The Pennsylvania Supreme Court reaffirmed the rule of capture that allows an owner to withdraw oil and gas from beneath its property even if doing so draws oil and gas from beneath the land of others. The question was whether fracking is any different. In Briggs v. Southwestern Energy Production Co., 224 A.3d 334 (Pa. 2020), the court held that these rules do not change when an owner uses fracking techniques which pump large quantities of fluids (water and chemical additives) into an underground rock formation, even though the resulting fractures that are opened up may extend several hundred feet away -- including under the land of a neighbor. But fracking may well constitute a trespass if the fluids injected beneath one’s land enter neighboring land beneath the surface.
Some courts in the past have held that blasting activity on one’s own land that results in cracks in the surface of neighboring land do constitute a trespass. See Martin v. Reynolds Metals Co., 342 P.2d 790 (Or. 1959). Some courts have rejected such claims because they do not involve physical intrusions. See, e.g., Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 10 (Tex. 2008).
The Pennsylvania Supreme Court held that the mere fact that artificial techniques are used to withdraw minerals from beneath neighboring land does not prevent the owner from benefiting from the law of capture. It is not a trespass to drill on one’s own land and withdraw minerals, even if this has the effect of withdrawing minerals from beneath the land of neighbors. Nor may an owner dig in a manner that physically invades the boundaries of another owner’s property (even if done beneath the surface) without being liable for trespass.
To prove a trespass, the court seemed to hold that the plaintiff must show that the liquid injected into an owner’s property physically intruded on neighboring land. That seemed to suggest that the mere effect of underground fracturing on neighboring land would not constitute a physical intrusion; such a case would be governed, not by the law of trespass but by the law of nuisance. But if it can be proven that hydraulic fluids enter the land of another, that physical intrusion would seem to be a trespass.