nightmareYou might conclude that the but-for-the-grace-of-God-that-could-be-me nightmare presented in In re: RPH Capital Partners is instructive only for lawyers. If so, you would be mistaken. The lesson: If you want to win the lawsuit, pay attention to pesky legalities such as notices of trial settings. Likewise, if you want to protect your hydrocarbons, reinforce your people and processes for maintaining leases and other significant obligations.

RPH sued Peridot and others for failing to make payments under a participation agreement and for selling interests in properties they didn’t own. The defendants didn’t appear for the trial.  A default judgment for $13 million was taken.

After RPH began garnishing bank accounts Peridot filed a petition for bill of review, contending it never received a copy of the judgment. Peridot had only 38 days’ notice of the trial (the law requires 45), so Peridot argued it was deprived of its due process rights.  The trial court ordered a new trial.

Everyone agreed that Peridot did not receive enough notice of the trial, but was the notice so insufficient that it was a violation of fundamental due process rights? No. Peridot waived that complaint when it took no action after it received less than 45 days’ notice.

The case then turned to whether Peridot’s failure to appear was not intentional or the result of conscious indifference, but was due to mistake or accident.  The court never got to whether there was a meritorious defense.

To prove that the failure to appear was not intentional or the result of conscious indifference there must be “some excuse, although not necessarily a good one.”  Forgetfulness alone is insufficient, but excuses that are acceptable are, for example, bad weather and misplacing the citation due to staff turnover.

Peridot’s counsel “did not see” the trial setting and no one in the office docketed the trial date. The deficiency in counsel’s affidavit was that it didn’t explain the failure to appear at trial and offered no description of circumstances that could explain why he took no notice of the trial date.  Finally, the affidavit failed to address other instances showing Peridot had notice of the trial date. Peridot did not establish that its failure to appear was not intentional or a result of conscious indifference.

What does this have to do with me?

The lesson for the lawyer is obvious. What if you run a land department?  You should be good to go if you have people and processes in place to assure that obligations such as delay rentals and royalty payments are made. And while you’re at it, who is paying attention to debilitating lease provisions (the ones the lessor would never even consider enforcing, until he does), such as lease termination for failure to timely pay royalties?

Musical interlude: For the trial judge who has been reversed.

omegaAre Louisiana courts as enamored with arbitration as their Texas counterparts? Looks like it. East of the Sabine, submitting your dispute to arbitration means you are pretty much saying adieu, farewell and bye-bye to a judicial mulligan.

In ExPert Oil & Gas, LLC v. Mack Energy Co., et al an arbitrator’s mistaken calculation did not nullify an arbitration award.

Round one

ExPert was the operator under a participation agreement and JOA. An audit of the joint account found that some expenditures were unauthorized and should be repaid. Neither party agreed with the auditor’s report and the matter was arbitrated. After an eight day hearing the arbitrator rendered a reasoned award ordering ExPert to credit $1.5 million to the joint account.  The district court, First Circuit, and Louisiana Supreme Court confirmed the arbitration award.

The real issue

After the Supreme Court affirmed the judgment confirming the award, the arbitrator revealed “that he committed gross professional negligence when performing the calculation of three categories of credits in the arbitration award” (so said ExPert). Those credits totaled $434,000. Never shirking a good fight, ExPert sued, alleging that the judgment was a relative nullity because of “ill practices”, referring to the arbitrator’s admission of his mistake. Accepting all facts in the petition as true, the question was whether ExPert was legally entitled to relief.  A judgment may be annulled by fraud or ill practices but not for mere error. La. Code Civ. P. 2004(B) is sufficiently broad to encompass all situations in which a judgment is rendered through an improper practice or procedure.

“Ill” practices?

Ill practices includes any improper practice or procedure which operates, even innocently, to deprive a litigant of a legal right. There are two criteria to determine whether a judgment was obtained by actionable fraud or ill practices:

  • The circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief; and
  • Enforcement of the judgment would be unconscionable and inequitable.

The punch line

The court declined to vacate the award: By substituting arbitration for litigation, the parties are presumed to accept the risk of procedural and substantive mistakes by the arbitrator of either fact or law, which are not reviewable by the courts. ExPert failed to state a cause of action for nullity of the original judgment.

