FORGIVE US OUR TRESPASS LAW

State Bar of Texas, Oil and Gas Disputes CLE, January 2020

by Ryan Clinton

I. INTRODUCTION

The law of trespass in Texas is simple in theory: was there an unauthorized entry on land belonging to another? If so, the plaintiff has a cause of action even if uninjured; if not, the plaintiff is out of luck. But in reality, Texas trespass law isn’t so simple. Nor is it internally consistent. Nor has it been consistent over time. This paper takes a high-level walk through Texas trespass law and attempts to shed light on what the law has been and what it appears to be now.

Section II discusses the ordinary rules of Texas trespass law, including the two different damages measurements, the impact of intent, and the burden of proof on the element of consent. Section III discusses subsurface-trespass issues including negligent damage to a common pool, drilling into a neighboring subsurface, the consequences of injected water crossing subsurface property lines, and whether “fracing” across subsurface property lines constitutes an actionable trespass. Section IV briefly covers the law on geophysical trespass and Section V briefly discusses so-called Kishi trespass. Finally, Section VI analyzes the related subjects of the accommodation doctrine as well as the overuse or negligent use of the surface estate.

II. The Rules of Trespass

Trespass “is defined as an unauthorized entry upon the land of another.” Mathis v. Barnes, 377 S.W.3d 926, 931 (Tex. App.—Tyler 2012, no pet.). “A trespass can be either by entry of a person on another’s land or by causing or permitting a thing to cross the boundary of the premises,” and such an unauthorized entry “is a trespass even when there is no or only slight damage.” Id. The ultimate “measure of damages in a trespass case is the sum necessary to make the victim whole, no more, no less.” Meridien Hotels, Inc. v. LHO Fin. P’ship I, L.P., 255 S.W.3d 807, 821 (Tex. App.—Dallas 2008, no pet.). The type of damages allowed in a trespass case depends on the character of the injury—i.e., temporary or permanent—and the intent of the tortfeasor.

A. The Traditional Rules: Temporary v. Permanent Injury

The Texas Supreme Court has described “permanent” injuries to land as those that are “constant and continuous, not intermittent or recurrent.” Kraft v. Langford, 565 S.W.2d 223, 227 (Tex. 1978). For example, in Porras v. Craig, the defendant committed permanent injury to land by clearing plaintiff’s property, cutting down a number of large trees, and constructing a fence on the property. 675 S.W.2d 503, 504 (Tex. 1984). Temporary injuries, in contrast, were defined as being “sporadic” in nature and capable of termination. Kraft, 565 S.W.2d at 227. Examples of injuries to land deemed temporary include the removal of gravel (which could be easily replaced), Moore v. Rotello, 719 S.W.2d 372, 375 (Tex. App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.), and continuously driving over the plaintiff’s parking lot (which can be stopped), Mangham v. Hall, 564 S.W.2d 465, 466-67 (Tex. Civ. App.—Corpus Christi 1978, writ ref’d n.r.e.).

When the injury caused by trespass to real property is “a temporary injury,” compensable damages are “the cost to repair any damage to the property, loss of use of the property, and loss of any expected profits from the use of the property.” Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 921 (Tex. 2013); see Bradley v. McIntyre, 373 S.W.2d 389, 391 (Tex. Civ. App.—Houston 1963, writ ref’d n.r.e.). The “cost of repair” damages are “the reasonable cost[s] of the repairs necessary to restore the property to its condition immediately prior to the injury . . . .” Z.A.O., Inc. v. Yarbrough Drive Ctr., J.V., 50 S.W.3d 531, 545 (Tex. App.—El Paso 2001, no pet.). And the “loss of use” damages are damages for any injury sustained “by being deprived of the use of the property” by the trespass. Id.

Under unique circumstances, a plaintiff may also be able to demonstrate and recover lost profits, such as when a laundromat owner proved that the defendant’s trespasses on its parking lot caused the laundromat to lose customers who could not access the establishment. Mangham, 564 S.W.2d at 466, 470. “Typically, the [plaintiff] could not recover both reasonable rent and lost profits” because doing so “would, in most cases, constitute a double recovery.” Coinmach Corp., 417 S.W.3d at 921 n.7. “Lost profits are measured by deducting operating expenses from gross earnings, resulting in net profits.” Id. “Reasonable rent” is “the value of the use of the property” of which the trespasser deprived the owner. Id.

When the injury is permanent in nature, compensable damages are measured by “the difference between the value of the land immediately before the injury and immediately after.” Gilbert Wheeler, Inc. v. Enbridge Pipelines (East Texas), L.P., 449 S.W.3d 474, 478 (Tex. 2014) (quoting Fort Worth & D.C. Ry. Co. v. Hogsett, 67 Tex. 685, 4 S.W. 365, 366 (1887)). The difference between the standard measure of damages for temporary and permanent injuries reflects “the notion that the ordinary measure of damages is the cost to restore the property,” but “[w]hen restoration is not possible, . . . [courts] award damages equal to the loss in fair market value of the property as a whole.” Id. at 479.

