No. 12-0152 - Arthur Thornsbury and Virginia Thornsbury v. Cabot Oil & Gas
             Corporation
                                                                            FILED
                                                                     September 26, 2013
                                                                         released at 3:00 p.m.

                                                                       RORY L. PERRY II, CLERK

                                                                     SUPREME COURT OF APPEALS

                                                                          OF WEST VIRGINIA



LOUGHRY, Justice, concurring, in part, and dissenting, in part:



              I dissent from the majority’s decision in this case insofar as it concludes that

the parties had an agreement whereby Cabot Oil & Gas Corporation (“Cabot’) would be

permitted to build a road only two hundred feet in length on the Thornsburys’ property in

exchange for five hundred dollars and that to the extent the road exceeds that length, Cabot

is liable to the Thornsburys. A review of the record shows that the majority has completely

misconstrued the parties’ agreement.



              Cabot, as the lessee of the minerals underlying the Thornsburys’ property, has

the right to enter the property and do what is reasonably necessary to extract the minerals,1

which includes the right to construct a road to its drilling site.2 Therefore, Cabot did not need

       1
        See Syl. Pt.1, Squires v. Lafferty, 95 W.Va. 307, 121 S.E. 90 (1924) (“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.”).
       2
         See Syl. Pt. 2, Coffindaffer v. Hope Natural Gas Co., 74 W.Va. 107, 81 S.E. 966
(1914) (“A person having the right to go upon another’s land ‘to bore and develop said land
for oil and gas, with the necessary usual and convenient rights’ therefor, has the right to build
a road over the land, when necessary to haul machinery and material to the place selected for

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to obtain permission from the Thornsburys to build a road in order to exercise its mineral

rights and, in fact, it did not do so. Rather, the record shows that Cabot approached the

Thornsburys and the Vances, the owners of the property adjoining the Thornsburys, seeking

a right-of-way two hundred feet in length because it was uncertain as to the boundary lines

of the properties. As Cabot explained during discovery,

               The 1949 lease granted Cabot the right to construct any and all
               roads, pipelines and structures on the surface incident to the
               development of the mineral estate. The road right of way was
               taken only for the purposes of avoiding any dispute about on
               whose surface property the road at its beginning point was
               located, due the vague boundary descriptions applicable to the
               plaintiffs’ estate and the adjoining surface estate (Vance).
               Given the potential dispute between the adjoining surface
               owners as to the property boundary description for the area in
               question, Cabot obtained the right of way so that there could be
               no dispute as to surface ownership at the starting point of the
               road.

Thus, the agreement between the parties was not for the purpose of allowing Cabot to build

a road only two hundred feet in length. It was simply a right-of-way to avoid any potential

dispute with the adjoining land owner as to whether the beginning point of the road was

actually located on the surface of the land where Cabot leased the mineral rights.



               Importantly, after the parties executed the right-of-way agreement, Mr.

Thornsbury acknowledged that Cabot was the lessee of the mineral rights to the subject




drilling a well.”).

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property and had a right to develop them. He executed an affidavit on September 27, 2006,

which stated:

                        I, the Affiant herein, recognize Tug Fork Land Company,
                their successor and/or assign as the owner of the oil and gas, the
                oil and gas rights, and the oil and gas interests, in and to the
                above described land.

                        I, the Affiant herein, recognize the right of the owners of
                the oil and gas to execute an oil and gas lease(s) covering the
                above described land and the right of the Lessees in and to such
                lease(s) to go upon the land and explore, prospect, drill, produce
                use, and develop it under the terms of such oil and gas lease(s).

                       I, the Affiant herein, recognize Cabot Oil & Gas
                Corporation, 900 Lee Street East, Suite 1500 Huntington
                Square, Charleston, West Virginia 25301, as the oil and gas
                leasehold interest owners in and to the above described lands.

Thus, the majority’s conclusion that “[t]he record establishes that in 2006, Cabot and the

Thornsburys contracted that Cabot (1) would build a road 200 feet in length on the 30 acre

tract, [and] (2) would built it in the location described in the right-of-way agreement[]” is not

supported by the record.



                In summary, I believe the majority’s decision to remand this case on the

Thornsburys’ claim for breach of contract because Cabot built a road that exceeded two feet

in length is error; it is not supported in law or fact. As demonstrated above, the parties’

agreement was for a two hundred foot right-of-way. As lessee of the minerals, Cabot had the

right to build a road of any length necessary to exercise its right to build a gas well on the


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property. Mr. Thornsbury recognized that right when he executed his affidavit. The

Thornsburys did not assert any cause of action for violation of the common law with respect

to Cabot’s use of the surface to extract the minerals nor did they allege any violation of the

Oil and Gas Production Damage Compensation Act, West Virginia Code §§ 22-7-1 to -8.

Accordingly, there is no basis to reverse the circuit court’s grant of summary judgment on

this claim.



              I agree with the majority on one point. The record does establish that as part

of the right-of-way agreement, Cabot agreed to “stack all timber ten (10) inches and larger”

on that portion of land described therein. Clearly, there are genuine issues of material fact

as to whether Cabot breached this part of the agreement. In that regard, the Thornsburys

have asserted that Cabot failed to stack any of the timber. Cabot has countered that none of

the timber it removed was suitable for stacking.



              Therefore, for the reasons set forth above, I would have affirmed the circuit

court’s grant of summary judgment to Cabot as to the Thornsburys’ claim that Cabot

breached their right-of-way agreement by building a road that exceeded two hundred feet in

length. I would have reversed the circuit court’s grant of summary judgment only as to the

Thornsburys’ claim for breach of contract based on Cabot’s alleged failure to stack the

timber on the two hundred foot right-of-way.


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              Accordingly, I respectfully concur, in part, and dissent, in part, to the majority’s

decision in this case. I am authorized to state that Chief Justice Benjamin joins me in this

separate opinion.




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