Questions, observations and one thing to ponder

  • Would the result have been different if the error had been presented during round one? The reasoning suggests it would not, but the court doesn’t say.
  • Could the error been discovered sooner, especially with a reasoned award?
  • If the amount in controversy allows, go with three arbitrators for a better chance of an error-free award.
  • Despite this unfortunate result, arbitration has its advantages.
  • Should Mack have just acknowledged the injustice and agreed to return the $435,000? Would you?

A musical interlude for the case.

And one for Christmas Advent.

perpetuityToday we venture into Oklahoma, to be instructed on the Supreme  Court’s treatment of the Rule Against Perpetuities. First, the Rule: No property interest is good unless it must vest, if all, not later than 21 years after some life in being at the creation of the interest.

In American Natural Resources LLC v. Eagle Rock Energy Partners LP, et alEagle Rock’s predecessor (Encore) and ANR entered into a participation agreement with an AMI. Eagle Rock drilled and completed 17 wells without allowing ANR to participate. In response to ANR’s tortious interference and breach of contract suit, Eagle Rock said that the Rule Against Perpetuities prevented enforcement of this option: “In all subsequent wells within the AMI, ANR shall have the right to participate in the prospect area with a . . . 25% working interest . . .”

ANR responded: The Rule doesn’t apply to operating agreements and doesn’t apply to the option because oil and gas production is always of limited duration.

The court’s analysis

The court observed that the Rule applies to property rights but not to contracts, which are personal, and found cases involving JOAs and leases that fell on both sides. The question was, Does this option provision create a property right subject to the Rule?  The court’s answer was yes.

Options in mineral leases do not violate the Rule because leases and JOAs have a built duration not necessarily tied to the cessation of production. But this AMI was a stand-alone document, and the option applies to participation in wells drilled in the future, as well as existing leases. ANR could participate in future wells even if production ceased and then restarted.  The option allowed ANR to participate in future wells if production ceased and then restarted under new leases and new JOAs. as well as existing leases. As such it is subject to the Rule.

An LLC is not a “life in being”

ANR argued that a single member limited liability company with a 30 year duration should be disregarded as an entity.  The court responded: A corporation might be a person, but it is not a “life in being”.  The only measurable “life in being” in the case of a corporation is a term not exceeding 21 years.  A provision with an immeasurable life in being that vests or distributes after 21 years violates the Rule and is void. ANR asked the court to rely on the disregarded entity doctrine used for federal tax purposes. The court said they were not dealing with federal taxes, but with contractual rights.  Thus, an Oklahoma LLC is a legal entity separate from its owners.

Speaking of Oklahoma, Leon Russell RIP.

Lagniappe

For extra credit, learn more about the Dakota Access Pipeline.

pancake 3North Shore Energy v. Harkins interpreted an Option Agreement between landowners and a producer over a 400 acre tract. In football they would say the Texas Supreme Court pancaked the plaintiff. In the law, some would call it business as usual.

What the court really did?

A contract interpretation case might have little interest to most readers, what with the “doctrine of last antecedent” and such. The significance is that the court, as it has the power to do, reversed and rendered, substituting its interpretation of a contract in place of two lower courts and a jury verdict awarding the producer $709,000 in actual damages, $1.148 million in punitives, and $400,000 in legal fees.

The heart of the dispute was whether a certain 400 acres was included in the Option.  The trial court construed the contract in favor of the producer. There was a jury trial on the producer’s tortious interference and breach of contact claims. The court of appeal sent the case back to the trial court, holding that the contract was ambiguous and thus, interpretation of the description was a fact issue. The Supreme Court held that the description was not ambiguous and interpreted the contract in favor of the defendant landowners.

The facts 

The agreement described a 1,210 acre tract out of a 1,673 acre tract described in an oil and gas lease with Hammon (sic). So far, so good.  The oil and gas lease described 1,273 acres out of the 1,673, SAVE AND EXCEPT a 400 acre tract.

North Shore exercised the option on 169 acres, which happened to contain a portion of the 400 acres.  North Shore drilled its well on the Hammon tract. Not good.

Along comes Dynamic, who, concluding that North Shore didn’t have the right to lease the 400 acres, took a lease from the family. North Shore sued everybody to quiet title to the Hammon lease tract and to reform the Option Agreement.

The court concluded that the description of land in the Option Agreement did not include the 400 acres.

How the court interprets a contract

The high court considered the contract in light of the circumstances surrounding its execution to determine whether it was ambiguous. North Shore paid $144,000 for 2,886 acres, which is $50 per acre; thus, they concluded that North Shore only optioned 1,210 acres.  This would exclude the 400.