B. A New Definition of Temporary v. Permanent

Calling the application of the temporary-versus-permanent-injury doctrine “vexing,” the Texas Supreme Court set out to provide clarification in Gilbert Wheeler. Id. at 478-80. There, the Court provided a new definition of the forms of injuries:

For the sake of clarity, we reformulate these definitions in the following way. An injury to real property is considered permanent if (a) it cannot be repaired, fixed, or restored, or (b) even though the injury can be repaired, fixed, or restored, it is substantially certain that the injury will repeatedly, continually, and regularly recur, such that future injury can be reasonably evaluated. Conversely, an injury to real property is considered temporary if (a) it can be repaired, fixed, or restored, and (b) any anticipated recurrence would be only occasional, irregular, intermittent, and not reasonably predictable, such that future injury could not be estimated with reasonable certainty.

Id. at 480.

C. “Flexibility” in Determining the Measure of Damages

In Gilbert Wheeler, the Texas Supreme Court did not stop at “reformatting” the definitions of temporary and permanent injuries. The Court went on to hold that its traditional measurements of damages for each are not applied with rigidity but rather with “flexibility, considering the circumstances of each case to ensure that an award of damages neither over nor under-compensates a landowner for damage to his property.” Id. at 481. The Court first acknowledged “the general rule in cases involving injury to real property is that the proper measure of damages is the cost to restore or replace, plus loss of use for temporary injury, and loss in fair market value for permanent injury.” Id. But then the Court recognized that Texas courts have applied “a number of exceptions” to this general rule to prevent a landowner from being compensated “unjustly.” Id. The Court focused on two of those “exceptions” to the general measurement standards for permanent versus temporary injury to land.

1. The Economic Feasibility Rule

The first exception to the general damages rules for injuries to land is the “economic feasibility exception.” Id. at 481-82. This rule holds that in cases of temporary injury to land, “when the cost of required repairs or restoration exceeds the diminution in the property’s market value to such a disproportionately high degree that the repairs are no longer economically feasible,” the temporary injury is “deemed permanent, and damages are awarded for loss in fair market value” rather than for cost of repair. Id. at 481. As an example, the Texas Supreme Court pointed to a case in which the cost of restoration of the land exceeded the value of the land “by more than six times.” Id. (citing N. Ridge Corp. v. Walraven, 957 S.W.2d 116, 119 (Tex. App.—Eastland 1997, pet. denied)). “As a result, the court of appeals [in that case] concluded that the repairs were not economically feasible as a matter of law, and awarded damages in keeping with the loss in the property’s fair market value.” Id.

But although the rule gets its name from circumstances in which a temporary injury will be compensated as a permanent injury (because the cost of repair greatly exceeds the loss in market value and is thus “economically infeasible”), the rule apparently applies the other way around as well. In other words, when an injury might arguably be considered permanent, the damages measure for temporary injuries will nonetheless apply when the change in market value far exceeds the cost of repair. Id. at 482. As an example of this, the Court cited a case in which a landowner’s facility was completely destroyed by a tortfeasor. Id. (citing Coastal Transport Co. v. Crown Central Petroleum, 136 S.W.3d 227, 235 (Tex. 2004)). There, the jury had determined that the cost of replacement was far cheaper than the loss in market value. Id. Thus, even though the landowner argued that the injury was permanent because “the facility had been totally destroyed,” the Court “held that the landowner was ‘entitled to recover only the amount of money necessary to rebuild its facility and to compensate for its loss of use during the interim.’” Id. (quoting Coastal, 136 S.W.3d at 235).

As a result, it appears that the economic feasibility exception will generally favor the lower measure of damages. If either measure of damages (change in market value or cost or repair) far exceeds the other, the lesser will apply.

2. The Intrinsic Value of Trees

Another exception to the general damages rules for temporary and permanent injuries is the “Intrinsic Value of Trees Exception”:

In cases involving real property injured by the destruction of trees, even when the proper measure of damages is the loss in the fair market value of the property to which the trees were attached, and the value of the land has not declined, we have held that the injured party may nevertheless recover for the trees’ intrinsic value. This exception was created to compensate landowners for the loss of the aesthetic and utilitarian value that trees confer on real property.

Id. at 482. This exception is available “when a landowner can show that the destruction of trees on real property resulted in no diminishment of the property’s fair market value, or in so little diminishment of that value that the loss is essentially nominal . . . .” Id. at 483.

D. Trespasser’s Intent

Persons who trespass “under a good faith belief that they are entitled to do so” are potentially liable for those damages listed above, “but nothing more.” Coinmach Corp., 417 S.W.3d at 921. However, those “who knowingly and intentionally trespass, or who do so maliciously, may be liable for additional forms of damages.” Id. at 922. Punitive damages may be available when “actual damage has been sustained and the trespass upon the plaintiff’s property is shown to have been deliberate and intentional.” Id. (citing Pargas of Longview, Inc. v. Jones, 573 S.W.2d 571, 574 (Tex. Civ. App.—Texarkana 1978, no writ). Of course, “exemplary damages [remain] recoverable only when ‘the harm . . . results from: (1) fraud; (2) malice; or (3) gross negligence.” Coinmach Corp., 417 S.W.3d at 922 (quoting Tex. Civ. Prac. & Rem. Code § 41.003(a)). A trespasser “will not be liable for exemplary damages when the trespasser acted ‘in good faith,’ ‘without wrongful intention,’ or ‘in the belief that he was exercising his rights.’” Id. (quoting Wilen v. Falkenstein, 191 S.W.3d 791, 800 (Tex. App.—Fort Worth 2006, pet. denied)).

E. Preference in Favor of Temporary?

In describing the measurements of damages for temporary versus permanent injuries to land, the Supreme Court in Gilbert Wheeler wrote that its “rules are premised on the notion that the ordinary measure of damages is the cost to restore the property. When restoration is not possible, however, we award damages equal to the loss in fair market value of the property as a whole.” 2014 WL 4252273, at *3. This seems to suggest that the default measure of trespass damages is the cost to repair—so long as restoration is possible and so long as the cost of restoration does not greatly exceed the loss in market value.

F. Lack of Consent Is an Element (and It’s Plaintiff’s Burden to Prove)

In Environmental Processing Sys., L.C. v. FPL Farming Ltd., 457 S.W.3d 414 (2015), the Texas Supreme Court took on the task of determining whether lack of consent is an element of the trespass cause of action and, if so, which party has the burden to prove it. The Court began its analysis by observing that “[t]his Court has consistently defined a trespass as encompassing three elements: (1) entry (2) onto the property of another (3) without the property owner’s consent or authorization.” Id. at 419. After tracing the definition of trespass in Texas precedent over more than a century, the Court wrote:

[T]he definition of a common law trespass has remained constant throughout this Court’s jurisprudence and has become a well-established rule relating to property rights. At its core, a ‘[t]respass 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.’ We have never departed from the inclusion of lack of consent or authorization in the definition of a trespass.

Id. at 422 (citing Barnes v. Mathis, 353 S.W.3d 760, 764 (Tex. 2011)).

With that resolved, the Court turned to deciding which party has the burden to prove consent or lack of consent. Id. The Court acknowledged that some intermediate appellate court opinions had treated consent as an affirmative defense that must be proved by the defendant, but concluded that “no well-reasoned allocation of the burden of proving consent in trespass cases has emerged from our courts of appeals.” Id. at 423. Instead, the Court concluded:

[T]o maintain an action for trespass, it is the plaintiff’s burden to prove that the entry was wrongful, and the plaintiff must do so by establishing that entry was unauthorized or without its consent.

Id. at 425. In so holding, the Court noted that it was unconcerned that plaintiffs would have a difficult time demonstrating the lack of consent:

We do not believe it will be difficult for a landowner or possessory interest holder to prove lack of consent or authorization. After all, the landowner or possessor who is bringing suit is in the best position to provide evidence on whether an alleged trespasser’s presence was unauthorized because only “someone acting with the authority of the landowner or one with rightful possession” can authorize, or consent to, the entry.

Id. at 424 (quoting Gen. Mills Rests. Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 835 (Tex. App.—Dallas 2000, no pet.)).

III. Subsurface Trespass

Although the ordinary rules of trespass law are relevant to the oil-and-gas industry, the law of subsurface trespass is particularly critical. Unfortunately, Texas precedent on the subject has been highly inconsistent over the course of decades. And although we can reach an understanding of what the law was, and what it appears to be now, some may find the lack of consistency in the law to be troubling.

A. Negligent Damage to Neighboring Leasehold

Among the first opportunities for the Texas Supreme Court to weigh in on trespass-type allegations between neighboring mineral-estate owners was Eliff v. Texon Drilling Co., 146 Tex. 575, 210 S.W.2d 558 (1948). The plaintiffs in Eliff owned the surface estate and a portion of the minerals (which were leased) on their lands. 210 S.W.2d at 559. The defendants—lessees on neighboring lands overlying a common pool of minerals—were in the process of drilling a well when it “blew out, caught fire and cratered.” Id. The blowout of defendants’ well caused an opening in the ground that eventually “enveloped and destroyed” an oil well and two water wells on the plaintiff’s land, and the eruption caused “large quantities of gas and distillate” to be drained from the common pool. Id. The jury found for the plaintiffs, but the court of appeals reversed—holding that the rule of capture barred the plaintiffs from recovering for oil and gas drained from its land. Id. at 560. The Texas Supreme Court agreed to take the case to decide “whether the law of capture absolves [the defendants] of any liability for the negligent waste or destruction of [plaintiffs’] gas and distillate” that “occurred after the minerals had been drained from beneath [the plaintiffs’] lands.” Id.

Rejecting the view of the Supreme Court of Louisiana, the Texas Supreme Court reasoned that in Texas, a “landowner is regarded as having absolute title in severalty to the oil and gas in place beneath his land,” that the rule of capture is limited in nature, and that science has advanced to such a state that “experts can determine approximately the amount of oil and gas in place in a common pool, and can also equitably determine the amount of oil and gas recoverable by the owner of each tract of land under certain conditions.” Id. at 561 (citation omitted). Although the rule of capture is a “qualification” on that right, the Court wrote:

The oil and gas beneath the soil are considered a part of the realty. Each owner of land owns separately, distinctly and exclusively all the oil and gas under his land and is accorded the usual remedies against trespassers who appropriate the minerals or destroy their market value.

Id. Although the Court “conceded that under the law of capture there is no liability for reasonable and legitimate draining from a common pool,” that rule “should not be extended so as to include the negligent waste or destruction of the oil and gas.” Id. at 562. And because “the negligent waste and destruction of [the plaintiffs’] gas and distillate was neither a legitimate drainage of the minerals from beneath their lands nor a lawful or reasonable appropriation of them,” the plaintiffs “did not lose their right, title and interest in them under the rule of capture” when the defendants’ actions drained and destroyed them. Id. at 563.

B. Drilling Into a Neighboring Leasehold Estate

Two years after Eliff, the Texas Supreme Court was asked to intervene in a case between neighboring leasehold-estate owners whose lands shared a common pool of minerals. See Hastings Oil Co. v. Texas Co., 149 Tex. 416, 234 S.W.2d 389 (1950). In Hastings, the plaintiffs alleged that the neighboring leasehold-estate owners’ wellbore deviated across the property line and onto the plaintiffs’ leasehold estate, and sought a temporary restraining order to halt the well’s continued drilling until a more scientifically accurate survey could be performed. Id. at 390-91.

The question for the Supreme Court was whether Texas law empowered the trial court to grant the injunction—which the Court ultimately answered “yes.” Id. at 393, 396-98. But in answering that question, the Court provided significant analysis on the validity and nature of the trespass allegations under Texas law. First, the Court explained that the allegations advanced by the plaintiffs did support a trespass claim, and that courts are impowered to act in equity to prevent a trespass:

[The plaintiffs] allege, upon information and belief, that [the defendants] have trespassed upon their property by drilling into their subsurface…. The trial court heard testimony, found there is probable cause to believe that the trespass has occurred and ordered the survey under conditions which would seem adequately to protect [the defendants’] true interests. Under those circumstances, we cannot say that the court’s order was not in accord with proper usage of a court of equity.

Id. at 396.

And notably for the oil-and-gas industry, the Court rejected the defendants’ argument that no injury had occurred because no minerals had been produced from the well and the only arguable damage was to the “subsurface.” Id. at 397. The Court wrote:

[I]n instances of trespass to mining property[,] greater latitude is allowed courts of equity than in restraining ordinary trespasses to realty, “since the injury goes to the immediate destruction of the minerals which constitute the chief value of this species of property.” Trespasses of this character are irreparable because they subtract from the very substance of the estate, hence equity is quick to restrain them.

Id. at 398 (internal quotation omitted).

Nearly seventy years later, the Texas Supreme Court reached the opposite conclusion in Lighting Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39 (Tex. 2017). In Lighting, the owner of a leasehold estate planned to drill its well through a neighboring leasehold estate in order to avoid drilling on the surface of a wildlife management area. Id. at 42-43. The owner of the neighboring leasehold estate objected and—as in Hastings—sought a temporary restraining order to prohibit the neighbor’s drilling into its leasehold estate. Id. at 43-44. The trial court denied the restraining order and the court of appeals affirmed—reasoning that “the mineral estate owner does not control the subsurface mass” and is entitled only to a “fair chance” to recover minerals from a common pool. Id. at 44. The Texas Supreme Court granted the case to decide “whether a lessee’s rights in the mineral estate include the right to preclude a surface owner or an adjacent lessee’s activities that are not intended to capture the lessee’s minerals, but rather are intended only to traverse, or bore through, the formations in which the lessee’s minerals are located.” Id. at 46.

The Court started by providing background on the law of trespass, noting that:

“[t]respass 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,” id. (citing Barnes v. Mathis, 353 S.W.3d 760, 764 (Tex. 2011);
“[e]very unauthorized entry upon land of another is a trespass even if no damage is done or injury is slight,” Lighting, 520 S.W.3d at 46 (citing Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 12 n.36 (Tex. 2008)); and
“[t]he owner of realty generally ‘has the right to exclude all others from use of the property,” Lighting, 520 S.W.3d at 46 (citing Envtl. Processing Sys., L.C. v. FPL Farming Ltd., 457 S.W.3d 414, 424 (Tex. 2015)).

The Court noted the plaintiff’s allegations that the trespassing party’s drilling “will indisputably extract a portion of the subsurface roughly equivalent to the volume of the wellbore—i.e., the cuttings pushed to the surface during the drilling process—and that material will contain minerals.” Id. Moreover, the plaintiff alleged, “[t]he drilling will also … result in permanent structures in and through the subsurface that will interfere with its dominant mineral estate and its exclusive right to produce the minerals.” Id.

These allegations were not enough to convince the Court to stop the neighbor’s drilling through the plaintiff’s minerals. In an opinion that highlighted limitations on the rights of leasehold-estate owners, the Court wrote:

[T]he rights conveyed by a mineral lease generally encompass the rights to explore, obtain, produce, and possess the minerals subject to the lease; they do not include the right to possess the specific place or space where the minerals are located. Thus, an unauthorized interference with the place where the minerals are located constitutes a trespass as to the mineral estate only if the interference infringes on the mineral lessee’s ability to exercise its rights.

Id. at 49. Although the plaintiff alleged that the neighboring leasehold-estate owner’s drilling of multiple wells would damage its ability to drill its own wells, the Court did not agree—writing that “speculation is not enough. To obtain injunctive relief, [the plaintiff] must have proved that absent such relief, it will suffer imminent, irreparable harm.” Id. at 49. The Court also reasoned that the defendant’s drilling would be adequately regulated by Railroad Commission oversight and limited by the accommodation doctrine—since the drilling neighbor could access the subsurface leased by the plaintiff only with the surface-estate owner’s permission. Id. at 49-50.

Finally, although the Court wrote at the beginning of the opinion that the taking of the plaintiff’s minerals in the process of drilling the defendant’s wells “cannot be ignored,” id. at 47, it does not amount to any actual actionable claim. The Court explained that whether “the small amount of minerals lost through [the drilling] process will support a trespass action must … be answered by balancing the interests involved.” Id. at 50. Although the “drilling activities will inevitably remove some of the minerals [the plaintiff] holds under its lease,” permitting such drilling is more consistent with “the longstanding policy of this state to encourage maximum recovery of minerals and to minimize waste.” Id. at 51. The Court concluded:

[W]e have no doubt that individual interests in the oil and gas lost through being brought to the surface as part of drilling a well are outweighed by the interests of the industry as a whole and society in maximizing oil and gas recovery. That being so, we conclude that the loss of minerals [the plaintiff] will suffer by a well being drilled through its mineral estate is not a sufficient injury to support a claim for trespass. Accordingly, such a loss will not support injunctive relief.

Id.

C. Injected Water Crossing Property Lines

Another subsurface-trespass issue that the Texas Supreme Court has touched upon is the consequence of injected water crossing property lines onto a neighboring subsurface estate. In Railroad Comm’n of Tex. v. Manziel, for example, the lessee of one mineral estate sued to stop a Railroad Commission order permitting the lessee of a neighboring estate to inject water into a well to enhance mineral recovery. 361 S.W.2d 560, 561-62 (Tex. 1962). The Court recognized that the water injection would negatively affect the neighboring leasehold estate, noting that “[w]ater injected into an oil reservoir generally spreads out radially from the injection well bore,” “it is impossible to restrict the advance of the water to lease lines,” and the water may eventually encroach so much that it will “drown out” neighboring oil wells. Id. at 564. The plaintiff argued that the Railroad Commission has no authority to “authorize … a trespass by injected water that will result in the premature destruction of their [producing oil] well.” Id. at 565.

Although technically, the only issue in the case was “whether there is substantial evidence in the record” to support the Railroad Commission’s finding of necessity for the injection well, id. at 566, the Court took the opportunity to discuss Texas trespass law. “To constitute trespass[,] there must be some physical entry upon the land by some ‘thing.” Id. at 657. “[B]ut,” the Court asked, “is injected water that crosses lease lines from an authorized secondary project the type of ‘thing’ that may be said to render the adjoining operator guilty of trespass?” Id. To answer that question, the Court looked to the public policy ramifications of its decision—ultimately landing on a “balancing of interests” approach. Id. at 568. The Court wrote:

Secondary recovery operations are carried on to increase the ultimate recovery of oil and gas, and it is established that pressure maintenance projects will result in more recovery than was obtained by primary methods. It cannot be disputed that such operations should be encouraged, for as the pressure behind the primary production dissipates, the greater is the public necessity for applying secondary recovery forces. It is obvious that secondary recovery programs could not and would not be conducted if any adjoining operator could stop the project on the ground of subsurface trespass.

Id. The Court continued:

The orthodox rules and principles applied by the courts as regards surface invasions of land may not be appropriately applied to subsurface invasions as arise out of the secondary recovery of natural resources. … We conclude that if, in the valid exercise of its authority to prevent waste, protect correlative rights, or in the exercise of other powers within its jurisdiction, the Commission authorizes secondary recovery projects, a trespass does not occur when the injected, secondary recovery forces move across lease lines, and the operations are not subject to an injunction on that basis. The technical rules of trespass have no place in the consideration of the validity of the orders of the Commission.

Id. at 568-69.

The Texas Supreme Court appeared to pull back from that view fifty years later—when it held, in FPL Farming Ltd. v. Environmental Processing Sys., L.C., that the granting of a deep subsurface-injection permit by the Texas Commission on Environmental Quality does not bar liability for subsurface trespass of injected water. 351 S.W.3d 306, 310-15 (Tex. 2011). There, a surface-estate owner sued the operator of deep wastewater-injection wells on neighboring property “for physical trespass based on alleged subsurface migration of water injected in the permitted well.” Id. at 307. The court of appeals held that the defendant’s receipt of the water-injection permit “immunized” the defendant “from trespass liability.” Id. at 310.

But this time, the Texas Supreme Court disagreed. The Court wrote that “a permit granted by an agency does not act to immunize the permit holder from civil tort liability from private parties for actions arising out of the use of the permit.” Id. According to the Court, “[t]his is because a permit is a ‘negative pronouncement’ that ‘grants no affirmative rights to the permittee,” but instead merely “removes the government imposed barrier to the particular activity requiring a permit.” Id. at 310-11 (citing Magnolia Petroleum Co. v. R.R. Comm’n, 141 Tex. 986, 170 S.W.2d 189, 191 (1943)). And, distancing itself from Manziel, the Court wrote that it had never held that an injection permit from the Railroad Commission shields an injection operator from liability, but rather only held that “Railroad Commission authorizations of secondary recovery projects are not subject to injunctive relief based on trespass claims.” FPL Farming, 351 S.W.3d at 313. However, the Court importantly noted that it was not deciding—and would leave for another day—the question of “whether subsurface wastewater migration can constitute a trespass, or whether it did so in this case.” Id. at 314-15.

The Court got its opportunity to answer that question when the FPL case made its way back to the Court a few years later. Again, the “landowner sued its neighbor, the operator of an adjacent wastewater disposal facility, on the theory that deep surface wastewater trespassed beneath the landowner’s property.” Environmental Processing Sys., L.C. v. FPL Farming Ltd., 457 S.W.3d 414, 416 (Tex. 2015). The key legal question was whether the jury charge correctly reflected trespass law by requiring the plaintiff to prove lack of consent to the incursion. Id. at 418. The Court repeated its often-stated view that “[e]very unauthorized entry upon land is a trespass even if no damage is done,” id. at 422, and ultimately held that “it is the plaintiff’s burden to prove that the entry was wrongful, and the plaintiff must do so by establishing that entry was unauthorized or without its consent,” id. at 425. Because the jury held that the plaintiff failed to meet its burden of proof on the trespass claim, however, the Court held that it need not decide whether subsurface migration of injected wastewater presents a cognizable trespass claim—again declining to answer the question. Id. (no “need to decide whether Texas law recognizes a trespass cause of action for deep subsurface water migration”).

D. What About “Fracing”?

Although the Texas Supreme Court has told us that we don’t know whether subsurface migration of injected wastewater presents a cognizable trespass claim, see Environmental Processing Sys., L.C. v. FPL Farming Ltd., 457 S.W.3d 414, 425 (Tex. 2015), we do now have clarity over whether subsurface drainage of mineral resources due to injected substances is sufficient to support the recovery of damages in a trespass claim: it is not. See Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 11-17 (Tex. 2008). But before we get to Coastal, we should review the pre-Coastal cases that provided a different answer.

The Texas Supreme Court first took up the issue of “fracing” in Gregg v. Delhi-Taylor Oil Corp., 162 Tex. 26, 344 S.W.2d 411 (1961). The question in that case was “whether the courts of Texas have and will exercise the power to grant injunctive relief to preserve the status quo upon allegations and proof that a neighbor is about to fracture an oil and gas producing horizon beyond his property lines for the purpose of increasing the productivity of the neighbor’s well.” Id. at 412. Answering that question “yes,” id., at 415, the Court explained its view—at the time—of subsurface trespass by fracturing:

We think the allegations are sufficient to raise an issue as to whether there is a trespass. The invasion alleged is direct and the action taken is intentional. Gregg’s well would be, for practical purposes, extended to and partially completed in Delhi-Taylor’s land. The pleadings allege a physical entrance into Delhi-Taylor’s leasehold. While the drilling bit of Gregg’s well is not alleged to have extended into Delhi-Taylor’s land, the same result is reached if in fact the cracks or veins extend into its land and gas is produced therefrom by Gregg. To constitute a trespass, “entry upon another’s land need not be in person, but may be made by causing or permitting a thing to cross the boundary of the premises.”

Id. at 416. In so holding, the Court rejected the idea that the Railroad Commission was the best place to handle disputes over competing oil-and-gas development interests. Id. at 418-19. There is no difference, reasoned the Court, between fracing into a neighboring leasehold estate and “bottoming … a directionally drilled well upon the land of a neighbor.” Id. at 419. Each constitutes “an enjoinable trespass.” Id.

In 1990, the Texas Supreme Court positively cited Gregg for the holding that “the sand-fracturing technique that would extend cracks into adjacent landowners’ property [is] a legal ‘trespass,” although the Court also noted “that the Railroad Commission had not expressly approved the use of [the] technique” in that case. Amarillo Oil v. Energy-Agri Products, 794 S.W.2d 20, 27 (Tex. 1990).

And in 1992, the Texas Supreme Court reached the same conclusion again in a released—and subsequently withdrawn—opinion in Geo Viking, Inc. v. Tex-Lee Operating Co., No. D-1678, 1992 WL 80263 (Tex. 1992) (per curiam), withdrawn on reh’g, 839 S.W.2d 797 (Tex. 1992) (per curiam). In Geo Viking, an oil-and-gas lessee sued one of its contractors for “an improperly performed hydraulic fracturing (fracing) job on an oil well.” 1992 WL 80263, at *1. The lessee sought to recover in damages the value of not only the production it should have obtained from its own leasehold estate, but also those that it would have recovered by fracing into its neighbor’s subsurface. Id. at *2. But the Texas Supreme Court held that the lessee was not entitled to damages for unrecovered minerals that would have been drained from the neighbor’s estate. Id. The Court wrote:

Fracing under the surface of another’s land constitutes a trespass. Gregg v. Delhi-Taylor Oil Corp., 162 Tex. 26, 344 S.W.2d 411, 416 (1961); Amarillo Oil v. Energy-Agri Products, 794 S.W.2d 20, 27 (Tex. 1990). Therefore, the rule of capture would not permit [the lessee] to recover for a loss of oil and gas that might have been produced as the result of fracing beyond the boundaries of its tract.

Id. at *2. However, as mentioned, the Court withdrew its opinion—and withdrew the case as improvidently granted—on rehearing. 819 S.W.2d at 797-98.

The Texas Supreme Court reversed course completely in Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1 (Tex. 2008). In Coastal, the “primary issue” on appeal was “whether subsurface hydraulic fracturing of a natural gas well that extends into another’s property is a trespass for which the value of gas drained as a result may be recoverable as damages.” Id. at 5. The Court first acknowledged that had the defendant “caused something like proppants to be deposited on the surface” of its neighbor’s land, “it would be liable for trespass.” Id. at *11. But, the Court said, the “ancient common law maxim that land ownership extends to the sky above and the earth’s center below … has no place in the modern world.” Id. The Court reasoned:

Wheeling an airplane across the surface of one’s property without permission is a trespass; flying the plane through the airspace two miles above the property is not. Lord Coke, who pronounced the maxim, did not consider the possibility of airplanes. But neither did he imagine oil wells. The law of trespass need no more be the same two miles below the surface than two miles above.

Id.

The Court acknowledged that “drilling a deviated or slant well—a well that departs from the vertical significantly—bottomed on another’s property … is unlawful.” Id. at 13 (citing Hastings, 234 S.W.2d at 398). But, the Court reasoned, there is a difference between drilling into a neighboring property and fracing into a neighboring property. Id. at 13-14. In the former, the alleged trespasser is producing oil that has not “migrate[d] to the wellbore from another’s property; it is already on another’s property.” Id. at 14. But in the latter case, the oil “drains from property owned by one person onto property owned by another.” Id. Thus, according to the Court, in the case of fracing, the landowner being drained can protect himself by fracing his own well. Id.

The Court also reasoned that allowing recovery for trespass-by-fracing would “usurp[] to courts and juries the lawful and preferable authority of the Railroad Commission.” Id. at 14-15. In addition, according to the Court, the owner of oil or gas is not actually entitled to the oil and gas in place on his property, but rather “to ‘a fair chance to recover the oil and gas in or under his land, or their equivalents in kind.’” Id. at 15 (quoting Gulf Land Co. v. Atl. Ref. Co., 134 Tex. 59, 131 S.W.2d 73, 80 (1939)).

In addition, the Court reasoned that judges and juries are not “equipped to handle” determining the value of oil and gas drained by fracing because “the material facts are hidden below miles of rock, making it difficult to ascertain what might have happened.” Id. at 16. And finally, the Court noted, “no one in the industry appears to want or need” fracing to constitute a trespass. Id. at 16. The Court wrote:

Accordingly, we hold that damages for drainage by hydraulic fracturing are precluded by the rule of capture. It should go without saying that the rule of capture cannot be used to shield misconduct that is illegal, malicious, reckless, or intended to harm another without commercial justification, should such a case ever arise. But that certainly did not occur in this case, and no instance of it has been cited to us.

Id. at 17.

IV. GEOPHYSICAL TRESPASS

In Phillips Petroleum Co. v. Cowden, the Fifth Circuit was asked to determine whether a mineral-interest owner could recover against a party that trespassed on the mineral estate by conducting a seismic survey of the minerals from the separately owned surface estate above the minerals. 241 F.2d 586, 588 (5th Cir. 1957). After noting that no Texas law answered the question, id. at 590, the court ultimately held that the mineral-interest owner could “waive the trespass and sue in assumpsit for the reasonable value of the use and occupation,” id. at 592. Accordingly, the court held that even though the mineral-interest owner was not actually injured, it could recover against the geophysical trespasser “the reasonable market value of the use.” Id. at 593.

More recently, the San Antonio Court of Appeals held that a geophysical trespass alone is not actionable; to recover, a mineral-interest owner whose minerals were surveyed would be first required to demonstrate that the surveyors trespassed upon the surface estate above the minerals. Villarreal v. Grant Geophysical, Inc., 136 S.W.3d 265, 269-70 (Tex. App.—San Antonio 2004, pet. denied).

Thus, assuming Cowden and Villarreal are both correct, the law holds that a mineral-estate owner may sue a geophysical trespasser for surveying his minerals even if he is not injured, but only if the surveyor physically trespasses upon the surface estate above the minerals—even if the mineral-estate owner does not own the surface estate. The damages recoverable would be the “ascertainable market value” of the geophysical trespass, “independent of the benefit that [the surveyors] actually received . . . .” Cowden, 241 F.2d at 593.

V. KISHI TRESPASS

Another possible trespass cause of action is sometimes referred to as a “Kishi” trespass—i.e., when a party enters a lease currently subject to dispute and drills an unsuccessful well that causes a diminution in the market value of the leasehold interest. See Humble Oil & Refining Co. v. Kishi, 276 S.W. 190 (Tex. Comm’n App. 1925), set aside on reh’g, 291 S.W. 538 (Tex. Comm’n App. 1927); Humble Oil & Refining Co. v. Luckel, 154 S.W.2d 155, 157 (Tex. Civ. App.—Beaumont 1941, writ ref’d w.o.m.). In such a case, the plaintiff must demonstrate that the defendant’s wrongful exploration of the land “proximately resulted in the loss of the market value of his property.” Thomas v. Tex. Co., 12 S.W.2d 597, 598 (Tex. Civ. App.—Beaumont 1928, no writ). That change in market value would necessarily also be the measure of damages. See id.

VI. TRESPASS-ADJACENT: ACCOMODATION DOCTRINE & THE OVERUSE OR NEGLIGENT USE OF THE SURFACE ESTATE

In Texas, the surface estate of land is “servient” to the “dominant” mineral estate. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248-49 (Tex. 2013); Gen’l Crude Oil Co. v. Aiken, 162 Tex. 104, 344 S.W.2d 668, 669 (1961). This means that “[a] party possessing the dominant mineral estate has the right to go onto the surface of the land to extract the minerals, as well as those incidental rights reasonably necessary for the extraction.” Merriman, 407 S.W.3d at 248-49 (citing Tarrant Cnty. Water Control & Improvement Dist. No. One v. Haupt, Inc., 854 S.W.2d 909, 911 (Tex. 1993); Getty Oil Co. v. Jones, 470 S.W.2d 618, 621 (Tex. 1971)). In exercising its rights to use the surface estate, mineral-estate owners (or lessees) must exhibit “due regard to the rights of the surface owners.” Gen’l Crude Oil Co., 344 S.W.2d at 669 (citations omitted). In Texas case law, we see this balancing of interests manifest itself in three types of claims.

