Martin Whiteman v. Chesapeake Appalachia, LLC

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
_______________

No. 12-1790
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MARTIN WHITEMAN; LISA WHITEMAN,

Plaintiffs - Appellants,

v.

CHESAPEAKE APPALACHIA, L.L.C.,

Defendant - Appellee.

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Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:11-cv-00031-FPS)
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Argued: March 21, 2013 Decided: September 4, 2013
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Before TRAXLER, Chief Judge, SHEDD, Circuit Judge, and David A.
FABER, Senior United States District Judge for the Southern
District of West Virginia, sitting by designation.
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Affirmed by published opinion. Senior Judge Faber wrote the
opinion, in which Chief Judge Traxler and Judge Shedd joined.
_______________

ARGUED: Joseph Mark Lovett, APPALACHIAN MOUNTAIN ADVOCATES,
Lewisburg, West Virginia, for Appellants. Timothy Minor Miller,
ROBINSON & MCELWEE, PLLC, Charleston, West Virginia, for
Appellee. ON BRIEF: Isak J. Howell, LAW OFFICE OF ISAK HOWELL,
Lewisburg, West Virginia, for Appellants. Joseph K. Merical,
ROBINSON & MCELWEE, PLLC, Charleston, West Virginia, for
Appellee.
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FABER, Senior District Judge:

The plaintiffs below, Martin and Lisa Whiteman (Whitemans),

appeal from a final order of the United States District Court

for the Northern District of West Virginia that granted summary

judgment to the defendant, Chesapeake Appalachia, L.L.C.

(Chesapeake), upon the Whitemans’ claim for common law trespass.

We find no error in the district court’s decision and affirm for

the reasons that follow.

I.

A.

The Whitemans own the surface rights to approximately 101

acres in Wetzel County, West Virginia, pursuant to a general

warranty deed dated March 2, 1992. See JA at 93-94. Chesapeake

owns lease rights to minerals beneath the Whitemans’ surface

property. See JA at 608. The property rights of both the

Whitemans and Chesapeake ultimately flow from two severance

deeds that originally split the surface and mineral estates of

the 101 acres relevant here. The two severance deeds effected

severance by granting the respective surface estates to grantees

while “reserving and excepting” the mineral estate to the

grantor. Specifically, both deeds contain the following

language:

THERE IS RESERVED AND EXCEPTED unto the said Ellis O.
Miller, the grantor, all of his interest in and to the
oil and gas within and underlying the above-described

2
 parcels as well as all of the coal not heretofore
conveyed, and all other minerals within and underlying
the above described property, with the necessary
rights and privileges appertaining thereto.

JA at 95, 99. Notably, the severance deeds neither reserve any

specific surface rights to the mineral estate owner nor mention

permanent waste disposal resulting from mineral extraction.

Today, the Whitemans live on and farm their 101 acres,

primarily raising sheep and, relatedly, using part of the land

to produce hay for the sheep. See JA at 22-23. Conversely,

Chesapeake operates three natural gas wells on approximately ten

acres of the Whitemans’ property that was formerly used for hay

production. JA at 22, 417. The Whitemans can no longer produce

hay on those ten acres because Chesapeake’s well operations and

permanent drill waste disposal on the surface have rendered that

portion of the Whitemans’ property unusable for any suitable

purpose. 1 JA at 258, 264, 420.

Nevertheless, for each of their gas wells located on the

Whitemans’ surface property, Chesapeake obtained valid well work

and pit waste discharge permits from the West Virginia

Department of Environmental Protection (WVDEP). JA at 227, 237,

241, 608. As part of the permitting process, Chesapeake gave

the Whitemans notice of Chesapeake’s intent to drill and dispose

1
Martin Whiteman specifically testified in his deposition
that any loss of use of his land for farming was limited to ten
acres. JA at 264.

3
of drill waste in on-site waste pits. See JA at 230, 244, 246.

Chesapeake attached its WVDEP application for well work and pit

waste discharge permits to the notice it gave the Whitemans. JA

at 232, 247. The permit application included spaces for

Chesapeake to describe anticipated pit waste as well as proposed

disposal methods. Id. On each permit application, Chesapeake

listed anticipated pit waste to include drill water, frac blow

back, and various formation cuttings. 2 Id. Chesapeake also

noted that it intended to dispose of pit waste by “land

application,” or in the case of the pits located on the

Whitemans’ property, by treating water, applying waste to the

land, and burying cuttings. Id.

After the permitting process was complete, Chesapeake began

drilling. While drilling on the Whitemans’ property, Chesapeake

used a water-based drilling fluid, known in the oil and gas

industry as “mud,” 3 to remove drill cuttings during the drilling

2
Drill cuttings consist of earth, rock, and other debris
necessarily removed from the ground when the drill bores the
well.
3
Drilling mud comes in many varieties, ranging from water-
based fluid mixed with minerals to oil-based fluid with a
composition similar to diesel fuel to synthetic oil-based fluid
with a composition similar to food-grade mineral oil. Whatever
variety is used, however, mud engineers nevertheless apply
“additives” to the mud to ensure efficient and effective use of
the mud. JA at 573.