The Option was a legally enforceable selection agreement, but it didn’t give North Shore the option to choose any 1,210 acres out of the 1,673.

The court considered the doctrine of last antecedent (English majors, see page 8 for more). The court then considered the word “being”.  The two “beings” in the description were a correlative pair that refer to the same object – the 1,210 acres.  (See page 7) The court then looked at “and” as a conjunction. The court concluded that the family and Dynamic’s interpretation was the only reasonable one.  The Option referred specifically to the lease, which explicitly excluded the 400 acres. Thus, the plain language of the Option specifically excluded the 400 acres. With that, the damages and attorney fees went away.

Leonard Cohen RIP. IMO his writing was better than his singing, so we have a cover of a wonderful song.

chess2The lessons in Craddick Partners Ltd. v. EnerSciences Holdings, LLC are three: Parties who have not signed an agreement to arbitrate have standing to compel arbitration; artful pleading to avoid arbitration won’t work; and Texas courts remain eager to send cases to arbitration.

EnerSciences’ two subsidiaries sell products in the oil field. Tom Craddick approached EnerSciences to sell products to Craddick’s Permian Basin clients. EnerSciences created PB Ventures as a subsidiary through which Craddick would sell their products.

A sales agreement between Craddick Partners and PB Ventures compelled arbitration of all disputes, excluding claims “brought by either party seeking injunctive, declaratory or preliminary relief”.

Pardon me while I digress

Some parties agree to litigate some claims and arbitrate others. Why? Don’t do it. It only complicates matters, potentially increasing the cost of the dispute by fighting it in two different places. And injunctive relief is addressed by the courts and the rules of the arbitration bodies.

The dispute

Craddick Partners sued PB Ventures, EnerSciences, and its two subs, asserting negligent misrepresentation, negligence, and tortious interference (all of which are torts), and seeking a declaration that the sales agreement had terminated.

The defendants, no doubt seeking to avoid a generous portion of hometown justice, sought arbitration, alleging that Craddick artfully pleaded tort actions to avoid arbitration and that the claims were really for breach of contract. Craddick said the EnerSciences parties were non-signatories to the sales agreement and thus lacked standing.

“Direct-benefits estoppel”?

The doctrine permits a non-signatory to compel arbitration of a signatory’s claim “if liability arises solely from the contract and must be determined by reference to it”.  Said the court, a “meddlesome stranger” cannot compel arbitration by merely pleading a claim that quotes someone else’s contract. A party can’t have it both ways:  on one hand seek to hold the non-signatory liable for duties imposed by an agreement with an arbitration provision, but on the other hand deny arbitration because a defendant did not sign it.

The court denied Craddick’s argument that its claims arose from general obligations imposed by law (the tort claims). All of Craddick’s claims depended on the existence of the sales agreement. The claims not only made reference to or presumed the existence of the agreement but relied upon it for viability. EnerSciences had no obligations to Craddick other than those arising out of the contract.

A factor in the tortious interference claim was that the non-signatories were so close to the contract that they were an integral component of it; they were affiliates, and not strangers to the agreement.  Craddick could not avoid arbitration by recasting its claims as tortious interference. That claim also relied on the sales agreement for viability.  If PB Ventures had not breached the sales agreement there would be no tortious interference.

Fancy pleading doesn’t help

The court concluded that the declaratory judgment request was merely an artfully pleaded breach of contract claim. To render a declaratory judgment the court would have had to determine whether PB Ventures breached the sales agreement.

To appreciate today’s musical interludes, consider what early 1950’s  mainstream radio sounded like. Along came Chess Records with Chester BurnettMcKinley Morganfield and plenty of others.

So, Phil Chess RIP.

jackie robinsonMy blogging sensei Cordell Parvin says the title should always inform the reader of the content. Mea culpa on this one; I couldn’t resist the alliterations.

Some time back I reported on Carlton Energy Group et al v. Phillips et al.  See that entry for the facts and a Texas Supreme Court opinion. In this new opinion from the court of appeal, the trial court was vindicated and the rest of us learned more about determining fair market value and lost profits.

A brief history

The trial court awarded Carlton $31.16 million in actual damages after finding that Phillips and EurEnergy tortuously interfered with Carlton’s contract with CBM. The court of appeal reversed and rendered judgment for $66.5 million in actual damages. The Supreme Court suggested a remittitur to the $31.1 million, which Carlton accepted.

