Advocating for the Adoption of West Virginia’s Substantial Burden Standard Across the Mining States

Horizontal severance deeds separate property above and below the surface of land. In such deeds, typically the property rights below belong to mineral owners while property rights above belong to farmers. In most states, common law trespass utilizes what is generally known as the reasonable necessity doctrine to account for the rights that each owner has to enjoy in connection with his respective property. This doctrine has evolved over time and establishes the degree of surface damage that mineral owners can cause in accessing minerals below without becoming liable to the surface owner for damages. Recently, West Virginia made its standard more rigorous by prohibiting mineral owners from substantially burdening the surface estate. If other mining states like Texas and Pennsylvania were to incorporate West Virginia’s heightened standard into their respective doctrines, then the farming industry may receive greater national protection. And, since farming is currently thriving, heightened protection may even lead to greater national economic growth

Substantial Burden and the Reasonable Necessity Doctrine in Severance Deed Ownership: \u3cem\u3eWhiteman v. Chesapeake Appalachia\u3c/em\u3e

Horizontal severance deeds separate property rights above and below the surface. Sub-surface rights have typically belonged to mineral estate owners, whereas surface rights above have typically belonged to farmers. In West Virginia, courts have traditionally applied a common law trespass doctrine known as reasonable necessity to account for times when these bifurcated rights clash. The reasonable necessity doctrine in West Virginia has evolved over time as state courts have made it more rigorous by requiring that, in exercising their rights, sub-surface mineral estate owners not substantially burden the surface. The U.S. Court of Appeals for the Fourth Circuit’s decision in Whiteman v. Chesapeake Appalachia, L.L.C. applies the current standard to resolve disputes between the rights of surface and mineral estate owners in horizontal severance deed disputes. This Comment argues that the Fourth Circuit properly applied the heightened reasonable necessity doctrine that has developed in West Virginia common law over the past thirty years, and that in so doing, the court properly balanced the values that both mining and farming bring to the national economy