4
process. 4 See JA at 142, 592. Once removed from the wells’

boreholes, Chesapeake disposed of the drill cuttings in accord

with the waste disposal method listed on their well work and pit

waste discharge permit applications, namely by depositing the

drill cuttings into open pits located near the wellheads on the

Whitemans’ surface property. 5 See JA at 608. At the conclusion

of the drilling process, Chesapeake removed the plastic liners

from the waste pits, mixed the drill waste with clean dirt, and

compacted and covered the pits. Sediment control barriers

surround the pits. See JA at 235.

The pit or “open” system of drill waste disposal was the

common method employed in West Virginia at the time the wells

were drilled on the Whitemans’ property, although alternative

disposal methods were used in other areas of the country. See

JA at 119-20, 322, 703. One such alternative is a “closed-loop”

system. The closed-loop system of drill waste disposal is a

relatively recent development in the oil and gas industry.

Under the closed-loop system, drill cuttings and other waste are

4
Mud is expensive and operators preserve and recycle as
much of it as possible; in some cases, operators will rent
drilling mud rather than purchase it. See JA at 115, 116, 572.
Consequently, only a small amount of mud remains mixed with
drill cuttings that have been removed from a well. JA at 572.
5
In return for valuable consideration, the Whitemans gave
Chesapeake a release for any damages caused by Well Number
625599. See JA at 276, 693. That well is not implicated in the
Whitemans’ lawsuit.

5
removed from the well site and placed in off-site landfills.

See JA at 116. Closed-loop systems have some advantages over

on-site disposal. They better preserve expensive drilling mud

for future drilling operations, eliminate the possibility of a

pit failure, and create a smaller drilling operation footprint

at a well site. See JA at 116, 120, 572. Nevertheless, closed-

loop systems are expensive and often cost $100,000 or more per

well than open systems, depending on the well location. See JA

at 120, 130. Chesapeake began using the closed-loop system in

some of its Oklahoma and Texas operations in 2004 and 2005, and,

in December 2009, began preparing to implement the system in

West Virginia. See JA at 112, 119.

The Whitemans have admitted that, at present, their

monetary damages are “trivial” and “not real significant.” JA

at 628. Indeed, the only expert testimony offered in the case

regarding the value of the Whitemans’ land opined that

Chesapeake’s drilling operations caused no diminution in value

thereto. See JA at 267. Rather, the core of the Whitemans’

prayer for relief is vindication of their right to exclude

others from their land and affirmative injunctive relief to

remove the waste pits in order to alleviate the Whitemans’ fears

of possible future liability that might stem from the waste

pits. See JA at 421, 628, 629.

6
 B.

This civil action was filed originally in the Circuit Court

of Wetzel County, West Virginia, and removed to federal district

court on the basis of diversity of citizenship under 28 U.S.C. §

1332(a). The Whitemans are citizens and residents of West

Virginia; Chesapeake is an Oklahoma corporation with its

principal place of business in Oklahoma. JA at 21. The amount

in controversy exceeds $75,000. 6

6
We note that although the Whitemans have essentially
abandoned monetary damages as a remedy in this case, it is
generally held that whether the amount in controversy
requirement has been met is an issue determined “on the basis of
the facts and circumstances as of the time” the case is removed
to federal court from state court. 14AA CHARLES ALAN WRIGHT, ARTHUR
R. MILLER, AND EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3702.4,
p. 457-58 (4th ed. 2011). At that point, no question arose as
to whether the amount in controversy requirement had been met,
perhaps because of the numerous amount of claims the Whitemans
originally alleged against Chesapeake and the damages associated
therewith. Nevertheless, an affirmative injunction carries its
own price tag, and for purposes of determining whether that
amount satisfies the amount in controversy requirement, this
court “ascertain[s] the value of an injunction for amount in
controversy purposes by reference to the larger of two figures:
the injunction's worth to the plaintiff or its cost to the
defendant.” JTH Tax, Inc. v. Frashier, 624 F.3d 635, 639 (4th
Cir. 2010). Here, the Whitemans present no evidence supporting
the requested injunction’s value to them in dollar terms.
However, Chesapeake presented evidence that, for a traditional
12,000 cubic foot pit, measuring forty feet by fifty feet with a
six foot depth and a seventy percent fill ratio, removing such a
pit would cost, at a minimum, $50,000. JA at 605. The two pits
here have much larger dimensions than a “traditional” pit and,
therefore, removing them would easily cost Chesapeake more than
$75,000, based on Chesapeake’s undisputed testimony related to
pit removal costs. See JA at 250. Accordingly, the amount in
controversy requirement for subject matter jurisdiction in this
case is satisfied.

7
 In their complaint, the Whitemans asked for an injunction

and damages based on claims arising from the drilling and

operation by Chesapeake of three natural gas wells on surface

property owned by the Whitemans. JA at 33. The complaint

alleged claims under West Virginia common law only, namely

nuisance, trespass, negligence, strict liability, recklessness

or gross negligence, intentional infliction of emotional

distress, and negligent infliction of emotional distress. JA at

25-32. Cross motions for summary judgment were filed. JA at

90, 211. By order entered on June 7, 2012, the district court

denied the Whitemans’ motion and granted Chesapeake’s motion on

the trespass claim only. JA at 760, 765. Thereafter, with the

court’s approval, the Whitemans voluntarily dismissed all their

other claims. JA at 770-71. A final order was entered on June

11, 2012, from which the Whitemans took a timely appeal to this

court pursuant to 28 U.S.C. § 1291. JA at 773. The only issue

on appeal is whether the district court erred when it granted

summary judgment in favor of Chesapeake upon the Whitemans’

claim for common law trespass.

