dumping ground of the refuse therefrom, and the structures on its surface be
used in mining or loading or marketing such coal.”); Franz Corp. v. Fifer, 295 F. 106, 108
(9th Cir. 1924) (Jury could consider awarding damages when defendant mineral lessee used
plaintiff’s lands to conduct “oil operations on lands adjacent to and in the vicinity of the
lands belonging to plaintiff[.]”); Dietz v. Mission Transfer Co., 25 P. 423, 425 (Cal. 1890)
(A mineral deed’s implied right to enter the surface is limited to the land described in the
deed. “To hold that the defendant could enter upon, occupy, and use the land for its
convenience in extracting and removing oils from another and different tract of land, would
be to vary the terms of the deed in a material respect, and make for the parties a new and
different contract. This the courts have no power to do.”).
                                              16
Royalty Interests, 9 Pub. Land L. Rev. 31, 52 (1988). As one legal commentator recently

noted, when examining the law on this question in the context of horizontal drilling:

              While a surface owner has no choice but to allow a mineral
              owner to do what is necessary to reach the minerals directly
              below his surface, the [surface] owner should not be forced,
              without his consent or any additional compensation, to allow
              the [mineral] owner to use his land in order to reach minerals
              that are not directly below his surface.

Jason A. Proctor, The Legality of Drilling Sideways: Horizontal Drilling and Its Future in

West Virginia, 115 W.Va. L. Rev. 491, 519 (2012).


              Finally, scholars have also found it “a rather strict general rule that in the

absence of contractual permission, the holder of the minerals underlying a tract of land will

not be permitted to use the surface thereof in aid of mining operations on adjacent,

adjoining, or other tracts of land.” See W. C. Crais III, Right of owner of title to or interest

in minerals under one tract to use surface, or underground passages, in connection with

mining other tract, 83 A.L.R.2d 665 (1962). Scholars examining the rights of surface

owners and mineral owners have consistently found that a mineral “lessee does not have

the right to use the surface of the premises in aid of drilling operations on other lands.”

William B. Browder, The Dominant Oil and Gas Estate – Master or Servant of the Servient

Estate, 17 Sw. L.J. 25, 46 (1963).15 As one writer on the subject noted:


              15
                See, e.g., Tara Righetti, Contracting for Sustainable Surface Management,
71 Ark. L. Rev. 367, 370-71 (2018) (“Courts have limited the uses permitted under the
implied easement to those that are reasonably necessary to the extraction of the underlying
minerals . . . and are not for the benefit of extra-lateral parcels.”); Bruce M. Kramer,
Horizontal Drilling and Trespass: A Challenge to the Norms of Property and Tort Law, 25

                                              17
              A mineral owner or lessee may impliedly use the surface of a
              tract in any way reasonable to the development of the minerals
              underlying that tract. However, the right to use the surface of
              one tract for the benefit of another tract will not be implied.
              Such unauthorized use will constitute an “excessive user.” The
              surface owner should prevail in enjoining the drilling operation
              in a trespass action or suing for damages based upon the value
              of the unauthorized surface use.

John D. McKinnis, Directional Drilling, Subsurface Trespass, and Conversion, 4 J. Min.

L. & Pol’y 235, 243 (1988).




Colo. Nat. Res. Energy & Envtl. L. Rev. 291, 326 (2014) (“[W]hile a mineral lessee may
have the right to use the surface itself or to convey the implied easement to another party,
it cannot do so where the surface . . . is being used to support mineral extraction activities
off of [the leasehold]. That off-tract use would clearly be an excessive use of the implied
easement.”); Bruce M. Kramer, The Legal Framework for Analyzing Multiple Surface Use
Issues, 44 Rocky Mountain Min. L. Found. J. 273, 317 (2007) (“[T]he overwhelming
majority of cases support the general proposition that in the absence of express language
to the contrary the mineral owner can only use the surface for activities directly related to
its mineral or leasehold estate.”); J.E. Pool, Use of the Surface Fee by the Mineral
Operator, 32 Miss. L.J. 104, 112-113 (1960) (“The use of the surface by the mineral
operator is limited to use for the production of the minerals under the surface and does not,
in the absence of special agreement such as a pooling provision in the lease, extend to
production from beneath other land. This means that the operator may not drill
directionally from his lessor’s land into deposits in which the lessor has no interest and
from the development of which the lessor derives no benefit.”); Thomas Newlon
Chambers, Case Comments, 53 W.Va. L. Rev. 72, 88 (1950) (“In the absence of an express
agreement a coal lessee cannot use the surface owned by his grantor or lessor in producing,
cleaning, marketing, or in any way handling coal produced on the lands of another. Mining
privileges and rights contained in a lease or deed relate to coal to be produced from the
land covered by the instrument and none other.”). But see Lori A. Dawkins, Allison J.
Farrell, Lauren K. Turner, Surface Use in the Age of Horizontal Drilling: Will Horizontal
Wells Be Considered a “Reasonably Necessary” Use of the Surface?, 88 N.D. L. Rev. 595,
608 (2012) (Acknowledging that while “some courts have recognized that the implied
easement of sur[f]ace use generally does not extend to support activities benefiting off-
leasehold properties,” advocating that when “either voluntary or compulsory pooling or
unitization occurs,” courts should not limit “the use of the surface to the mineral tract
directly beneath that surface” because to do so would frustrate “progress” and the
“discovery and production” of natural gas).
                                             18
              We therefore hold that a mineral owner or lessee has an implied right to use

the surface of a tract in any way reasonable and necessary to the development of minerals

underlying the tract. However, a mineral owner or lessee does not have the right to use the

surface to benefit mining or drilling operations on other lands, in the absence of an express

agreement with the surface owner permitting those operations.             Stated differently,

“Although the owner [or lessee] of the mineral estate hypothetically owns to the deepest

depths of the earth, horizontally the ad coelum doctrine is limited to the interior of the

surface boundaries from which the mineral estate is derived.” Christopher S. Kulander, R.

