Co-author Brittany Blakey
After a trial court order, two appellate opinions, a dissent, and another appellate opinion, the tension between a well operator and an adjacent mineral owner over whether hydraulic fracturing can constitute a subsurface trespass in Pennsylvania has, for the most part, been resolved. In Briggs v. Southwestern Production Company, several points of Pennsylvania law have been confirmed:
- Well operators may use hydraulic fracturing to drain oil and gas from under another’s property, at least in the absence of physical invasion.
- The rule of capture does not preclude trespass liability if the operation creates a physical invasion.
- The mineral owner’s complaint must specifically allege that the operator engaged in horizontal drilling that extended onto their property or that the operator propelled frack fluids and proppants across the property line.