On April 2, 2018, the Pennsylvania Superior Court issued a decision in Briggs v. Southwestern Energy Production Company, No. 1351 MDA 2017, reversing a lower court judgment entered in favor of the defendant producer.

 

In reversing the lower court, the Pennsylvania Superior Court held that the long-established "Rule of Capture" principle did not apply to prohibit a trespass claim by an adjoining unleased landowner against a producer when that producer utilizes hydraulic fracturing for a horizontal well.

 

The Pennsylvania Superior Court drew a distinction between gas purportedly trapped within shale rock formations and released by fracturing operations and fugacious gas within an underground reservoir released by conventional vertical wells. In remanding the action back to the lower court, the Superior Court held that questions of fact existed concerning the length of subterranean cracks created by hydraulic fracturing, and whether the cracks extended across property lines and released trapped shale gas from the adjoining landowner's tract.

 

This case should be closely watched because it could dramatically impact the Pennsylvania legal landscape for horizontal drilling. In addition, note the Briggs decision refers to Stone v. Chesapeake Appalachia, LLC, No. 5:12-CV-102, 2013 WL 2097397 (N.D. W.Va. Apr. 10, 2013), in which the federal District Court for the Northern District of West Virginia found that the Supreme Court of Appeals of West Virginia might determine that hydraulic fracturing associated with horizontal drilling that penetrates adjoining land without the adjoining landowner's consent is not protected by the traditional Rule of Capture. However, the District Court later vacated its ruling based on a settlement between the affected parties.