In this appeal Phillips reiterated without success that the evidence was factually insufficient and asked for remand to the trial court for a do-over. Lawyers: See the inside baseball analysis of legally and factually sufficient evidence.

Arriving at fair market value

Carlton’s damages focused on the fair market value of Carlton’s interest in the Bulgarian gas exploration project: What would a willing buyer pay a willing seller, neither acting under any compulsion?

FMV is generally determined by:

  • comparable market sales,
  • replacement costs less depreciation, or
  • capitalizing net income – that is, profits.

And lost profits 

The lost profits were not themselves sought as damages, but were used to determine the FMV of the project. The court had this to say about lost profits:

  • Profits can be recovered only when the amount is proved with reasonable certainty.
  • The reasonable certainty requirement is intended to be flexible enough to accommodate the myriad circumstances in which claims for lost profits arise.
  • It is impossible to announce with exact certainty any rule measuring profits, the loss for which the recovery may be had.
  • What constitutes reasonably certain evidence of lost profits is a fact-intensive determination.
  • At a minimum, opinions or estimates of lost profits must be based on objective facts, figures or data from which the amount of lost profits can be ascertained.
  • Uncertainty as to the fact of legal damages is fatal to recovery, but uncertainty as to the amount will not defeat recovery.

The damages were in great part determined by extrapolating from the Carlton/Philips agreement to the total value of the project. That the agreement was never consummated did not deprive it of evidentiary value. Having made an agreement for certain price, which determined the value, Phillips was pretty much stuck with that valuation.

Trial strategy and the suicide squeeze

An earlier post compared a defendant’s election not to offer his own damage evidence to the suicide squeeze. In this one – unlike Jackie Robinson – the defendant was out at the plate. Phillips presented no FMV evidence of his own, choosing rather to attack Carlton’s experts.

Gearing up, musically, for the World Series.

While we’re at it, … go ahead and squander just a teeny-bit more time and then back to work.

stratigraphic formation

Co-author Brooke Sizer

How many of your mineral conveyances are described like this:

… all of Sellers’ right, title and interest in and to (a) the oil, gas and other minerals in, to and under the lands … ONLY INSOFAR as such oil, gas and other minerals are located below that depth which is the stratigraphic equivalent of the base of the Cotton Valley formation and the top of the Louark Group defined as correlative to a depth of 10,765′ in the Winchester Samuels 23 # 1 well … and correlative to a depth of 9,298′ in the Tenneco Baker # 1 well …

The dispute

BRP’s predecessor, IP, sold mineral rights in 13,000 acres in DeSoto and Bienville Parishes to Chesapeake with just that description.  When BRP later went to sell more, Chesapeake claimed that the agreement conveyed rights to the Bossier Shale (lying above the Louark Group), as well as the Haynesville. BRP countered that only rights in the Haynesville Shale and lower depths were sold, thus BRP retained all interests above the top of the Louark Group. BRP LLC (Delaware) v. MC Louisiana Minerals LLC, et al. ensued.

The negotiations

The trial court could not ascertain the common intention of the parties in the IP assignment from the words of the assignment itself. So the court considered parol evidence. On one hand, the parties only talked about rights to the Haynesville Shale, and BRP believed that only the Haynesville was below the Cotton Valley formation. On the other, email from Chesapeake referenced its intent to buy all rights below the Cotton Valley.

Big fact:  No geologist was consulted about the description.

A formation is not a monument 

BRP argued that the rules governing surface limitations on servitudes apply to dividing mineral servitudes by depth. In determining the location of a boundary on the land the most important factor is natural monuments.  BRP urged that the “base of the Cotton Valley Formation” and the “top of the Louark Group” are natural monuments. That argument was unsuccessful.

Experts testified that subsurface formations do not have the permanence of natural monuments on the surface: “The location of formations and groups are subject to disagreement among geologists, and the general thought about their location can vary over time…., for this reason, stratigraphic markers, such as the well depths used in this case, are the more commonly used in the oil and gas industry.”

BRP’s problem was that the base of the Cotton Valley and the top of the Louark Group are two different boundaries and are separated by the 500 to 600 foot thick Bossier Shale.

The result

The trial court judgment in favor of Chesapeake was affirmed.

  • The stratigraphic markers represented by well depths were sufficient for designating the minerals conveyed. The depth limitation language was self-defining.
  • IP had been in a position to complete the due diligence necessary to protect its interests.

