United States: Updated Survey Of Texas Law On Horizontal Drilling And Subsurface Trespass

A trespass may be committed on, beneath or above the surface of the earth.1 While at one time it was feasible to think about trespass in terms of impermeable lines extending across swaths of land and vertically above and below the earth, such a circumscription does not fit neatly into present-day reality. Recognizing this reality, the Texas Supreme Court concluded that the maxim "cujus est solum ejus est usque ad coelum et ad inferos" – land ownership extends to the sky above and the earth's center below – "has no place in the modern world.2 ... The law of trespass need no more be the same two miles below the surface than two miles above."3

Trespass is a creature of common law.4 Thus the principles and rules delineating the law of trespass have been developed through the judgments of courts recognizing its application through usage and custom. With technological innovations, shifts in public policy and new fact patterns come the opportunity for Texas courts to examine anew the harm that occurs from the intrusion onto the property of another. In recent cases, the Texas Supreme Court has begun to tackle head-on the key question of whether trespass is a viable claim when applied to specific subsurface oil and gas extraction practices.

While there are many ways to organize the court's application of trespass law to surface and subsurface activities, this article will focus on two main themes: what we know and what questions remain unanswered.5 The goal is to use hypotheticals as a road map for identifying where a client's practices shift from clearly lawful into a realm of uncertainty.

I. Background Concepts

A. What are the legal theories that address harm caused by intrusion onto or into another's property?

Trespass is only one of several theories available to address harm. Nuisance law may apply if a condition substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities.6 Property owners have alleged nuisance claims when the intrusion is caused by foul odors, dust, noise and bright lights.7 Negligence law may also apply where an intrusion causes harm to property.8

If the alleged harm from the unlawful intrusion is drainage of oil and gas (regardless of the method used to cause the drainage, such as hydraulic fracturing), then the affected owner may be able to engage in self-help by drilling a well to offset drainage from its property.9 The mineral owner of the drained subsurface may also have a claim against its own lessee for breach of the implied covenant to protect against drainage and the implied covenant to develop mineral rights with reasonable diligence.10

B. What is trespass?

"Trespass to real property is an unauthorized entry upon the land of another, and may occur when one enters – or causes something to enter – another's property."11 It encompasses three elements: (1) entry (2) onto the property of another (3) without the property owner's consent or authorization.12 The burden of proving these elements, including unauthorized entry, lies with the plaintiff.13

Although there is no pattern jury charge for a "trespass to real property" cause of action in Texas, courts have upheld use of the following instructions.

Did [defendant] trespass on [plaintiff's] property?

"Trespass" means an entry on the property of another without having consent of the owner. To constitute a trespass, entry upon another's property need not be in person but may be made by causing or permitting a thing to cross the boundary of the property below the surface of the earth. Every unauthorized entry upon the property of another is a trespass, and the intent or motive prompting the trespass is immaterial.

Answer yes or no.14

"Trespasser" means one who enters on the property of another without having consent of the owner. To constitute a trespass, entry upon another's property need not be in person but may be made by causing or permitting a thing to cross the boundary of the premises. Every unauthorized entry upon land of another is a trespass, and the intent or motive prompting the trespass is immaterial.

Did [defendant] trespass causing damage to [plaintiff's] property on the date of the fire that is the basis of this suit?15

C. Who has standing to sue for trespass?

Owners of the surface estate and mineral estate may have standing to sue for injury to property, as may mineral lessors.16 In Coastal Oil and Gas Corp. v. Garza Energy Trust,17 the Texas Supreme Court specifically addressed the question of whether a mineral lessor who has a royalty interest and the possibility of reverter but no right to possess, explore for or produce the minerals has a possessory interest sufficient to support a claim for trespass or an "injury to the right of possession."18 The court answered in the affirmative. Analogizing the lessor's reversion interest in the minerals to a landlord's reversion interest in the surface estate (a cognizable legal claim19), the court held that this interest gave the lessor standing to sue for trespass, provided he could prove actual injury.20


1 City of Arlington v. City of Fort Worth, 873 S.W.2d 765, 769 (Tex. App. – Fort Worth 1994, writ dism'd w.o.j.).

2 Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 11 (Tex. 2008) (internal quotations and citation omitted) (hereinafter "Garza").

3 Id. at 11.

4 Id. at 36 (concurrence) ("Trespass is a court defined doctrine. It falls squarely on this Court's shoulders to decide what is action- able.").

5 Indeed, there are a number of articles providing insights into the same cases and issues raised in this paper, including Bruce M. Kramer, Horizontal Drilling and Trespass: A Challenge to the Norms of Property and Tort Law, 25 Colo. Nat. Resources Energy & Envtl. L. Rev. 291 (2014); and Owen L. Anderson, Subsurface "Trespass": A Man's Subsurface is Not His Castle, 49 Washburn L.J. 247 (2009-2010).

6 See Natural Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 153 (Tex. 2012).

7 Schneider Nat. Carriers, Inc. v. Bates, 147 S.W.3d 264, 269 (Tex. 2004).

8 See, e.g., Seminole Pipeline Co. v. Broad Leaf Partners, Inc., 979 S.W.2d 730, 738 (Tex. App. —Houston [14th Dist.] 1998, no et.).

9 See Garza, 268 S.W.3d at 14.

10 See id. at 14, 17-21.

11 Envtl. Processing Sys., L.C. v. FPL Farming Ltd., 457 S.W.3d 414, 422 (Tex. 2015) (citing Barnes v. Mathis, 353 S.W.3d 760, 764 [Tex. 2011]) (hereinafter "EPS") [No. 12-0905, February 6, 2015].

12 Id.

13 Id. at 423 (rejecting plaintiff's argument that consent is an af- firmative defense to be proved by the defendant).

14 Id. at 417.

15 Watson v. Brazos Elec. Power Coop., Inc., 918 S.W.2d 639, 645-46 (Tex. App. – Waco 1996, writ denied).

16 See, e.g., Seber v. Union Pac. R. Co., 350 S.W.3d 640, 653 (Tex. App. – Houston [14th Dist.] 2011) (holding that property ownership is a necessary element of a trespass claim; an ease- ment will not suffice); BP America Prod. Co. v. Marshall, 288 S.W.3d 430, 455 (Tex. App. – San Antonio 2008), rev'd on other grounds; 54 Tex. Sup. Ct. J. 978 (Tex. 2011), rehearing denied (Jul 01, 2011), rehearing denied (Aug 19, 2011) (mineral estate owner).

17 Garza, 268 S.W.3d at 4, 9-10.

18 Id. at 10.

19 Id. at n. 24 (citing Gulf, Colo. & Santa Fe Ry. v. Settegast, 79 Tex. 256, 15 S.W. 228, 230 (1891).

20 Id. at 11 (emphasizing that actual injury must be shown; thus, nominal damages are not available).

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