II.

A.

In reviewing a grant of summary judgment, we apply de novo

the same standard that the district court was required to apply

for granting the motion for summary judgment. Ray Commc'ns,

8
Inc. v. Clear Channel Commc'ns, Inc., 673 F.3d 294, 297 n. 1

(4th Cir. 2012). Specifically, summary judgment is warranted

if, from the totality of the evidence, including pleadings,

depositions, answers to interrogatories, and affidavits, the

court believes no genuine issue of material fact exists for

trial and the moving party is entitled to judgment as a matter

of law. See Rule 56(c) of the Federal Rules of Civil Procedure;

Sylvia Dev. Corp. v. Calvert Cnty., Md., 48 F.3d 810, 817 (4th

Cir. 1995). When an appeal arises from a grant of summary

judgment, the reviewing court must view the evidence, and draw

all reasonable inferences therefrom, in the light most favorable

to the non-moving party. See Laing v. Fed. Exp. Corp., 703 F.3d

713, 714 (4th Cir. 2013). 7

7
This court has held that Rule 56 of the Federal Rules of
Civil Procedure does not allow a court to simply determine that
“the moving party has the winning legal argument.” Podberesky
v. Kirwan, 38 F.3d 147, 156 (4th Cir. 1994) (citing Charbonnages
de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979)). Rather,
a court “must also ensure that there is no genuine issue as to
any material fact before a grant of summary judgment is proper.”
Id. This situation typically arises, as it does here, where the
parties file cross-motions for summary judgment. Nevertheless,
we believe, given the discovery conducted below, the joint
stipulations entered into, and the further development of the
record at the hearing on the motions for summary judgment, that
Chesapeake has satisfied its burden of showing the absence of
any genuine issues of material fact, and the Whitemans have
either failed or declined to rebut that showing. See Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

9
 B.

The substantive legal issue before the court on appeal is

whether Chesapeake’s permanent disposal of drill waste upon the

Whitemans’ surface property is “reasonably necessary” for the

extraction of minerals. 8 Here, the only relevant substantive law

stems from West Virginia common law. Accordingly, we look to

that state’s law for a controlling principle. See Erie R. Co.

v. Tompkins, 304 U.S. 64, 78 (1938).

1.

As noted above, the district court below granted summary

judgment in favor of Chesapeake as to the Whitemans’ common law

trespass claim only. 9 In West Virginia, common law trespass is

8
After oral argument, and pursuant to Rule 28(j) of the
Federal Rules of Appellate Procedure, the Whitemans notified
this court of a decision from the United States District Court
for the Northern District of West Virginia. Specifically, in
the case Cain v. XTO Energy, Inc., Civil Action No. 1:11-cv-111
(N.D.W. Va. March 28, 2013), that court certified a question to
the West Virginia Supreme Court of Appeals essentially asking
whether horizontal drilling far below the surface, a drilling
method now popular in the oil and gas industry, meets the
“reasonable necessity” standard under West Virginia law. That
is not this case; it presents a broader question that only
marginally overlaps with the narrower one presented here and we
see no benefit to certification in this case. Accordingly, to
the extent the Whitemans moved this court to certify the
question in this case to the West Virginia Supreme Court of
Appeals, that motion is denied.
9
In the complaint, the Whitemans styled their common law
trespass claim as “Trespass (Including Willful and Bad Faith
Trespass).” For our purposes, treating that claim as simple
trespass of a continuing nature is sufficient and we proceed

10
“an entry on another man's ground without lawful authority, and

doing some damage, however inconsiderable, to his real

property.” Hark v. Mountain Fork Lumber Co., 127 W. Va. 586,

591-92, 34 S.E.2d 348, 352 (1945) (emphasis added). A

continuing trespass occurs, for example, when one person leaves

on the land of another, with a duty to remove it, “a structure,

chattel, or other thing.” RESTATEMENT (SECOND) OF TORTS § 160

(1965). Regarding remedies for actions in trespass, the general

rule in West Virginia is that “a mere trespass to real estate

will not be enjoined when the injury . . . is susceptible of

complete pecuniary compensation and for which the injured person

has an adequate legal remedy.” Wiles v. Wiles, 134 W. Va. 81,

91, 58 S.E.2d 601, 606 (1950). Nevertheless, in West Virginia,

“[a] court of equity has jurisdiction to enjoin a continuing

trespass.” Tate v. United Fuel Gas Co., 137 W. Va. 272, 278-79,

71 S.E.2d 65, 69-70 (1952). Notwithstanding the above, a claim

for trespass under West Virginia common law can only lie if

one’s entry upon the land of another—or one’s leaving a “thing”

upon the land of another—is “without lawful authority.” Hark,

34 S.E.2d at 352.

A common source of “lawful authority” one might have for

either entering upon another’s land or leaving something on

accordingly; Chesapeake’s alleged willfulness or bad faith is
irrelevant.

11
another’s land is a license. However, at its most basic, a

license is simply “permission, [usually] revocable, to commit

some act that would otherwise be unlawful,” including, but not

limited to, “an agreement . . . that it is lawful for the

licensee to enter the licensor’s land to do some act that would

otherwise be illegal.” Black's Law Dictionary (9th ed. 2009).

In West Virginia, however, a line of precedent informs a mineral

estate owner’s authority to enter upon the land of a surface

estate owner, without express license or otherwise, to extract

minerals, beginning with Marvin v. Brewster Iron Mining Co., 55

N.Y. 538, 1874 WL 11019 (1874), the seminal 1874 case that

introduced the concept of what has come to be known as

“reasonable necessity” and its application to severance deed

construction. 10 In other words, in West Virginia, a mineral

estate owner that enters upon a surface estate owner’s land does

10
We note that in West Virginia, assuming no dispute as to
material facts, “it is the duty of the court to determine
whether the use of the surface by the owner of the minerals has
exceeded the fairly necessary use thereof.” Adkins, 61 S.E.2d
at 636. Moreover, this court has previously held that the West
Virginia rule allocating the duty to determine “reasonable
necessity” to judge, not jury, binds a federal court sitting in
diversity. Justice v. Pennzoil Co., 598 F.2d 1339, 1343 (4th
Cir. 1979). Accordingly, when we review the lower court’s
determination of “reasonable necessity,” we review its
interpretation of West Virginia’s “state property law . . .
measured by concrete legal standards rooted in the common law.”
Id. at 1342; see also Depeterdy v. Cabot Oil & Gas Corp., Civil
Action No. 2:97-966, 1999 WL 33229744, at *2 (S.D.W. Va. Sept.
13, 1999) aff'd, 230 F.3d 1352 (4th Cir. 2000).

12
so without lawful authority only if, under the “reasonable

necessity” standard, the mineral estate owner “exceed[s] its

rights . . . thereby invading the rights” of the surface estate

owner. Adkins v. United Fuel Gas Co., 134 W. Va. 719, 723, 61

S.E.2d 633, 635 (1950).

2.

In Marvin, a surface estate owner sought, among other

things, to enjoin a mineral estate owner from mining underneath

the surface estate owner’s land. Marvin, 1874 WL 11019, at *2.

The surface estate owner complained that the mineral estate

owner had, among other things, deposited “ore and rubbish” (from

the mines) along the front and atop the surface estate owner’s

land. Id. at *3. The lower court in Marvin concluded, as a

matter of law, that although the mineral estate owner had a

right to enter the surface estate owner’s land to mine, the

mineral estate owner had “no right to deposit or keep upon [the

surface estate owner’s] lands any . . . refuse stuff or

rubbish.” Id. at *4. Accordingly, the lower court ordered that

the mineral estate owner be enjoined from further waste disposal

on the surface estate owner’s land and that the mineral estate

owner remove mine waste that the mineral estate owner had

already deposited on the surface. Id. at *5. The New York

Court of Appeals reversed the lower court as to this conclusion

of law, among others, and sent the case back for a new trial

13
because the Court of Appeals believed the lower court failed to

consider whether depositing mine waste on the surface was

“necessary to be done for the reasonably profitable enjoyment”

of the mineral estate owner’s property in the minerals. Id. at

*17. More specifically, the Court of Appeals held that a

mineral estate owner may not claim, as incident to the grant of

the mineral estate itself, “that which is convenient [but] only

that which is necessary, but may have that in a convenient way.”

Id. at *10. In other words, the court indicated that a grant of

minerals underlying a tract of land, absent a deed or lease

provision to the contrary, carries with it a right to use so

much of the surface as is fairly necessary to recover the

mineral and preserve the mineral holder’s “reasonably profitable

enjoyment” of the mineral. 11 Although the Marvin court went on

to state in dicta that it would be a rare case where a mine

owner could justify leaving mine waste on the surface

permanently, the court nevertheless conceded that what is

necessary is a fluid concept that must be determined on a case

by case basis. See id. at *9 (stating that “the facts of each

case” must determine what is necessary).

11
This has come to be called the “fairly necessary” or
“reasonably necessary” standard. We use the two phrases
interchangeably just as the West Virginia Supreme Court of
Appeals has for over 100 years.

14
 If not earlier, the West Virginia Supreme Court of Appeals

cited Marvin with enthusiastic approval in both Porter v. Mack

Mfg. Co., 65 W. Va. 636, 64 S.E. 853 (1909) and Squires v.

Lafferty, 95 W. Va. 307, 121 S.E. 90 (1924), 12 thus officially

adopting the principle that ownership of a mineral estate

carries with it “an implied right to use the surface in such

manner and with such means as would be fairly necessary for the

enjoyment” of the mineral estate. Porter, 64 S.E. at 854; see

Squires, 121 S.E. at 91 (holding that the right to use the

surface “in a manner and with such means as would be fairly

necessary” to enjoy the mineral estate is incident to ownership

of the mineral estate itself). Unlike the instant case,

however, neither Porter nor Squires were trespass cases.

Rather, both were cases where a mineral estate owner sought an

injunction against the surface estate owner for obstructing

various aspects of the mineral estate owner’s mining operation.

