Hydraulic Fracturing and Ownership Theories Pdf

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Hydraulic Fracturing and Ownership Theories in Rule of
Capture in Shale Trespass Litigation: United States versus
Emerging Shale Jurisdictions
MAVIS EKENEDILICHUKWU EKWECHI-WHYTOCK
LL.M Oil and Gas Law and Policy
MARCH 2016

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HYDRAULIC FRACTURING AND OWNERSHIP THEORIES
AND THE RULE OF CAPTURE IN SHALE TRESPASS
LITIGATION: UNITED STATES VERSUS EMERGING SHALE
JURISDICTIONS
DISSERTATION BY:
NAME: MAVIS EKENEDILICHUKWU EKWECHI-WHYTOCK
LL.M IN OIL AND GAS LAW AND POLICY
CEPMLP, UNIVERSITY OF DUNDEE
This dissertation is submitted to the Centre for Energy, Petroleum and Mineral
Law and Policy (CEPMLP), University of Dundee, in partial fulfilment of the
requirement for the award of Master of Laws (LL.M) degree in Oil and Gas
Law and Policy
SUPERVISOR: PROFESSOR PETER D. CAMERON
MARCH 2016

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DECLARATION
I declare that I, MAVIS EKENEDILICHUKWU EKWECHI-WHYTOCK, am the author of
this dissertation. I also declare that all references cited herein have been personally consulted;
that I have carried out this dissertation and no part has been previously accepted for any other
higher degree.
NAME: MAVIS EKENEDILICHUKWU EKWECHI-WHYTOCK
DATE: 31ST MARCH 2016
SIGNATURE: Mavis Ekwechi-Whytock

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DEDICATION
This work is dedicated to my late father, Engr. Enoch Chukwudolue Ekwechi, whom I had
wanted to behold me as I am today.

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ACKNOWLEDGEMENT
My gratitude goes to the Lord Almighty and my beloved husband James Graham Whytock,
for whom without, this work would not have been a success. This dissertation has been
written at a trial time but crowned with victory. I cannot thank God enough for His
faithfulness and grace upon my life. From the conception of the topic, it was perceived as a
very tricky one but God proved Himself “Omniscience”.
In the course of writing this dissertation, I attended and participated in many oil and gas
related conferences, symposiums, workshops, and had conversations with relevant
individuals whom the concept of confidentiality would not allow me to disclose. My heartfelt
appreciations go to you all.
I humbly and further extend my gratitude to all the lecturers at the CEPMLP University of
Dundee for their relentless effort in impacting knowledge to students.

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ABSTRACT
The study examined the role ownership theories and the rule of capture play in shaping
subsurface trespass liability in shale gas development in the United States (US), and whether
other emerging shale gas jurisdictions such as South Africa (SA) would play out differently.
Utilising a desktop-based, comparative and doctrinal methodologies, the study finds that
hydraulic fracturing and horizontal or directional drilling are scientific innovation with huge
economic, energy security and some environmental benefits. However, the extent of its
negative environmental and health impacts are still debatable. It is shown that ownership of
petroleum and mineral in the US is both government and private-owned while it is State-
owned in SA except for some communities with trust-like arrangements and with royalty
interest. The courts have found subsurface trespass relying on the rule of capture and
ownership theories such as ad coelom, ownership in place and non-ownership in place except
there are very compelling reasons to find otherwise. One of such is where there utility of the
technology which is alleged to constitute a trespass, or the courts consider it beneficial to
society at large as in Garza’s case, or where the court finds no damage. However, the courts
have found liability for subsurface trespass even in non-ownership in place jurisdictions such
as California. In the case of SA, it would appear that in the absence of private ownership
rights in SA, any action for subsurface liability may likely fail. However, hypothetically, a
licensee in an old concession agreement would be able to bring an action for subsurface
trespass because it owns the in situ petroleum and mineral. This is not the case with a PSA
because it re-emphasises State ownership of mineral and petroleum rights, and shale gas
development in SA will be based on a PSA. It is possible that communities that retained the
trust-like arrangements with royalty interest may be able to institute an action for subsurface
trespass especially when it is understood that they may obtain preferential mineral rights
under the MPRDA. The lack of ownership rights may prove meaningless in some cases for
subsurface liability if a litigant can show compelling circumstances as we saw in the US
cases bearing in mind that a landowner’s rights may still be preserved where the land is not
acquired by the government. Thus the issue of subsurface liability for shale gas development
in emerging shale gas jurisdictions must be approached with caution as it is possible to
address it through other tortious actions such as negligence, nuisance and conversion. The

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statute of limitation may also apply and public policy considerations may outweigh the
substance of an action. Finally, emerging shale gas jurisdictions would have to determine the
extent of liability where permits from Conservation Commissions are involved.
TABLE OF CONTENTS
i. Declaration……………………………………………………………………………………………3
ii. Dedication……………………………………………………………………………………………4
iii. Acknowledgement…………………………………………………………………………………..5
iv. Abstract……………………………………………………………………………………………...6
v. Table of Contents…………………………………………………………………………………….7
vi. Abbreviations………………………………………………………………………………………..9
vii. List of Diagrams………………………………………………………………..............................10
CHAPTER ONE: BACKGROUND TO THE STUDY……………………………………………12
1.1 Introduction……………………………………………………………………………………….12
1.2 Problem Statement of the Study ………………………………………………………………….13
1.3 The Question of the Study ………………………………………………………………………..14
1.4 The Importance of the Study ……………………………………………………………………..15
1.5 The Methodology of the Study …………………………………………………………………..16
1.5.1 Desktop-based Methodology……………………………………………………………………16
1.5.2 Comparative Methodology……………………………………………………………………...17
1.5.3 Doctrinal Methodology…………………………………………………………………………17
1.6 The Structure of the Study ……………………………………………………………………….17
CHAPTER TWO: HYDRAULIC FRACTURING AND SHALE GAS DEVELOPMENT……19
2.1 Introduction……………………………………………………………………………………….19
2.2 Oil and Gas Geology………………………………………………………………………………19
2.3 Oil and Gas Drilling ………………………………………………………………………………19
2.3.1 Vertical Drilling…………………………………………………………………………………19
2.3.2 Directional and Horizontal Drilling …………………………………………………………….20
2.4 Hydraulic Fracturing………………………………………………………………………………22
2.4.1 History…………………………………………………………………………………………..22
2.4.2 Meaning and Process…………………………………………………………………………....22
2.4.3 Implications……………………………………………………………………………………...24
2.4.3.1 Positive Implications…………………………………………………………………………..24
2.4.3.2 Negative Implications………………………………………………………………………....26
2.5 Shale Gas in United States and South Africa……………………………………………………..27
2.6 Conclusion………………………………………………………………………………………...29

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CHAPTER THREE: PETROLEUM AND MINERAL RIGHTS AND OWNERSHIP AND THE
RULE OF CAPTURE…………………………………………………………………………………30
3.1 Introduction………………………………………………………………………………………..30
3.2 Ownership in Law………………………………………………………………………………...30
3.3 Petroleum and Mineral Rights in the United States and South Africa……………………………31
3.3.1 United States…………………………………………………………………………………….31
3.3.2 South Africa……………………………………………………………………………………..32
3.4 Theories of Private Petroleum and Mineral Interest in the United States…………………………33
3.4.1 The Ad Coelum Theory…………………………………………………………………………33
3.4.2 Non-Ownership Theory…………………………………………………………………………33
3.4.3 Ownership in Place Theory……………………………………………………………………..34
3.4.4 Corporeal and Incorporeal Distinction………………………………………………………….34
3.5 The Rule of Capture……………………………………………………………………………….35
3.6 Conclusion………………………………………………………………………………………...38
CHAPTER FOUR: LIABILITY FOR SUBSURFACE TRESPASS: UNITED STATES VERSUS
SOUTH AFRICA……………………………………………………………………………………...40
4.1 Introduction………………………………………………………………………………………..40
4.2 Trespass to Land…………………………………………………………………………………..40
4.3 Liability for Subsurface Trespass in Shale Gas Development……………………………………41
4.3.1 Subsurface Liability in the United States……………………………………………………….42
4.3.1.1 Ownership Jurisdictions……………………………………………………………………….42
4.3.1.2 Non-Ownership Jurisdictions………………………………………………………………….46
4.4 Subsurface Liability in South Africa ……………………………………………………………..49
4.4.1 Contractual Arrangements………………………………………………………………………50
4.4.1.1 The Concession Agreement…………………………………………………………………...50
4.4.1.2 The Production Sharing Agreement…………………………………………………………...51
4.5 Conclusion………………………………………………………………………………………...52
CHAPTER FIVE: CONCLUSION AND RECOMMENDATIONS…………………………………53
5.1 Conclusion………………………………………………………………………………………...53
5.2 Recommendations………………………………………………………………………………...54
BIBLIOGRAPHY

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LIST OF ABBREVIATIONS
BCF/D - Billion Cubic Feet per Day
CA – Concession Agreement
EIA - Energy Information Administration
EPA - Environmental Protection Agency
ER - Exploration Rights
GDP - Gross Domestic Product
MPRDA - Mineral and Petroleum Resources Development Act
NOC - National Oil Company
PASA - Petroleum Agency of South Africa
PSA – Production Sharing Agreement
PR - Production Rights
RP - Reconnaissance Permit
SA – South Africa
TCF - Trillion Cubic Feet
TCP - Technical Cooperation Permits
US – United States

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LIST OF DIAGRAMS
Diagram 1: Traditional Wells vs. Unconventional Well
Diagram 2: Total Primary Energy Supply in South Africa, 2010
Diagram 3: Economic Benefits of Shale Gas in South Africa
Diagram 4: United States Shale Basins
Diagram 5: Map of Operators’ TCP coverage in the Karoo Basin

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CHAPTER ONE
BACKGROUND TO THE STUDY
1.1 Introduction
With the world’s oil and natural gas becoming increasingly difficult to harness, several
ingenious and technologically advanced steps are continuously being devised or harnessed to
meet with the difficulties of extracting and winning petroleum in situ1
. One of such
ingenuous steps is the use of hydraulic fracturing or fracing.
Hydraulic Fracturing is nothing new. Hydraulic fracture was first performed in 1947 in
Hugoton natural gas field in Western Kansa2
. It has been used since then for a variety of
purposes including as a means to overcome near well bore damage, creating deep penetrating
fractures to enhance well productivity.3
It has also been used for secondary recovery
operations and also to help in the disposal of salt water or other waste products4
. Its most
prominent use today, is for the extraction of oil and natural gas from shale plays. Oil and gas
that would otherwise be un-extractable are now been liberated from tight rocks and sand
formations by the sheer pressure from the injection of chemical mixture, liquids and
proppants into a hydraulic fracture well.
Advancement in technology tends to reduce cost of production. The development of the
technology, with attendant decrease in cost of production, together with the difficulty in
finding petroleum by easier-to-extract means has meant that hydraulic fracturing which was
hitherto uncompetitive as a result of the cost of production has suddenly stormed the market
with a new competitive posture.5
It has suddenly emerged as the new means for getting more
gas out of the ground with the attendant result of more affordable energy in the United States.
Interestingly, the United States is not the only country with shale gas resources to benefit
from the process of hydraulic fracturing. Previous studies put the shale gas resource-rich

1
In many parts of the world, especially areas with long history of petroleum operations, easy-to-extract
petroleum resources have been rather exhausted which simply means that if the current civilisation is to
continue to run on oil, then the current advancements in drilling technology are a necessity.
2
Terry D. Ragsdale, Hydraulic Fracturing: The Stealthy Subsurface Trespass, 28 TULSA L.J.
331, 338, n.127 (1993)
3
Ibid.
4
Ibid.
5
In general, conventional production methods are still cheaper than unconventional production methods,
although one cannot overlook the fact that the gap is closing as a result of technological advancement.

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countries at 41 spanning many continents such as Europe, Asia, Australia, South America,
Africa and the Middle East.6
However, current studies put the total number of countries with
shale gas resources at 46 with a total of 7,576.6 TCF (Trillion Cubic Feet) of shale gas.7
The
abundance of shale resources has not translated into its development in all countries but only
four countries have been able to commercially develop these resources, namely: Argentina,
Canada, China, and the US.8
Sinopec and PetroChina have successfully partnered in China to
report commercial production of shale gas from the Sichuan Basin with output of 0.163
billion cubic feet per day (Bcf/d). In Argentina, the National Oil Company (NOC), YPF has
partnered with Chevron to produce from the Vaca Muerta’s Neuquen Basin. In Canada, shale
gas production is from the Montney formation that increased from 1.9 Bcf/d in 2011 to 3.9
Bcf/d as of May 2014.9
Other countries that have started to explore the potential for
developing oil and gas resources from shale formations include Mexico, Colombia, Russia,
Australia, Poland, and Algeria. However, none of these countries have been able to replicate
the shale gas boom in that is experienced in the US leading to relatively cheap natural gas
that has helped in curbing carbon emissions. Shale gas production in the US occurs mainly in
the Appalachian Basin's Marcellus Shale tripling from an average of 4.8 Bcf/d in 2011 to an
average of 14.6 Bcf/d in 2014.10
1.2 The Problem Statement of the Study
Hydraulic fracturing has not been a process without negatives. From mere infringement of
legal rights to the speculations on the capability of the process to cause earthquake,
discussions about its negative implications have taken the centre stage with the voices of
environmental activists been the loudest in that respect. The central concern in many
litigations to date have stressed the potential health risks of hydraulic fracturing, and the
allegations have been that frac fluid and chemicals pollute underground water supplies.11
As
concerns sub-surface interference, there are several potential areas of conflicts with

6
United States Energy Information Administration (US EIA), “Technically Recoverable Shale Oil and Shale
Gas Resources: An Assessment of 137 Shale Formations in 41 Countries Outside the United States”,
Washington DC, June 2013.
7
US EIA, “Analysis and Projections: World Shale Resource Assessments”, 24 September 2015. Available at:
https://www.eia.gov/analysis/studies/worldshalegas/ (accessed 23 March 2016).
8
US EIA, “Shale gas and tight oil are commercially produced in just four countries”, 13 February 2015.
Available at:
http://www.eia.gov/todayinenergy/detail.cfm?id=19991 (accessed 23 March 2016).
9
Ibid.
10
Ibid.
11
The American Oil and Gas Reporter, February 2012.

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established legal rules and they include: conversion, private nuisance, negligence, subsurface
trespass12
and one may add liability under the rule in Rylands V. Fletcher13
as developed by
the Courts in England.14
However, apart from the environmental issues that are still most
talked about, issues about how the process confronts established legal rights of adjourning
land owners have come before several courts, especially in the United States of America.
This study is strictly concerned with the issue of how subsurface permeation of frac mixture
confronts the old rule of trespass to land in the United States of America as a background for
other jurisdictions which may be confronted with similar situations. However, the discussions
on the subsurface trespass liability are intertwined with the age long principles of ownership
and capture. It must be stressed at the outset that the ownership of petroleum in situ in the
United States is somewhat different from that in many other jurisdictions and as concept of
individual right to petroleum resources in the United States has shaped discussions on
hydraulic fracturing and trespass, so too will mineral interest ownership peculiarities in other
emerging shale gas jurisdictions likely shape the outcome of any hydraulic fracturing trespass
issues that may arise. The ownership of petroleum in situ in the US is unlike in many other
countries where it is owned by the State. Thus the common law rule of capture that allows the
taking of another’s petroleum from adjoining fields through drilling as legal may play out
differently in other emerging shale gas jurisdictions. Therefore, any discussions on the
subject premised on the United States’ jurisprudence may serve as nothing more than
precedent for the US courts alone.
1.3 The Question of the Study
To these ends, this study seeks to answer the following main research question:
• What role has ownership theories and the rule of capture played in shaping subsurface
trespass liability in shale gas development in the United States, and would other
emerging shale jurisdictions play out differently?
In seeking to answer the main research question, the study would first provide answers to the
following questions:
• What is the rule of capture and how does it apply to oil and gas resources?

12
Terry D. Ragsdale, Supra, note 2
13
(1865) 3 H. & C. 774 (Court of Exchequer); (1866) L.R. 1 Ex. 265 (Court of Exchequer Chamber)
14
“We think that the true rule of law is, is that the person who for his own purposes brings on his land and
collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does
not do so, is prima facie answerable for all the damage which is the natural consequence of its escape” per
Blckburn, J in Rylands V. Fletcher (supra)

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• What is ownership and what are the various ownership theories for in situ oil and gas
resources?
• What is trespass and subsurface trespass?
• What is hydraulic fracturing and how does it relate to subsurface trespass?
1.4 The Importance of the Study
Whilst discussions on the environmental impact of this process are worth every seriousness
they receive, there is no doubt that the overarching focus on the environmental effects of the
process is capable of downplaying the other vital issue of how the process confronts
seemingly established legal rules in relation to the rights of adjourning land owners in the US.
Moreover, the world has witnessed a significant change in energy development and price. Oil
price recently fell to a 12-year low15
. One of the main reasons for this is the development of
shale plays in the United States of America leading to over production. Hydraulic fracturing
is the main technology used in the process. As the use of the technology increases, it will not
be out of place to say that the courts are very likely to witness an increase in litigations
resulting from the process, which makes any discussion on hydraulic fracturing very
germane. This work is aimed at presenting a contribution to the emerging issues surrounding
the rights of adjourning land owners in areas subject to hydraulic fracturing. This legal issues
are x-rayed from the role ownership theories and the rule of capture would play in the US
jurisdiction and those of other emerging shale gas countries. It is interesting to see how even
the various contractual arrangements would play out with issues of subsurface liability for
hydraulic fracturing in shale gas development especially in other emerging shale gas
jurisdictions. It should be noted that as of today, the exploration and exploitation of shale gas
by hydraulic fracturing has been limited to a few countries most notably, the US, China,
Argentina and Canada. Deposits of Shale gas abounds in other climes. The speculation is that
if the process has proven to be an economic success in the United States, many other
countries are likely to cash in as to increase energy security and gain more foreign exchange.
The international Energy Agency has estimated that: unconventional gas will account for
nearly half of the increase in global gas production to 2035, with most of the increase coming
from the United States and Australia.16
For instance, there have been calls for the exploitation

15
See Aljazeera, “Tumbling Oil Prices Fall to 12-Year Low”, 12 January 2016. Available at:
http://www.aljazeera.com/news/2016/01/oil-prices-160112084615394.html (accessed 23 March 2016).
16
World Energy Outlook 2012 Factsheet, How Will Global Energy Markets Evolve to 2035?
http://www.worldenergyoutlook.org/media/weowebsite/2012/factsheets.pdf (accessed 23 March 2016).

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of shale resources in Nigeria.17
Within the African context, not much has been done for the
development of Shale resources. Nigeria has been fingered to have abundant deposits of shale
resources mostly in Benue, Bornu, Adamawa, Niger Delta and in parts of the South east and
South West.18
In Europe Shell has signed the biggest ever shale gas deal with Ukraine
amounting to about 10 Billion Dollars. The increasing international spread of Shale gas
exploitation makes the subject of Hydraulic fracturing central in the international Oil and gas
industry.
This study is important as it addresses the issues of subsurface liability with hydraulic
fracturing in shale gas development not only in the US as has been done by previous studies19
but also because it looks at these issues from the context of other emerging shale gas
jurisdictions. It is mainly concerned with the role differing ownership theories in these
jurisdictions and the rule of capture would play in the eventual outcome of the analysis
especially the role the different contract arrangements would play in shaping issues of
liability.
1.5 The Methodology of the Study
The methodology for this study is based on three approaches – a desktop-based methodology,
comparative methodology, and a doctrinal methodology.
1.5.1 Desktop-based Methodology: This methodology utilises the background search for
literature both online and offline using different tools such as Google Scholar, HeinOnline,
LexisNexis, Refworks and University of Dundee’s Library online search tools. The literature
for the discussions were also obtained offline using the University of Dundee main library to
get hard copy materials such as books, peer-review journals, conference reports, and
newsletters. The various primary and secondary data, and soft and hard copy materials on the
subject matter of hydraulic fracturing, shale gas, ownership theories, and trespass are
analysed to present a proper conceptual understanding of the subject. It is presented here as

17
See Damilola S. Olawuyi, “Hydraulic Fracturing Technology and Shale Gas Production in Nigeria: Legal and
Sustainability Assessment”, Petroleum Technology Development Journal: An International Journal, Vol.2, July
2014.
18
Ibid.
19
Terry D. Ragsdale, Hydraulic Fracturing: The Stealthy Subsurface Trespass, 28 TULSA L.J.
331, 338, n.127 (1993)

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an overview of the issues raised in the materials aimed at pushing forward the arguments and
conclusions of this study.
1.5.2 Comparative Methodology: The comparative methodology in this study utilises the
US and other emerging shale gas jurisdictions to show similarities and differences in the
issues raised in the study. The country selected for this study from the group of emerging
shale gas resource-rich countries is South Africa (SA). The main reason for its selection is
that apart from being shale gas resource-rich, it has a different ownership theory for oil and
gas resources. It should be stressed that there is currently no commercial development of
shale gas in SA although there are exploration activities in SA. It presents the understanding
of issues such as ownership of in situ oil and gas resources as known in the US and other
emerging shale gas jurisdictions. The various views or schools of thoughts on ownership are
presented from the perspective of these two set of countries – the US on the one hand, and
SA on the other hand. The comparative methodology further examines the implications of
ownership theories on liability issues of subsurface trespass in these two set of countries. The
liability for subsurface trespass is also looked at from the various contractual arrangements
comparing a traditional concession and a Production Sharing Agreement (PSA) to determine
whether or not liability would be imposed by the courts.
1.5.3 Doctrinal Methodology: The doctrinal research is aimed at providing an exposition of
the rules governing subsurface trespass with hydraulic fracturing in shale gas development
utilising different jurisdictions such as the US on the one hand, and SA on the other hand.
The doctrinal research here would analyse the relationship that exists between the rule of
capture and the ownership theories that exist in the selected countries of study – US and SA.
1.6 The Structure of the Study
The study is structured into five chapters. Chapter one provides the background to the study
that provides the context and states the problem that offers the need for undertaking the study.
It further states the main question that the study seeks to provide answers to using different
methodologies such as a desktop-based approach, a comparative methodology, and a
doctrinal approach. Chapter one also provides the importance or significance of the study.
Chapter two provides further context and background by discussing the technology, hydraulic

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fracturing and shale gas development looking at its history, the technology around this
innovation, its implications whether positive or negative, and some key policy and legal
issues that arise with the use of hydraulic fracturing in shale gas development. Chapter three
examines the common law rule of capture and ownership theories for in situ oil and gas
aimed at determining subsurface liability. The ownership theories are explored from the
different jurisdictions of study to show differences in ownership rights. The chapter discusses
the ownership in place and non-ownership in place theories of ownership. Chapter four
examines the issues of subsurface trespass liability using the different jurisdictions of the
study to highlight what is obtainable in these countries. The cases are examined based on the
federating states of Texas on the one hand, and California, Louisiana and Oklahoma on the
other hand respectively. The chapter explores the issue of subsurface liability from decided
cases of the US courts where the issues have arisen. It then looks at the likelihood or
otherwise of a subsurface liability in the emerging shale gas countries based on the ownership
theories and the rule of capture. The various contractual arrangements earlier noted are also
examined to determined possible liability for subsurface liability with hydraulic fracturing in
shale gas development. Chapter five concludes the study with the major findings of the
research and recommendations.

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CHAPTER TWO
HYDRAULIC FRACTURING AND SHALE GAS DEVELOPMENT
2.1 Introduction
Hydraulic fracturing has developed with technology and helped with shale gas development.
This chapter provides the context for the study by discussing the historical development of
hydraulic fracturing, the science and technology about it and the impact it has created with
shale gas development. The chapter also looks at shale gas resources in the US and SA with
respect to their reserves and development.
2.2 Oil and Gas Geology
It is common knowledge that oil and gas deposits formed millions of years ago when organic
matter settled on the ocean bottom. By a combination of natural factors such as the impact of
bacteria pressure, heat and time, these matter were transformed into hydrocarbon entrapped in
those rocks. They are thus contained in reservoirs consisting of sedimentary rocks such as
sandstone or shale.20
Some rocks are more porous and permeable than others. The more permeable and porous
they are, the easier the extraction of the hydrocarbon they hold. The hydrocarbon in these
rock reservoirs are under enormous pressure hence their migratory propensity.
2.3 Oil and Gas Drilling
2.3.1 Vertical Drilling
Vertical or straight drilling is the traditional well drilling pattern that just goes straight down
into the earth. The vast majority of oil and gas wells are considered vertical. It is estimated
that straight vertical holes account for about 70,000 of the oil and gas wells that are drilled
annually.21
However, it must be noted that vertical wells are not necessarily vertical because
of the nature of wells to deviate from verticality.22
There are certain conditions that would

20
See Travis Zeik, “Hydraulic Fracturing Goes To Court: How Texas Jurisprudence On Subsurface Trespass
Will Influence West Virginia Oil And Gas Law”, 112 West Virginia Law Review, 599.
21
Guido Brusco, et al, “Drilling Straight Down”, Oilfield Review, 2004, p.14
22

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dictate that an oil and gas company opts for a vertical well. Firstly, it facilitates running larger
casing with minimal clearance. It also affords the possibility of using an extra string of casing
at some later stage in well-construction operation.23
There are, however, some limitations
with vertical drilling that horizontal and directional drilling were able to address. The main
problem was that vertical wells are only able to access natural gas that immediately surrounds
the end of the well unlike horizontal that could access natural gas that surrounds the entire
portion of the horizontally drilled section.24
2.3.2 Directional and Horizontal Drilling
Directional or slant or horizontal drilling is the opposite of vertical drilling that see oil and
gas wells drilled at an angle other than vertical. They are used to obtain information by
hitting targets that are beneath adjacent lands, and stimulating reservoirs in ways that a
vertical well cannot achieve. Directional wells are also used to reduce the footprint of a gas
field, and to construct relief wells. In some cases, where excavation is impossible or
expensive, a directional or horizontal drilling can be used to install utility services beneath
lands. However, it is usually more difficult and complicated to drill a directional or horizontal
well than a vertical well because the depth of resource-rich layer has to be determined first.25
It is also slower and time consuming to drill a horizontal and directional well because the
driller needs to stop regularly to take surveys. Directional or horizontal drilling can
sometimes cause stealing concerns as was the case between Iraq and Kuwait in 1990 where
the former accused the latter of stealing its oil using slant drilling.26
Similar slant drilling
scandal was a major occurrence in the many fields including the East Texas Oil Field in the
mid-20th century.27

23
24
Curtis, R. “What is horizontal drilling, and how does it differ from vertical drilling?”, Institute for Energy and
Environmental Research of North-eastern Pennsylvania Clearinghouse website, 14 January 2014. Available at:
http://energy.wilkes.edu/pages/158.asp (accessed 23 March 2016).
25
Curtis, R. “What is horizontal drilling, and how does it differ from vertical drilling?”, Institute for Energy and
Environmental Research of North-eastern Pennsylvania Clearinghouse website, 14 January 2014. Available at:
http://energy.wilkes.edu/pages/158.asp (accessed 23 March 2016).
26
Ministry of Foreign Affairs of Japan, “Diplomatic Bluebook: Japan’s Diplomatic Activities”, 1991. Available
at: http://www.mofa.go.jp/policy/other/bluebook/1991/1991-contents.htm#CONTENTS (accessed 23 March
2016).
27
Julia Cauble Smith, "East Texas Oilfield," Handbook of Texas Online. Available at:
http://www.tshaonline.org/handbook/online/articles/doe01 (accessed 23 March 2016).

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As will be seen later and related to the issue of stealing, the rule of capture encouraged
competitive drilling. Each adjourning land owners, in order not to be “cheated” out of the
common reservoir drilled as many wells as possible on his own land and very close to the
boundaries in dense geographical patterns.28
Again as will be shown later, the rule of capture
had not yet been qualified by conservation statutes.29
Also, knowledge of petroleum geology
and drilling technology was very limited, so the tendency was for adjourning land owners to
get as much oil as possible by drilling many wells.
In this atmosphere of competitiveness waste was the order of the day and the absence of
surveying instruments capable of ascertaining subsurface position of a well meant that a well
that is slanted (advertently or inadvertently) into adjourning lands were not detected for
possible trespass claims. Drillers at the time had no idea that even a well, intended to be
straight, could, drift in course of drilling.30
The industry, thus operated, for a time, in ignorant
bliss of the potential torts of which many operators were both tort feasor and victim.31
With
the development of Whipstock in the 1930s,32
mischievous drillers were able to divert the
well bore into a neighbour’s property. This development was however countered by the
invention of surveying equipment capable of determining the sub surface location of a well
and many a land owner were thus able to apply to court for permission to survey his
neighbour’s well if there were grounds to suspect that his well deviated across property lines.
Horizontal and directional drilling’s major contribution is in the area of natural gas shale
plays. It has contributed to the development of shale gas with the advent of hydraulic
fracturing. This will be discussed shortly.

28
Terry D. Ragsdale, “Hydraulic Fracturing: The Stealthy Subsurface Trespass”, 28 TULSA L.J.
331, 338 (1993).
29
Ibid.
30
Ibid.
31
Ibid.
32
A crude drilling equipment which permitted drillers to deviate a well across property lines.

22

2.4 Hydraulic Fracturing
2.4.1 History
Shale gas development was a difficulty technically and commercially at a time even though
geologists have known about these types of formations.33
In 1821 at the Appalachian
Mountains in present day New York, shale gas was developed but this was done for very
little profits by a cottage business.34
In the Jurassic strata in the United Kingdom at the same
time was explored for shale gas but without any success.35
However, it was identified that
this area and those of the Carboniferous strata in the Midlands are rich in shale gas although
25 years after this discovery by researchers from Imperial College, nothing happened.36
The
discovery for shale gas in the UK finally occurred in 2010 at Cuadrilla.
2.4.2 Meaning and Process
Shale formations are usually different meaning that the issues faces by a particular formation
may not be the same as those faced by another.37
It’s the requirement for additional procedure
for extracting shale gas from its formations that makes it unconventional otherwise it is like
any other gas. Technological advances have made this additional processes possible called
horizontal drilling and fracking or hydraulic fracturing.38
Fracking allows for the
development of more gas in tight or difficult formations.39
It is defined as a process whereby
fissures are created in underground rock formations through the pumping of pressurised
material into the rock formation.40
These proppants could be sand and water mixed with other
chemicals.41
The process requires drilling a well vertically using directional drilling to depths

