                                                                                FILED
No. 17-0126 – Andrews, et al. v. Antero Resources Corporation
             and Hall Drilling, Inc.                                         June 10, 2019
                                                                               released at 3:00 p.m.
                                                                           EDYTHE NASH GAISER, CLERK
WALKER, Chief Justice, concurring:                                         SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA




              I concur with the majority’s decision to affirm the Mass Litigation Panel’s

grant of summary judgment to Respondents Antero Resources Corporation and Hall

Drilling, Inc. I write separately, though, to emphasize what the majority opinion does not

do. The Court does not decide whether Respondents’ activities on Petitioners’ surface

estates created a nuisance. And, the Court does not answer the broader question of whether

the owner of mineral rights underlying Surface Estate A may or may not create a nuisance

on Surface Estate A to develop the minerals below Surface Estate B. The Court does not

decide those issues because this particular case did not present the opportunity to do so.


              Regarding the first issue, the Mass Litigation Panel relied upon principles of

contract and property law to grant summary judgment to Respondents. That left undecided

the question of whether Respondents’ activities on Petitioners’ surface estates created

nuisance conditions. The Panel recognized this distinction and its implication. In its final

order granting summary judgment to Respondents, the Panel stated that because the

summary judgment ruling turned on “Antero’s contractual and property rights,” the Panel

did “not address the issues to which common law private nuisance principles would be

applied” and so did not reach a “conclusion regarding whether Antero’s actions or its

employees’ or contractors’ actions would ‘otherwise meet the legal definition of a

nuisance.’”



                                                 1
               The Court will not decide “a nonjurisdictional question which has not been

decided by the trial court in the first instance.”1 That is the case, here. Because the Panel

decided Respondents’ motions for summary judgment on principles of contract and

property law, it did not decide whether Respondents’ activities on Petitioners’ surface

estates created a nuisance, so the Court cannot, either.


               Moreover, Petitioners did not challenge on appeal the Panel’s decision to

apply contract and property law, rather than principles of nuisance law, in deciding

Respondents’ motions for summary judgment. Instead, they argued that the Panel applied

the wrong contract and property law. For example, in support of their first assignment of

error,2 Petitioners argued that a severance deed does not empower a mineral rights holder

to extract natural gas using technology that the parties to the deed did not contemplate.

That is a contract and property law argument. And, to the extent Petitioners would have

the Court extrapolate the argument that the Panel should have applied nuisance law, not

contract and property law, from Petitioners’ second assignment of error,3 the Court does




       1
           Syl. Pt. 1, in part, Sands v. Sec. Tr. Co., 143 W. Va. 522, 102 S.E.2d 733 (1958).
       2
        Assignment of Error 1. The Panel erred in holding that a mineral severance
deed grants the mineral owner the right to extract natural gas using methods
uncontemplated when the deeds were executed, that are not necessary to the extraction of
the minerals, and that substantially burden the surface owner.
       3
         Assignment of Error 2. The Panel erred in concluding that an owner of mineral
rights underlying a particular property has the right to create a nuisance on the surface of
that tract to develop minerals underlying another property.


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not consider on appeal “issues which are not raised, [or] those mentioned only in passing

but [that] are not supported with pertinent authority . . . .”4


              Finally, the Court does not resolve the second issue5 because Petitioners did

not timely raise it before the Panel. Two weeks after the Panel entered its final order

granting Respondents’ motions for summary judgment, Petitioners moved to alter or

amend that order. In that motion, they presented the new legal argument that

              [Respondents] do not have the legal or contractual right to use
              the surface of [Petitioners’] properties, or to burden the same,
              through activities undertaken by [Respondents] to enjoy
              mineral estates beyond the boundaries of the leases
              encompassing [Petitioners’] properties. * * * Therefore, even
              if [Petitioners] are not able to bring nuisance claims related to
              [Respondents] activities in developing natural gas underlying
              their surface estate[s] [sic], which Plaintiffs’ [sic] dispute,
              [Petitioners] should certainly be able to maintain the portions
              of their nuisance claims that related to [Respondents’]
              activities in developing natural gas underlying other properties,
              which comprise the vast majority of [Petitioners’] claims.



              The Panel denied Petitioners’ motion to alter or amend its final order because

their new legal argument “could have been made by [Petitioners] during the extensive



       4
         Bluestem Brands, Inc. v. Shade, 239 W. Va. 694, 702 n.6, 805 S.E.2d 805, 813 n.6
(2017) (“Furthermore, ‘[a]lthough we liberally construe briefs in determining issues
presented for review, issues which are not raised, and those mentioned only in passing but
are not supported with pertinent authority, are not considered on appeal.’”) (quoting State
v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996)).
       5
        That is, whether the owner of mineral rights underlying Surface Estate A may or
may not create a nuisance on Surface Estate A to develop the minerals below Surface Estate
B.


                                                   3
briefing and argument of dispositive motions, yet [Petitioners] chose not to make it. . . .

[A]rgument or evidence that could and should have been presented cannot be raised for the

first time in a Rule 59(e) motion.”6 For that reason, the Panel never ruled on the issue of

whether the owner of minerals underlying Surface Estate A can create a nuisance on that

surface to develop the minerals below Surface Estate B. Consequently, the Court cannot

decide the question, either.7


              I respectfully concur with the Court.




       6
         Mey v. Pep Boys-Manny, Moe & Jack, 228 W. Va. 48, 56, 717 S.E.2d 235, 243
(2011) (“A motion under Rule 59(e) is not appropriate for presenting new legal arguments,
factual contentions, or claims that could have previously been argued.”).
       7
         See Sands at Syl. Pt. 1. See also See State ex rel. State Farm Mut. Auto. Ins. Co.
v. Bedell, 228 W. Va. 252, 264–65, 719 S.E.2d 722, 734–35 (2011) (explaining that the
Court does not decide nonjurisdictional questions not first decided by the lower court
because the facts underlying the issue are undeveloped; the Court lacks a ruling by the
lower court and, hence, its wisdom; and to do so would be manifestly unfair to the opposing
party) (citing Whitlow v. Board of Educ. of Kanawha Cty., 190 W. Va. 223, 226, 438 S.E.2d
15, 18 (1993)).


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