In Porter, the mineral estate owner sought to mine clay and

other minerals and carry them off using a tram road he proposed

to build on the surface estate owner’s property, but the surface

estate owner obstructed. See Porter, 64 S.E. at 853. In

12
The court in Porter indicated that the Marvin principles
might be obvious legal underpinnings of West Virginia common law
when it noted that “[i]t seems hardly necessary in this mining
state to state these principles of law; but it may not be
without benefit to do so. They are old and settled principles.”
Porter, 64 S.E. at 854.

15
Squires, the mineral estate owner sought to drill test holes and

transport machinery and men over the surface estate owner’s

property, but the surface estate owner went so far as to lock

the mineral estate owner’s access gate and then assault the

mineral estate owner’s employee that forced passage. Squires,

121 S.E. at 90. In both cases, the West Virginia Supreme Court

of Appeals ruled in favor of the mineral estate owner, finding

the building of a tram road across the surface estate owner’s

property “fairly necessary” to enjoying the mineral estate in

Porter, and finding the drilling of test holes and transport of

machinery and men across the surface “fairly necessary” in

Squires. Notwithstanding their dissimilarity to this case,

Porter and Squires enshrine the overarching principle that,

incident to mineral estate ownership, a mineral estate owner in

West Virginia has a right to use the surface “in such manner and

with such means as would be fairly necessary” to enjoy the

mineral estate. Moreover, both Porter and Squires demonstrate

that the application of such a principle is necessarily fact-

intensive, just as the New York Court of Appeals said in Marvin.

See Marvin, 1874 WL 11019, at *9. The “fairly necessary”

standard from Porter and Squires has remained intact in West

Virginia property law and been applied to a multitude of factual

scenarios, including some more factually analogous to this case

than either Porter or Squires.

16
 3.

In Adkins v. United Fuel Gas, a surface estate owner

brought a trespass claim against the mineral estate owner for

damages caused by the mineral estate owner’s gas drilling

operations on the surface owner’s land. 13 Adkins v. United Fuel

Gas Co., 134 W. Va. 719, 61 S.E.2d 633, 634 (1950).

Specifically, the mineral estate owner drilled a gas well near

the center of a fifty-acre tract, part of which the surface

owner used to grow alfalfa, corn, and vegetables. Id.

Additionally, the mineral estate owner constructed a road and

pipelines through the surface owner’s corn and alfalfa fields to

provide access to the well. Id. Moreover, the mineral estate

owner cut one lengthy ditch to carry water and other refuse from

the gas well and cut another ditch to lay a gas pipe necessary

to operate the gas well. Id. Both ditches were cut through

13
An earlier case, Coffindaffer v. Hope Natural Gas Co., 74
W. Va. 107, 81 S.E. 966 (1914), also involved a surface estate
owner bringing a trespass claim against the mineral estate
owner. However, Coffindaffer is distinguishable from both
Adkins and this case in that the mineral estate owner there had
built a road upon the surface, abandoned any drilling activity
before it ever began, but nevertheless left the road on the
surface. Coffindaffer, 81 S.E. at 966. Although it recognized,
under the “fairly necessary” standard from Porter, that a
mineral estate owner generally has, "as a necessary incident to
the enjoyment" of the minerals, the right to use the surface to
explore for and produce oil and gas, including building a road
to haul drilling machinery, the Coffindaffer court nevertheless
held that where a mineral estate owner builds such a road and
abandons drilling before it begins, such a road cannot be fairly
necessary to enjoying the rights to the mineral estate. Id.

17
land the surface owner had used to grow crops. Id. As a result

of the mineral estate owner’s drilling and associated

activities, the surface was rendered unusable for crop

production. Id.

After it had completed drilling the gas well, the mineral

estate owner removed one gas pipe, drained the ditches and

covered them over, leaving the permanent gas pipe just under the

surface. Id. As to the “reasonable necessity” of the mineral

estate owner’s use of the surface, the court in Adkins held:

There was nothing done which was unnecessary or
unreasonable in the construction of the road to bring
machinery in to drill the defendant’s gas well.
Likewise the laying of the pipe line over the surface
of the land is not disclosed to have been unnecessary.
The construction of the open ditch for draining sand,
water and other refuse from the well during the
drilling thereof seems to have been an effort on the
part of defendant to prevent the spreading of such
sand, water and refuse over the adjacent surface of
plaintiff’s land, and, therefore, was a minimization
of damages.

Id. at 636. In other words, the court in Adkins did not change

the “reasonable necessity” standard. Rather, it simply applied

the standard, as it always had before, to a set of facts unique

to the case in Adkins.

Perhaps the most recent and comprehensive scrutiny of the

“reasonable necessity” doctrine, however, occurred in Buffalo

Mining Co. v. Martin, 165 W. Va. 10, 267 S.E.2d 721 (1980).

There, as in Porter and Squires, a mineral estate owner sought

18
to enjoin the surface owner from interfering with the mineral

estate owner’s mining operations. Specifically, the mineral

estate owner endeavored to construct a power line necessary to

ventilate a coal mine located under the surface owner’s

property. Buffalo Mining, 267 S.E.2d at 722. However, the

court in Buffalo Mining did not simply apply the “fairly

necessary” doctrine from Porter, Squires, Adkins, and others.

