United States: Pennsylvania Superior Court: Separate Consideration For Operated And Unoperated Acres Does Not Render An Oil And Gas Lease Severable

Last Updated: September 14 2015
Article by Paul K. Stockman, Alexander Martin Madrid and Anthony J. Carna

The recent boom in natural gas production in the Appalachian Basin has led to a concomitant boom in litigation, as landowners who are lessors in long-standing oil and gas leases seek declarations that the leases are no longer operative so that they may attempt to negotiate new leases with production companies. One particular ground for landowner challenges is the contention that a lease is "severable," such that it can be held to have partially lapsed (thus freeing up the "severed" estate or portion thereof for re-leasing). To date, those efforts have been largely unsuccessful. The Pennsylvania Superior Court's decision in Seneca Resources Corporation v. S&T Bank, No. 2057 WDA 2014 (Pa. Superior Ct. Aug. 31, 2015), is the latest in a string of Pennsylvania cases in which courts apply these leases' express terms and refuse to hold that the operative lease is severable, such that the landowner may enter into a new lease conveying production rights.

At issue in Seneca Resources was a 1962 lease involving storage and production rights over leased premises totaling 25,000 acres. At the inception of the lease, approximately 15,000 acres of the leased premises were developed, and the remaining 10,000 acres were undeveloped. The lease outlined separate consideration for the developed and undeveloped acreage, with the lessee paying royalties for any oil or gas produced from the operated acreage and a rental payment for the unoperated acreage. The landowners argued that, as a result of this language, the lease was severable and they had the right to terminate the lease with respect to the unoperated acreage after the 40-year primary term of the lease expired.

Following summary judgment in favor of Seneca Resources at the trial court, the Superior Court considered two questions. First, the Court addressed the landowners' contention that the lease was severable as to the operated and unoperated acreage. Following the Pennsylvania Supreme Court's holding in Jacobs v. CNG Transmission Corporation, 772 A.2d 445 (Pa. 2001), the Court reasoned that determination of whether a lease is severable depends upon examination of the language of the lease, the character of the consideration, the circumstances surrounding the lease's execution, the conduct of the parties, and any discernible intent of the original contracting parties that could be derived from the lease. In considering the language of the lease, the Court noted that the lease clearly and unambiguously defined the leased premises to encompass 25,000 acres for a primary term of 40 years and a secondary term that would continue indefinitely as long as oil or gas was produced or withdrawn from any portion of the leased premises. The Court also noted that neither the leasing clause nor the habendum clause made any distinction between operated and unoperated acreage and thus "the clear and unambiguous language of the Lease grants Seneca a fee simple determinable of the entire leasehold so long as the lessee stores, produces, or withdraws oil or gas from any portion of the 25,000 acres." As to the landowners' argument that the separate consideration provisions rendered the lease severable, the Court concluded that "the fact that consideration provisions include royalties, delay rentals, and storage rentals, and that unoperated acreage may be converted to operated acreage at any time, reflect an intent by the parties to enter an agreement to achieve the fullest development of the entire 25,000 acres of the leased premises." Accordingly, the Court concluded that the lease was entire and that the operable and unoperable acreages were not severable from each other.

The Court also rejected the landowners' argument that Seneca Resources had violated the implied covenant to develop by failing to develop approximately 3,000 acres of commercially viable land. The trial court held that because a portion of the leased premises was already developed at the time Seneca acquired the rights to the lease, the implied covenant to develop was inapplicable to the property as a whole. The Superior Court, following Jacobs, disagreed, reasoning that "the fact that the leased premises are under production at the time of the entry of the Lease does not, in itself, invalidate the implied covenant to develop." However, the Court noted that the express terms of the habendum clause provided that the lease would be extended if oil or gas were stored in, produced or withdrawn from "all or any portion of said leased premises." Because it was "undisputed that Seneca continues to drill and withdraw gas from a portion of the leased premises," the Court held that "the Lease between the Appellants and Seneca forecloses a finding of a breach of the implied covenant to develop and produce oil and gas on the unoperated acreage."

The Superior Court's decision in Seneca Resources provides further support for the proposition that courts will be reluctant to sever oil and gas leases, and will instead construe them according to their express terms.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions