By Sarah Thomas
Like wild animals, oil and gas are subject to the rule of capture.[1] The rule of capture was established by Pierson v. Post, a famous American property law case addressing which of two hunters possess rights to a killed fox in early-nineteenth century Southampton, New York.[2] [3] Lodowick Post was a hunter in pursuit of a fox, trailing a fox through a pasture with his hunting hounds.[4] The fox, seeking refuge, positioned itself near a well located within the pasture. This pasture adjoined the farm of Jesse Pierson, a fellow Southampton resident.[5] Pierson captured and killed the fox, carrying it off—the rest is history.[6] The Court held that one who manifests an “unequivocal intention of appropriating the animal to his individual use” by depriving the animal of its natural liberty, and subjects the animal to the control of its pursuer, establishes occupancy and gains rights over a wild animal.[7]
This “rule of capture” now extends far beyond the scope of foxes residing in the pastures of Suffolk County, New York, and into many disputes involving oil and gas law.[8] As with any fluid, oil and gas may naturally move from an area of high pressure to low pressure.[9] Because minerals have a natural tendency to escape, courts have compared this tendency to that of wild animals.[10] Like the aforementioned fox in Post, oil and gas are thus subject to the rule of capture.[11] In Pennsylvania, the rule of capture allows for gas to be extracted from underneath land owned by another party when a common pool of gas lays below the adjoining lands .[12] An aggrieved property owner may only offset the loss by drilling their own well to siphon gas from the common pool. This principle is referenced in Barnard v. Monongahela Nat. Gas Co., a decision rendered by the Supreme Court of Pennsylvania in 1907.[13]
In Briggs v. Southwestern Energy Production Company, the Supreme Court of Pennsylvania addressed whether hydraulic fracturing constitutes a trespass to adjacent land. Plaintiffs alleged that Southwestern extracted natural gas from under their parcel of land consisting of approximately eleven acres. In turn, Plaintiffs alleged two counts: 1) the value of the natural gas under the Plaintiff’s land; and 2) possession and use of the natural gas, as Plaintiffs allege Southwestern converted these rights to Southwestern’s use. The Plaintiffs did not allege a physical trespass.
To understand the rule of capture in the context of fracking, a broad background on the mechanics of hydraulic fracturing is necessary. Broadly, hydraulic fracturing works by pumping water, sand, ceramic pieces, and chemical additives into a rock formation at high pressure. This injection creates a fracture from which fluids may be drawn. Southwestern has used hydraulic fracturing to extract natural gas from the Marcellus Shale rock formation.[14] The Marcellus Shale play contains natural gas trapped in between small fissures of rock.[15] Marcellus Shale “stretches from upstate New York south through Pennsylvania to West Virginia and west to parts of Ohio.”[16]
In the absence of a physical invasion, the Supreme Court of Pennsylvania held that, “developers who use hydraulic fracturing may rely on pressure differentials to drain oil and gas from under another’s property”.[17] In its reasoning, the Court references prior decisions holding that, in the absence of a physical invasion of property, subsurface drilling using artificial means, such as a pump, from a common pool, is permitted under the rule of capture.[18] The Court reasons that there is no reason for this principle not to apply when the operators’ means of extraction is through hydraulic fracturing methods.[19] Thus, the rule of capture still applies in Pennsylvania, despite operators using hydraulic fracturing methods in natural gas extraction.[20] As methods of natural gas extraction continue to evolve, the foundations of property law, including the rule of capture and trespass, remain crucial to resolving land use disputes.
[1] Briggs v. Sw. Energy Prod. Co., 224 A.3d 334, 336 (Pa. 2020).
[2] Id. at 1119.
[3] Id. at 1121.
[4] Pierson v. Post, 3 Cai. R. 175 (N.Y. Sup. Ct. 1805).
[5] Bethany R. Berger, It’s Not About the Fox: The Untold History of Pierson v. Post, 55 Duke L.J. 1089, 1120 (2006).
[6] Pierson v. Post, 3 Cai. R. 175 at 175.
[7] Id. at 178.
[8] Briggs v. Sw. Energy Prod. Co., 224 A.3d 334 at 336.
[9] Id.
[10] Id.
[11] Id. at 337.
[12] James A Pellow, III, “PA Supreme Court rules on Briggs v. Southwestern Energy and the Rule of Capture” https://www.eckertseamans.com/legal-updates/pa-supreme-court-rules-on-briggs-v-southwestern-energy-and-the-rule-of-capture
[13] Barnard v. Monongahela Nat. Gas Co., 216 Pa. 362, 65 A. 801 (1907).
[14] Briggs v. Sw. Energy Prod. Co., 224 A.3d 334 at 339.
[15] “The Marcellus Shale, Explained” https://stateimpact.npr.org/pennsylvania/tag/marcellus-shale/
[16] Id.
[17] Briggs v. Sw. Energy Prod. Co., 224 A.3d 334 at 352.
[18] Id. at 348.
[19] Id.
[20] Id. at 352.