Rather, the court applied the following gloss to that doctrine:

[W]here implied as opposed to express rights are
sought, the test of what is reasonable and necessary
becomes more exacting, since the mineral owner is
seeking a right that he claims not by virtue of any
express language in the mineral severance deed, but by
necessary implication as a correlative to those rights
expressed in the deed. In order for such a claim to be
successful, it must be demonstrated not only that the
right is reasonably necessary for the extraction of
the mineral, but also that the right can be exercised
without any substantial burden to the surface owner.

Buffalo Mining, 267 S.E.2d at 725-26 (emphasis added).

Although Buffalo Mining involved a severance deed more

detailed than those presented here, its holding nevertheless

harmonized the “reasonable necessity” standard as it applies to

two divergent types of conflict between mineral estate owners

and surface estate owners. The first involves conflicts where

the mineral estate owner engages in activity that disturbs,

perhaps permanently and negatively, the surface. See Adkins v.

United Fuel Gas Co., 134 W. Va. 719, 723, 61 S.E.2d 633, 635

(1950) (cutting ditches through surface owner’s farmland,

19
permanently burying a gas pipeline used for gas drilling, and

spilling oil and oily water on surface owner’s crops); Squires

v. Lafferty, 95 W. Va. 307, 121 S.E. 90 (1924) (drilling test

holes on surface and transporting machinery and men across the

surface); Porter v. Mack Mfg. Co., 65 W. Va. 636, 64 S.E. 853

(1909) (construction of tram road on surface to transport

minerals). The second involves conflicts where the mineral

estate owner engages in activity that “virtually destroy[s]” the

surface or is otherwise “totally incompatible with the rights of

the surface owner.” Buffalo Mining, 267 S.E.2d at 725; see

Brown v. Crozer Coal & Land Co., 144 W. Va. 296, 107 S.E.2d 777

(1959) (refusing to construe a severance deed to allow “auger

mining,” which had resulted in slippage of the surface

sufficient to uproot trees, toss boulders, and divert streams);

W. Virginia-Pittsburgh Coal Co. v. Strong, 129 W. Va. 832, 837,

42 S.E.2d 46, 50 (1947) (refusing to construe a severance deed

to allow “strip mining” and reasoning that “if the owner of the

surface has a proprietary right to subjacent support . . . he

has at least an equal right to hold intact the thing to be

supported, i.e., the surface.”). Buffalo Mining’s articulation

of “reasonable necessity without substantial burden” generally

allows the first set of surface uses, when “reasonably

necessary,” as implicit to a grant of a mineral estate because

the surface generally incurs no “substantial burden.”

20
Conversely, the second set of surface uses will generally be

disallowed as implicit to a grant of a mineral estate; the

burden of such uses on the surface is generally so substantial

that an explicit deed provision will usually be required. 14

Before Buffalo Mining, the “reasonable necessity” doctrine

simply did not discern between a case where a mineral estate

owner drilled a hole into the surface and a case where a mineral

estate owner all but removed the surface. Indeed, the West

Virginia Supreme Court very recently noted that it has “often

been asked to address disputes between surface owners and

mineral owners,” and in some cases, it is “sometimes unclear if

a particular mineral . . . is a ‘mineral’ or part of the

‘surface.’” Faith United Methodist Church & Cemetery of Terra

Alta v. Morgan, 12-0080, 2013 WL 2920012, at *5 (W. Va. June 13,

2013). Perhaps more to the point, however, the court noted that

in some cases mineral extraction temporarily disturbs the

surface and in other cases mineral extraction destroys the

surface. See id. No matter the degree of disturbance, the

court added, “[a]s new minerals are discovered, and as better

14
See, e.g., Phillips v. Fox, 193 W. Va. 657, 665, 458
S.E.2d 327, 335 (1995) (holding that the right to surface mining
“will only be implied if it is demonstrated that, at the time
the deed was executed, surface mining was a known and accepted
common practice in the locality where the land is located; that
it is reasonably necessary for the extraction of the mineral;
and that it may be exercised without any substantial burden to
the surface owner.”).

21
techniques for harvesting those minerals become available, legal

conflicts between owners of the surface and of the minerals will

abound.” Ultimately, we believe Buffalo Mining sorts the minor

to moderate surface disturbance cases from the major surface

destruction cases when a mineral estate owner seeks to do either

pursuant to implied rights collateral to a grant of the mineral

estate itself.

III.

The court below acknowledged that the severance deeds in

question did not address the issue of use of the property

surface to store drill cuttings and other waste but nevertheless

found such right to be created by implication as a reasonably

necessary incident to creation of a gas well. The Whitemans

advance several arguments as to why the lower court’s conclusion

was erroneous. We address each separately.

A.

As a threshold matter, the Whitemans essentially argue that

Chesapeake had a burden to show its use of the surface was

reasonably necessary and did not impose a substantial burden

upon the surface, that Chesapeake “failed utterly to develop a

record” to support such a showing, and that the court below

erred in granting Chesapeake summary judgment as a result. See

Appellant Br. at 9, 20. The Whitemans apparently rely, in part,

on Buffalo Mining, and no other authority, to support this

22
argument. See id. at 21 (stating “Chesapeake is subject to

Buffalo Mining Company’s ‘exacting’ test in which it must show

both necessity and the absence of a substantial burden on the

surface.”). The Whitemans miss a fundamental distinction

between this case and Buffalo Mining concerning which party

would carry the initial burden of proof at trial. As with any

ordinary tort claim, the plaintiff must make an affirmative

showing of a prima facie case; the defendant need neither affirm

nor rebut anything. See Rhodes v. E.I. du Pont de Nemours &

Co., 636 F.3d 88, 94 (4th Cir. 2011) cert. denied, 132 S. Ct.

