Submitted: March 12, 2019
from the Circuit Court of Doddridge County The Honorable
Timothy L. Sweeney, Judge Civil Action No. 14-C-64
Nicolle R. Snyder Bagnell, Esq. Lucas Liben, Esq. Reed Smith
LLP Pittsburgh, Pennsylvania Counsel for the Petitioner EQT
L. Grubb, Esq. Kristina Thomas Whiteaker, Esq. The Grubb Law
Group Charleston, West Virginia David McMahon, Esq.
Charleston, West Virginia Counsel for the Respondents Margot
Beth Crowder and David Wentz
A. Patterson, III, Esq. Evan G. Conard, Esq. Bowles Rice LLP
Charleston, West Virginia Counsel for Amicus Curiae
Independent Oil and Gas Association of West Virginia, Inc.
F. McCuskey, Esq. Marc F. Mignault, Esq. Shuman, McCuskey
& Slicer, PLLC Charleston, West Virginia Counsel for
Amicus Curiae West Virginia Farm Bureau
Bradley Ward Stephens, Esq. Morgantown, West Virginia Counsel
for Amicus Curiae West Virginia Surface Owner's Rights
BY THE COURT
"A circuit court's entry of summary judgment is
reviewed de novo." Syl. Pt. 1, Painter v.
Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
"Generally, findings of fact are reviewed for clear
error and conclusions of law are reviewed de novo.
However, ostensible findings of fact, which entail the
application of law or constitute legal judgments which
transcend ordinary factual determinations, must be reviewed
de novo." Syl. Pt. 1, in part, State ex
rel. Cooper v. Caperton, 196 W.Va. 208, 470 S.E.2d 162
"An encroachment by one person on the land of another is
a trespass, although the damage may be negligible." Syl.
Pt. 2, Hark v. Mountain Fork Lumber Co., 127 W.Va.
586, 34 S.E.2d 348 (1945).
"The owner of the mineral underlying land possesses as
incident to this ownership the right to use the surface in
such manner and with such means as would be fairly necessary
for the enjoyment of the mineral estate." Syl. Pt. 1,
Squires v. Lafferty, 95 W.Va. 307, 121 S.E. 90
mineral owner or lessee has an implied right to use the
surface of a tract in any way reasonable and necessary to the
development of minerals underlying the tract. However, a
mineral owner or lessee does not have the right to use the
surface to benefit mining or drilling operations on other
lands, in the absence of an express agreement with the
surface owner permitting those operations.
Margot Beth Crowder and David Wentz own the surface of land
in Doddridge County, West Virginia. Defendant EQT Production
Company ("EQT") holds a century-old lease that
allows EQT to drill wells to extract oil and gas from beneath
the plaintiffs' surface estate. The plaintiffs brought
this lawsuit to challenge EQT's use of their surface
estate to drill horizontal wells that extend under
neighboring properties so that EQT can extract natural gas
from beneath those properties. The plaintiffs contend that
EQT's lease does not allow it to use their surface estate
to extract oil and gas from neighboring mineral estates.
Hence, the plaintiffs assert EQT is trespassing on their
surface tracts, to the extent it is drilling for and removing
minerals from neighboring properties.
Circuit Court of Doddridge County agreed with the plaintiffs
and entered an order granting partial summary judgment,
finding EQT trespassed to the extent it used the
plaintiffs' surface lands to conduct operations under
neighboring mineral estates. A jury subsequently awarded the
plaintiffs $190, 000.00 in damages. EQT appeals the circuit
court's partial summary judgment order and the jury's
reasons set forth below, we affirm the circuit court's
order and the jury's award of damages.
Factual and Procedural Background
of the plaintiffs' surface tracts traces back to Joseph
L. and Bell Carr who, in 1901, owned a 351 -acre tract in
Doddridge County, West Virginia. The Carrs owned the
"Carr Tract" in fee, ad coelum. "The
common law rule . . . is that a land owner with a fee simple
title owns everything over the land and under it to the
center of the earth. This rule extends to the minerals, be
they solid (like coal), fluid or fugacious minerals (like oil
and gas)." Faith United Methodist Church &
Cemetery of Terra Alta v. Morgan, 231 W.Va. 423, 429-30,
745 S.E.2d 461, 467-68 (2013).
August 1901, the Carrs leased the 351 acres of oil and gas
below the Carr Tract to the predecessors of EQT. The lease
agreement states that EQT's predecessor had a lease
"for the sole and only purpose of mining and operating
for oil and gas, and of laying pipe lines and building tanks,
stations and structures thereon, to take care of said
products[.]" The lease was to last "as long
thereafter as oil or gas . . . is produced therefrom[.]"
The parties agree that this lease remains in effect today.
1936, the Carrs and their successors in title owned the
entire 351-acre tract in fee (subject, of course, to the 1901
oil and gas lease). Then, the owner of the Carr Tract decided
to split the surface from the mineral estate beneath the
tract. In November 1936, the then-owner of the
Carr Tract, R.L. McCulty, conveyed to Grace Lowther "the
surface only" of the Carr Tract.  Mr. McCulty
retained the right to the oil and gas royalties from the 1901
lease, as well as sole ownership of any other minerals
beneath the surface.
mid-1970s, Grace Lowther and her successors had partitioned
the surface of the Carr Tract into several smaller parcels.
In 1975, one of these parcels, within the boundaries of the
original Carr Tract, was conveyed to the plaintiffs (Mr.
Wentz and Ms. Crowder). The plaintiffs, who were married,
constructed a home on their parcel built from timber cut on
the land, and moved into the home in April of 1977.
2003, the plaintiffs divorced. By several deeds, the
plaintiffs partitioned their surface estate between
themselves. Mr. Wentz now owns two parcels and Ms. Crowder
owns one parcel. All three surface parcels are within the
bounds of the 351-acre Carr Tract. Both plaintiffs live in
homes on the surface tracts at issue.
1901 and 1936, and under the 1901 oil and gas lease,
EQT's predecessors drilled three conventional vertical
wells on the surface of the 351-acre tract.These vertical
wells were designed to pull oil and gas from the rock strata
beneath the 351-acre Carr Tract. After the surface estate was
severed from the mineral estate in 1936, EQT's
predecessors drilled six more conventional vertical wells on
the Carr Tract, with the last being drilled in 1995.
2011, Patty J. and R. Keith Crihfield owned the mineral
estate beneath the Carr Tract, an estate that included the
right to royalties from the 1901 oil and gas lease. Defendant
EQT owned the right to drill and operate under the 1901 lease
and approached the Crihfields seeking to modify the lease. On
March 11, 2011, the Crihfields signed an "Amendment of
Ratification of Oil and Gas Lease" that allowed EQT to
pool and/or unitize and combine the rights provided by the
1901 lease with other leases to drill and extract oil and gas
under neighboring lands.
then sought permits to drill modern, horizontal Marcellus
shale gas wells on the plaintiffs' surface lands. EQT
designed the wells to extract gas from a total area of 3, 232
acres, not just the 351 acres beneath the Carr Tract. Modern
technology allowed EQT to initially drill vertically on the
plaintiffs' surface lands, but then curve the head of the
drill and extend the bore of the well ...