Jordan Shaw, Comparing Subsurface Trespass Jurisprudence – Geophysical Surveying

and Hydraulic Fracturing, 46 N.M. L. Rev. 67, 73 (2016).


              In the instant case, EQT asserts that the 1901 oil and gas lease gives it the

explicit right to enter the plaintiffs’ lands for the “purpose of mining and operating for oil

and gas, and of laying pipe lines and building tanks, stations and structures thereon, to take

care of said products.” The 1901 lease, however, clearly has application only to the

premises described in the lease: the 351-acre Carr Tract. The Carrs plainly intended for

their 1901 lease to limit EQT (and its predecessors) to mining and operating for oil and gas

to remove minerals beneath the surface of the Carr Tract. “[C]ourts cannot rewrite a

contract or deed that plainly expresses the parties’ intent,” Faith United Methodist, 231

W.Va. at 444, 745 S.E.2d at 482, and we decline to rewrite the 1901 lease to expand EQT’s

rights.




                                             19
              Moreover, when the plaintiffs’ surface estate was severed from the mineral

estate in 1936, the surface estate was subject only to the terms of the 1901 lease. The deeds

severing the surface and mineral estates contain no language altering the burden imposed

on the surface under the 1901 lease, and no express language allowing the surface estate to

be used in the extraction of hydrocarbons from neighboring lands.           After the 1936

severance, the mineral owner and leaseholder only had the rights, explicit and implicit, to

use the surface to reasonably explore for and extract minerals from the Carr Tract. We

therefore also decline to rewrite the 1936 severance deed to alter EQT’s rights and the

surface owners’ burdens.


              EQT, however, contends that it modified the 1901 lease in 2011, when the

current owners of the mineral estate signed an amendment allowing EQT to “pool” or

“unitize” the Carr mineral estate with surrounding mineral tracts. EQT argues that this

2011 modification to the lease changed the rights attendant to the surface estate, an estate

that split from the mineral estate in 1936. We reject this argument because, in 2011, the

owners of the mineral estate no longer owned the right to use the surface estate for

exploration on and production from neighboring tracts. Because the mineral estate was

severed from the surface estate in 1936, that right belonged to the plaintiffs or, more

specifically, was a right attached to their surface estate. Hence, the mineral owners could

not have conveyed that right to EQT in the 2011 amendment.


              We end with EQT’s central argument, which is that its method of

horizontally drilling wells from the plaintiffs’ surface lands was reasonable and necessary

                                             20
to develop the natural gas beneath neighboring lands. We reject this argument because,

as the plaintiffs established, EQT had no right to be upon the Carr Tract to explore and drill

for natural gas beneath neighboring lands. This Court will not imply a right to use a surface

estate to conduct drilling or mining operations under neighboring lands; as noted above,

the right must be expressly obtained, addressed, or reserved in the parties’ deeds, leases, or

other writings.


              In sum, under the 1901 lease, EQT only had a right to conduct operations on

the plaintiffs’ surface lands to explore for and extract oil and gas from beneath the Carr

Tract. EQT had neither an express agreement with the plaintiffs (or their predecessors) nor

an implicit right to use the plaintiffs’ surface lands to benefit its drilling operations on

neighboring lands. EQT has identified no genuine issue of material fact on this question.

Accordingly, the circuit court was correct to grant the plaintiffs’ motion for partial

summary judgment. The record supports the circuit court’s finding that EQT trespassed

on the plaintiffs’ surface lands to the extent it used those lands to extract minerals from

neighboring properties. The jury’s verdict, and the court’s consequent judgment order, are

therefore proper.


                                      IV. Conclusion

              Our holding today does not challenge or constrain the drilling methods

chosen by the oil and gas industry. The industry has shown that horizontal drilling and

hydraulic fracturing techniques are evolving at a rapid pace and are an economical and

efficient tool for producing hydrocarbons. Our opinion only affirms a classical rule of

                                             21
property jurisprudence: it is trespassing to go on someone’s land without the right to do so.

A mineral owner or lessee has an implicit right to use the overlying surface to access only

the minerals directly below the surface. Using the surface to extract minerals elsewhere,

without the permission of the surface owner, is a trespass. Should the mineral owner or

lessee want to utilize the surface to access minerals under neighboring land, they can

certainly reach a separate agreement with the surface owner.


              A primary “aim of government is to protect property rights, insure the

possession and enjoyment thereof by the owners and thus promote domestic tranquillity

and the general welfare.” State v. McDowell Lodge, No. 112, A.F. & A.M., 96 W.Va. 611,

613, 123 S.E. 561, 563 (1924). To protect property rights, this Court’s goal is to promote

clear and simple rules of land ownership, and “to avoid bringing upon the people

interminable confusion of land titles; instead, we must endeavor to prevent and eradicate

uncertainty of such titles.” Faith United Methodist, 231 W.Va. at 431, 745 S.E.2d at 469

(cleaned up). Our opinion merely restates a bright-line rule founded long ago in the

common law that surface owners and mineral owners (or their lessees) can easily navigate.


              The circuit court’s February 19, 2016, partial summary judgment order and

September 26, 2017, judgment order are supported by the record and must be affirmed.


                                                                                  Affirmed.




                                             22