What does this case mean to you? 

  • If you talk geology, make sure your geologist is on the team.
  • IP’s dealmakers didn’t understand the geology of the formations.
  • Good try BRP, but as successor you were stuck with IP’s description, and their lack of knowledge.

The (almost) perfect musical interlude

Les was overheard last week crooning this mournful tune to his Tiger fanbase. Was it too soon?

pete fountainCo-author Michael Kelsheimer

Thinking about changing an employee policy in Texas? Kubala v. Supreme Production Services, Inc. says you can do it (almost) whenever you want. Want to make employees arbitrate their disputes? You can do that too.

Kubala’s employer Supreme announced a new policy requiring employees to arbitrate employment disputes, including Fair Labor Standards Act claims.  Continued employment was conditioned on acceptance of the agreement, which delegated to the arbitrator the power to make gateway determinations as to the arbitrability of any given claim.  Kubala did not sign that agreement after the meeting but continued his employment and accepted payment for his work.

The new policy was announced two days after Kubala had filed a FLSA collective action against Supreme but, as far as the court knew, before Supreme received notice of the suit.

The agreement to arbitrate

The first question was whether there was an agreement to arbitrate any set of claims, such as pre-existing disputes. Kubala’s obligation to arbitrate claims was imposed while he was already employed on an at-will basis.  Thus, the question:  Was there was a valid modification of the terms of his employment?

Arbitration agreements between employers and their employees are broadly enforceable in Texas. To demonstrate a modification of the terms of at-will employment, the proponent must demonstrate that the other party received notice of the change and accepted the change.

The court deemed that acceptance need not be more complicated than continuing to show up for work and accepting wages in return for work. Supreme satisfied this requirement by providing notice at a meeting where the policy was explained. Kubala knew the policy was a condition of continued employment.  He continued to work.  It doesn’t matter that he didn’t sign the agreement.

The delegation clause 

Was there was a valid delegation clause? Yes. The court was not opining on whether the agreement required that the merits of Kubala’s claim be arbitrated.  The only issue was who answers that question. The court concluded that it was plainly the right and responsibility of the arbitrator to determine his or her own jurisdiction.

Doubts

Judge Higginbotham’s cautionary concurring opinion addressed an employer’s ability to impose arbitration after the employee had filed suit. The result could be that the employer could coerce the plaintiff-employee into relinquishing his FLSA-given right to sue. Judge Higginbotham was concerned about “a regime of contracting out justice”.  Supreme’s saving grace was that it was unaware of Kubala’s suit until after the arbitration agreement became effective.

Worried about the presidential election?

Don’t be:

“Democracy is the worst form of government except for all the others that have been tried.”  Winston Churchill.

Be:

“The best argument against democracy is a five-minute conversation with the average voter.” Winston Churchill.

Remember the campaign ad about the 3:00 a.m. phone call? Let Gary Clark, Jr. answer it.

Great New Orleans musician Pete Fountain RIP.

angry woman

Co-author Skyler Stuckey

The big trade-secret case, Southwestern Energy v. Berry-Helfand, reported on these pages here and here, has been worked over by the Texas Supreme Court. Highlights:

  • Lack of certainty in damages does not preclude recovery.
  • A “Flexible and imaginative” approach to damages in trade secret cases has its limits
  • For the limitations clock to begin running, notice must be more than a suspicion or subjective belief.

A good tactical call

A defendant’s decision not to call an expert damages witness is reminiscent of the suicide squeeze. Judgment is withheld until the result is in. Run scores – manager is a genius; runner out at the plate – manager is reckless and should be fired. Here Southwestern introduced no witness of its own, but instead attacked factual underpinnings of Helfand’s expert’s methodology and the reliability of his calculations. Decision vindicated? Looks like yes. The jury awarded far less than Helfand’s expert calculated.

Reduced damages for misappropriation

As the court saw it, the only figure in the calculations that bore a relationship to the jury’s award was three-percent override applied to past production revenue on the disputed wells. There was no basis for valuing an override in Southwestern’s deep-rights sale. An estimate based on that sale was no evidence to support the jury’s $10.6 million award. The remainder of his calculations, though overstated, was sufficient evidence of actual damages for trade-secret misappropriation.