499, 181 L. Ed. 2d 347 (2011) (noting that common law trespass

“require[s] that a plaintiff establish that the defendant's

conduct produced some ‘injury’ to the plaintiff or to the

plaintiff's property.”) (citing Hark v. Mountain Fork Lumber

Co., 127 W.Va. 586, 34 S.E.2d 348 (1945)).

In Buffalo Mining, as noted above, the plaintiff was a

mineral estate owner seeking to enjoin the surface owner from

interfering with the mineral estate owner’s mining operations.

Buffalo Mining, 267 S.E.2d at 722. In other words, the mineral

estate owner claimed the surface estate owner was interfering

with the former’s incidental property rights associated with its

grant of the mineral estate. Accordingly, as the plaintiff, the

mineral estate owner in Buffalo Mining had the initial burden of

proving that the surface owner’s conduct “produced some injury”

23
to the mineral estate owner’s incidental property rights. See

Rhodes, 636 F.3d at 94. Here, as Chesapeake aptly recognizes,

it is the other way around; the Whitemans have sued Chesapeake

for trespass and, accordingly, the Whitemans would carry the

burden of making a prima facie trespass claim at trial. See

Appellee Br. at 13. Moreover, no West Virginia case has treated

a mineral estate owner’s claim to “reasonably necessary” use of

the surface to extract minerals as an affirmative defense.

Neither shall we.

Relatedly, the Whitemans argue that the court below failed

to analyze the burden that Chesapeake’s drilling operations

imposed on the surface. Appellant Br. at 38-39. Again, the

burden to prove unauthorized entry or use in trespass is on the

plaintiff. Nevertheless, the record below supports a finding

that the drill waste pits do not impose a substantial burden on

the Whitemans’ surface property. One of Chesapeake’s experts

opined that the drill waste pits have not affected the

Whitemans’ property value at all. JA at 267. The Whitemans

failed to rebut this expert opinion, offering none of their own

to evaluate the risk that the drill waste pits in this case

might slip or break. See Appellee Br. at 8. The only evidence

the Whitemans presented regarding potential future liability

arising from the drill waste pits was the subjective fear of

Lisa Whiteman. See JA at 421. Moreover, counsel for the

24
Whitemans at oral argument below remarked that any pecuniary

loss caused by the drill waste pits was minimal. See JA at 628.

Martin Whiteman himself stated that any injury to the Whitemans’

land that Chesapeake’s entire drilling operation might have

caused was limited to ten acres. JA at 264.

The Whitemans reply that no expert is needed to prove a

common law trespass claim. Appellant Reply Br. at 21. We

agree. However, sufficient evidence, at least a preponderance,

is needed to prove trespass. The Whitemans simply failed to

present sufficient evidence to show that Chesapeake’s drill

waste pits imposed a “substantial burden” on the surface.

Absent that showing, the Whitemans could only satisfy the

“unlawful authority” prong of common law trespass by proving

Chesapeake’s surface use was not “reasonably necessary” to their

gas drilling operation. The Whitemans failed in that regard as

well.

B.

Regarding “reasonable necessity,” the Whitemans first

contend that Chesapeake’s disposal of waste on-site was not

reasonably necessary to operate its wells because an alternative

method of disposal, the closed-loop system, was available. See

Appellant Br. 4, 20, 23, 25. We disagree. There simply is no

support for the Whitemans’ implication that “reasonable

25
necessity” amounts to “necessity,” otherwise the modifier

“reasonable” would be meaningless. 15

The two wells on the Whitemans’ property were drilled

between 2007 and 2009. At that time, the closed-loop system was

a relatively new method of drill waste disposal. Chesapeake had

begun to use the closed-loop system in Texas and Oklahoma

beginning in 2004 and 2005, but did not employ it in West

Virginia until December 2009. When the Whiteman wells were

drilled, the open pit system was the common and ordinary method

of disposal in West Virginia and was consistent with permitting

requirements in the state and approved by the WVDEP.

Nevertheless, the Whitemans apparently believe that comparing

drill waste disposal methods between Texas and Oklahoma gas

drilling operations on the one hand and West Virginia gas

drilling operations on the other hand ought to inform whether

Chesapeake’s drill waste disposal used on the Whitemans’ surface

was “reasonably necessary.” See, e.g., Appellant Br. at 24

(citing Chesapeake’s use of the closed-loop disposal system in

Dallas/Fort Worth as an example of why the open pit system is

purely optional). Such comparison amounts to false equivalency.

15
Chesapeake similarly attempts to precisely define
“reasonable necessity.” See Appellee Br. 17-18. Nevertheless,
no West Virginia law exists to support Chesapeake’s construction
of “reasonable necessity,” even if sound reasoning otherwise
supports it. Accordingly, we decline to adopt Chesapeake’s
definition of “reasonable necessity” as well.

