Getting Past Possession: Subsurface Property Disputes as Nuisances
March 17, 2020 | 95 Wash. L. Rev. 315
Joseph A. Schremmer
Abstract: Property rights in the subsurface of land are adapting to accommodate modern activities like massive hydraulic fracturing (fracking). Property rights will need to continue adapting if they are going to accommodate other developing activities like large-scale carbon capture and storage (CCS). Courts and commentators rarely approach the nature of subsurface property directly. They tend instead to discuss appropriate standards for tort liability when disputes arise—for example when artificial fissures from a frac treatment extend into and drain oil or gas from a neighbor’s land. The case law and literature generally approach unauthorized subterranean invasions as trespasses. Because the tort of trespass is designed to protect possession, its application indicates a view of subsurface property as possessory (or corporeal) in nature.
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Despite calling subsurface invasions “trespasses,” courts rarely impose liability for, or enjoin, invasions themselves. They instead find liability only for interferences with existing or foreseeable uses of the affected land. Leading scholars likewise advocate for a standard of subsurface “trespass” that would privilege encroachments that are societally valuable, and award compensation only for resulting harm to existing uses of the property. The cases and literature thus nominally apply trespass but modify the tort from a property rule into a liability rule resembling the tort of nuisance.
This Article is the first to examine unauthorized subsurface encroachments as nuisances, rather than trespasses, and to assert that such encroachments do not implicate possession. Drawing on geology, doctrine, and property theory, this Article interrogates the assumption that subsurface property is possessory. It analyzes prominent subsurface “trespass” cases involving waste disposal, enhanced oil recovery, fracking, natural gas storage, slant-hole wells, tunneling, and horizontal drilling to demonstrate that these disputes are already being resolved under nuisance-like principles. It argues that express application of nuisance law is doctrinally correct and would improve courts’ reasoning, harmonize disparate results, and more efficiently allocate costs of subsurface activities. The Article then discusses how viewing subsurface invasions as nuisances would remove legal barriers to implementation of new and emerging climate change mitigating technologies that utilize subsurface pore space, such as CCS.