Rigging Rights of Passage: Analyzing Subsurface Easements in Horizontal Drilling

Abstract

The judiciary and policy makers must address emerging issues presented by horizontal drilling and hydraulic fracturing, especially liability and trespass issues stemming from horizontal wellbore movement through the subsurface. Developing a subsurface easement scheme for obtaining safe wellbore passage is one example of the ongoing tension between balancing traditional property entitlements while accommodating modern technology and the public interest in energy development. This article is the first to provide a brief survey of the ways in which practitioners suggest resolving subsurface trespass and liability issues stemming from horizontal drilling in the subsurface easement context. This article proposes that courts should continue to respect traditional subsurface property rights, including the residue of the ad coelum doctrine. Recognizing the difficulties inherent in reconceptualizing the subsurface as a “public commons,” both private property owners and the oil and gas industry are well served by affirming existing “bright-line” private property entitlements in developing and marketing the mineral estate. Policy makers, recognizing the compelling public interest in profitable energy production, can and should implement appropriate regulatory or statutory means to rectify any practical difficulties arising from affirming existing subsurface entitlements.