A. Failure to Accommodate the Surface Owner’s Existing Use

A surface owner may claim that the mineral-interest owner’s use of the surface estate has failed to accommodate the surface owner’s existing use. Merriman, 407 S.W.3d at 248-49. This is a very difficult claim to prove, however, because the mineral estate is the “dominant” estate, and therefore includes the “right to use as much of the surface as is reasonably necessary to extract and produce the minerals.” Id. at 249. In fact, “[i]f the mineral owner or lessee has only one method for developing and producing the minerals, that method may be used regardless of whether it precludes or substantially impairs an existing use of the servient surface estate.” Id. (emphasis added) (citing Haupt, 854 S.W.2d at 911; Getty Oil, 470 S.W.2d at 622). “On the other hand, ‘[i]f the mineral owner has reasonable alternative uses of the surface, one of which permits the surface owner to continue to use the surface in the manner intended . . . and one of which would preclude that use by the surface owner, the mineral owner must use the alternative that allows continued use of the surface by the surface owner.’” Id. (emphasis original) (quoting Haupt, 854 S.W.2d at 911-12). Therefore, to prevail on a failure-to-accommodate claim,

the surface owner has the burden to prove that (1) the lessee’s use completely precludes or substantially impairs the existing use, and (2) there is no reasonable alternative method available to the surface owner by which the existing use can be continued. If the surface owner carries that burden, he must further prove that given the particular circumstances, there are alternative reasonable, customary, and industry-accepted methods available to the lessee which will allow recovery of the minerals and also allow the surface owner to continue the existing use.

Id. (citations omitted). And, notably, the element that the surface owner has “no reasonable alternative method” to continue his existing use “is not met by evidence that the alternative method is merely more inconvenient or less economically beneficial than the existing method. Rather, the surface owner has the burden to prove that the inconvenience or financial burden of continuing the existing use by the alternative method is so great as to make the alternative method unreasonable.” Id. (citations omitted).

Plaintiffs in failure-to-accommodate cases frequently seek injunctive relief to prohibit the mineral-estate owner’s contested development of the property (in lieu of damages). E.g., Merriman, 407 S.W.3d at 246-47. Damages may also be available, however. See Getty Oil, 470 S.W.2d at 623. In Getty Oil, the Texas Supreme Court noted that in the event a failure-to-accommodate claim is proved, the mineral-estate owner or lessee “will have the right” to cure the claimed breach. Id. “[I]n such event,” the mineral-estate owner or lessee “will not be liable in damages beyond the decrease in the value of the use of the land from the time the interfering [equipment was] installed to the time of [its] removal.” Id.

B. More Surface Use Than Is Reasonably Necessary

“The holder of an oil and gas lease, in the absence of specific clauses relating to surface use . . . has the legal right to use as much of the surface as is reasonably necessary to comply with the terms of the lease and to carry out its purposes.” Macha v. Crouch, 500 S.W.2d 902, 904 (Tex. Civ. App.—Corpus Christi 1973, no writ). A surface owner therefore may assert a claim that the lessee has used more of the surface than is reasonably necessary to conduct oil-and-gas operations. Id. However, because the lessee’s “right to use and occupy the surface of the land to the extent that the same was reasonable and necessary for the purpose of drilling and producing” is “unqualified and unrestricted,” ordinary energy-exploration uses such as “construct[ing] and maintain[ing] tank batteries, slush pits, salt water pits, roads and pipelines” will ordinarily not be actionable. Id. at 905-06. To the extent a surface owner does prove that a lessee has used more of the surface than is reasonably necessary, he must also show either “permanent or temporary injury to the land” as required in any real-property damages case. Id. at 905.

C. Negligent Injury to Surface Estate

The lessee’s duty to reasonably exercise his right to use the surface estate with “due regard” for the rights of the surface owner includes a duty “not to negligently injure such estate.” Gen’l Crude Oil, 344 S.W.2d at 669 (citations omitted); see also Humble Oil & Refining Co. v. Williams, 420 S.W.2d 133, 134 (Tex. 1967) (“A person who seeks to recover from the lessee for damages to the surface has the burden of alleging and proving either specific acts of negligence or that more of the land was used by the lessee than was reasonably necessary.”). That the surface estate was damaged—e.g., by the building of roads or cutting of trees—is insufficient to demonstrate a cause of action against the lessee. Humble Oil, 420 S.W.2d at 135. The plaintiff must plead and prove negligence in accessing the surface estate. Once negligence is established, the surface owner must demonstrate damages based on the ordinary permanent-versus-temporary-injury dichotomy. E.g., Brown v. Lundell, 162 Tex. 84, 344 S.W.2d 863, 865 (Tex. 1961) (affirming judgment for permanent injury to land due to water contamination measured by change in market value of surface estate before and after injury); Gen’l Crude, 344 S.W.2d at 672 (same).

Forgive Us Our Trespass Law