The proper measure was the reasonable royalty that would be obtained for the trade secret’s use, not an override. Relying on a “flexible and imaginative approach” for trade secret misappropriation is not justified when objective evidence is available. The compensation in the comparable Petrohawk agreement was probative of the trade secret’s value, and not necessarily of a reasonable royalty. Legally sufficient evidence existed to support actual damages, but insufficient evidence exists to support the entire amount the jury awarded.

The expert’s opinion was insufficient to support the entire judgment because he applied the total average payout (3%) received by the plaintiff under an exemplar agreement with Petrohawk to the total number of wells drilled by the defendant. He should have applied the specific formula for payout in the exemplar contract to each well to determine the exact amount that would have been paid for the trade secret.

Damages remanded – not rendered

Overstated damages do not entirely defeat recovery when legally sufficient evidence shows damages exist. There were damages to be had, just not in the amount awarded.

Breach of contract do-over

The court of appeals’ take-nothing judgment on breach of the confidentiality agreement was reversed and remanded. The jury award, based on the “value of the trade secret”, was not a proper measure of contract damages. Error in the measure of contract damages was not before the appeals court because Southwestern abandoned it on appeal. There was evidence of damages, but not enough to support the full award.

Limitations and the discovery rule – plaintiff survives

For the statute to begin to run on a trade secret misappropriation claim based solely on notice of sufficient facts that would cause a reasonable person to make further inquiry, the facts of which the plaintiff has notice must be egregious. Suspicions, subjective beliefs, and concerns are not sufficient. Southwestern failed to establish the date the misappropriation was discovered or as a matter of law, should have been, and couldn’t identify evidence revealing what Helfand would have discovered had she made further inquiry.

And we close with this enticement from the Supreme Court to unhappy defendants.

gliderLet’s start with a little background: Under the Accommodation Doctrine an oil and gas lessee has an implied right to use the land as reasonably necessary to produce and remove the minerals, but must exercise the right with due regard for the landowner’s rights.

As a result of Coyote Lake Ranch v. City of Lubbock, the doctrine now applies between the landowner and the owner of an interest in the groundwater. You think this decision pertains to ranchers? I report it because as we know from Bernie, you oil people frack the earth, poison our babies, and spend undeserved riches that should go to the government on vast, water-starved ranches in West Texas.

How did we get here?

In 1953, the City bought the Ranch’s groundwater via a deed that had very detailed provisions regarding the City’s rights. The Ranch reserved water for certain specified uses. In 2012, the City announced plans to increase water extraction by drilling as many as 20 test wells and 60 additional wells. The Ranch objected and sued to enjoin the City from implementing its plan.

The Ranch argues … and honors the Lesser Prairie Chicken

  • The City has contractual and common law responsibility to use only that amount of the surface that is reasonably necessary for its operations and to conduct operations with due regard to the rights of the surface owner.
  • Mowing or removing vegetation would cause destructive wind erosion.
  • The City could drill only where the Ranch allows it as long as full access to groundwater is not impaired.
  • Elevated power lines would allow hawks to roost and prey on the Lesser Prairie Chicken, a threatened species. So bury them (the lines, not the chickens).

The City argues

  • The deed gives the City very broad rights to pursue its plan.
  • The City owes no duty to surface owners (as would mineral owners to accommodate surface owners).
  • The City can drill wherever it chooses, even if it could drill in places less damaging to the surface and still access the water.

The deed governs the City’s rights to use the Ranch land.  What is unsaid is whether the City has an “all but absolute” right to use the surface, heedless of avoidable injury, or only what is necessary or incidental to fully access the groundwater.

The Result

The deed alone did not determine the City’s right to use the Ranch.  There are sufficient similarities between mineral and groundwater estates and their conflicts with the surface estate to apply the Accommodation Doctrine.

See pages 10 through 12 for a history of the doctrine in Texas. See page 13 for the elements of a surface owner’s claim under the doctrine.

A concurring opinion pointed to the written agreement allowing the City to drill water wells at any time and location.  Thus, the doctrine should not apply.  It might apply to where and when the City could construct access roads, but not to where it may locate wells.  Access roads could be built only where “necessary or incidental,” which leaves substantial room for disagreement. To that, the concurring justices would apply a reasonableness standard.

This is a Supreme Court opinion, so treat it like it is a big deal.

A musical interlude.

Let’s not forget D- Day

Several years ago I commented about D-Day – which happened 72 years ago yesterday – and my uncle, who was there. It is worth reading again.