Trespass By Fracturing? Alive And Well In West Virginia

The theory of trespass by hydraulic fracturing has gained some momentum. A federal district court in West Virginia concluded that, under state law, hydraulic fracturing under the land of an adjoining property is an actionable trespass that is not precluded by the rule of capture.

In Stone v. Chesapeake Appalachia, LLC, 2013 U.S. Dist. LEXIS 71121 (N.D.W.V. Apr. 10, 2013), the district court declined to follow the Texas Supreme Court's decision in Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1 (Tex. 2008), which held that landowners' claims for damages as a result of trespass where hydraulic fracturing extended under a landowner's property were barred by the rule of capture. The district court opinion did not discuss the exact nature of the trespass, other than noting that Chesapeake drilled a horizontal well on a neighboring property that contained a vertical wellbore approximately 200 feet from the property with the horizontal aspect of the bore within tens of feet of the property.

In denying the...