26
Indeed, even comparing drill waste disposal methods within all

of West Virginia would likely not comport with what a

“reasonable necessity” inquiry requires. As noted earlier, we

trace the genealogy of West Virginia’s “reasonable necessity”

standard at least as far back as Marvin v. Brewster Iron Mining

Co., 55 N.Y. 538, 1874 WL 11019 (1874). There, the New York

Court of Appeals clearly stated that determining the scope of a

mineral estate owner’s implicit surface use rights is a

factually intensive process and each case should be evaluated

accordingly in light of the fact that what is “necessary” is a

fluid concept. See Marvin, 1874 WL 11019, at *9. No West

Virginia case law has changed the fact-based nature of the

analysis. Accordingly, the Whitemans wrongly fault Chesapeake

for employing its own case-by-case determination regarding drill

waste disposal methods when this court is compelled to do the

same to adequately determine whether Chesapeake’s surface use

was “reasonably necessary” for mineral extraction. See

Appellant Br. at 24 (noting that when Chesapeake decided whether

to use an open pit or closed-loop system of drill waste

disposal, it “simply performed a ‘case-by-case’ analysis.”)

(citing Chesapeake representative Mark Bottrell’s deposition

testimony at JA 127). 16

16
We note that Bottrell’s deposition testimony regarding
Chesapeake’s decision-making process as to whether to use open

27
 Third, the Whitemans argue that the trial court confused

the requisite “reasonably necessary” standard with a

“reasonableness” standard, thereby applying a less rigorous rule

than the law requires. See Appellant Br. at 9, 18. We need

only refer to the specific language of the trial court’s opinion

to conclude that this argument of the Whitmans is misplaced.

The trial court articulated the correct standard as follows:

Thus, in determining whether the language of the
severance deed and leases creates an implied right to
construct drill cuttings pits, this Court must return
to the question of whether that right is reasonably
necessary for the extraction of the mineral and
whether the pits substantially burden the surface.

JA at 754.

Fourth, the Whitemans contend that the district court

relied on irrelevant state regulations and statutes. See

Appellant Br. at 9, 28-30. While the Whitemans are correct in

their assertion that West Virginia’s regulatory scheme does not

create a right of the lessor to commit a trespass if the

specific use is not granted or implied in a lease, they

or closed drill waste disposal is more sophisticated than the
Whitemans suggest. See Appellant Br. at 24 (claiming
Chesapeake’s decisions to use pits in certain areas in Texas
were based “purely [on] the proximity of a person’s
residence.”). Among other things, Bottrell listed well depth,
drilling method, surface topography, potential impact on
livestock, potential for pit failure or “slippage,” and site
distance to landfill as factors Chesapeake considers before
deciding which waste disposal method to use at any given gas
well site. See JA at 120, 122, 123, 128, 605.

28
misinterpret the lower court’s reliance thereon. The court

below simply referred to the statutes and regulations in order

to “inform this Court of the practices of the oil and gas

industry in West Virginia.” JA at 754. Moreover, the court

below expressly acknowledged that a permit granted by a state

agency pursuant to a regulatory scheme cannot immunize the

permit holder from civil tort liability for actions arising out

of use of the permit. Id. Accordingly, the lower court’s

reliance on various West Virginia statutes and regulations, and

the manner in which it so relied, was not an improper way to

adduce some evidence of reasonable necessity. 17

Finally, the Whitemans claim the court below quoted and

emphasized a 2008 mineral lease between the Whitemans and

17
While decided under a slightly different legal standard
than the one we apply here, the United States District court for
the District of North Dakota recently addressed the same issue
in a case whose facts are remarkably similar to those of the
case at bar. In that case, Kartch v. EOG Resources, Inc., 2012
WL 661978 (D. N.D. 2012), the surface estate owner contended
that drill pit waste left on the surface by the mineral estate
owner amounted to trespass. The surface estate owner argued
that availability of a closed loop system for deposit of waste
off the surface property rendered unnecessary the use of
permanent on-site waste storage. The court disagreed and held
that, at the time the well was drilled, reserve pits were
commonly used in North Dakota. The availability of an
alternative, said the court, did not make storage of waste on
the land unreasonable. The court also noted that the North
Dakota Industrial Commission had issued a permit for the surface
waste disposal under appropriate regulations. Compliance with a
state regulatory scheme, as in the case here, was deemed to be
evidence of reasonableness.

29
Chesapeake that is not relevant to this case. That lease

covered a separate one-acre tract from the ten acres involved

here and gave Chesapeake “such exclusive rights as may be

necessary or convenient” in its gas production activities.

While the court below did refer to that lease in its opinion,

the court also made clear that the one-acre lease, including its

expansive language, is not relevant to the present case. The

standard applied by the trial court, as noted above, was one of

reasonable necessity; convenience did not enter into the court’s

calculation.

IV.

For all these reasons we conclude the district court was

correct to hold that creating drill waste pits was reasonably

necessary for recovery of natural gas and did not impose a

substantial burden on the Whitemans’ surface property, that

creation of the pits was consistent with Chesapeake’s rights

under its lease, was a practice common to natural gas wells in

West Virginia, and consistent with requirements of applicable

rules and regulations for the protection of the environment.

Accordingly the decision of the district court is

AFFIRMED.

30