33
Kenneth Barry Medlock III, Modeling the Implications of Expanded US Shale Gas Production, Energy
Strategy Reviews 1, 2012, pp.33 – 41 at p.36
34
Richard C. Selley, UK shale gas: The story so far, Marine and Petroleum Geology 31 (2012) 100 - 109 at
p.100
35
Ibid.
36
Ibid.
37
Susan L. Sakmar, The Global Shale Gas Initiative: Will the United States be the Role Model for the
Development of Shale Gas around the World? Houston Journal Of International Law, Vol. 33, No.2, 2011
pp.369 – 417 at pp.375-376 at p.382
38
Craig C. Douglasa, Guan Qina, Nathan Collierb, and Bin Gongc, Intelligent fracture creation for shale gas
development, International Conference on Computational Science, ICCS 2011, published in Procedia Computer
Science 4 (2011) 1745–1750;
39
Francis Gradijan, State Regulations, Litigation, and Hydraulic Fracturing, Environmental & Energy Law &
Policy Journal, Vol.7, No.1, 2012, pp.47-85 at p.48
40
DE Pierce, “Developing a Common Law of Hydraulic fracturing”, U. Pitt. L. Rev., 2010.
41
Ibid.

23

of about 5000 and 12,000 ft42
and using concrete to encase it to prevent seepage. Another
round of multiple horizontal drilling extends the well further thousands of feet with the
fracking fluids pumped through perforations under pressure to keep formation open and to
release gas.43
This procedure has been developed at a cheaper cost to make fracking
commercially viable.44
In an unconventional drilling, the well pad is a single one while in a
conventional drilling there is multiple well pads as shown in the diagram below, and this
makes it environmentally friendly.
Diagram 1: Traditional Wells vs. Unconventional Well
Source: Chesapeake Energy, 201245
With energy demand increasing and resource development increasingly becoming difficult,
the use of hydraulic fracturing in shale gas development is a necessity that is greatly
welcomed by modern society..46

42
Vaughan, A.D., Pursell, D., Frac Attack: Risks, Hype, and Financial Reality of Hydraulic Fracturing in the
Shale Plays, Reservoir Research Partners and Tudor Pickering Holt and Co, Houston, 2010 available at:
http://tudor.na.bdvision.ipreo.com/NSightWeb_v2.00/Downloads/Files/11930.pdf (accessed 22 March 2016).
43
Ibid.
44
D M. Guarnone, F. Rossi, E. Negri, C. Grassi, D. Genazzi, and R. Zennarom, An Unconventional Mindset for
Shale Gas Surface Facilities, Journal of Natural Gas Science and Engineering 6 (2012) 14 - 23 at 15;
Dianne Rahm, Regulating hydraulic fracturing in shale gas plays: The case of Texas, Energy Policy 39 (2011)
2974–2981 at p.2974
45
Mary Tiemann, et al., Marcellus Shale Gas: Development Potential and Water Management Issues and Laws,
Congressional Research Service (CRS) Report, January 27, 2012, p.10 originally from Chesapeake Energy,
“Drilling and Production”, 2012 available at http://www.askchesapeake.com/Eagle-Ford-Shale/Drilling-and-
Production/Pages/information.aspx (accessed 14 December, 2012)
46
Travis Zeik, “Hydraulic Fracturing Goes To Court: How Texas Jurisprudence On Subsurface Trespass Will
Influence West Virginia Oil And Gas Law”, 112 West Virginia Law Review, 599.

24

2.4.3 Implications
2.4.3.1 Positive Implications
1. Environmental Benefits: Gas has a lower emission level when it is compared to coal and
crude oil. In this sense, there is some environmental benefit with shale gad development. For
instance, SA power generation is mainly from coal to about 76% and this made SA the
highest carbon emitter in Africa and the 12th globally. Thus shale gas is a potential for
reducing this huge statistics for SA. The chart below (diagram 2) shows the country’s 2010
energy supply with coal leading by 67%. However, the problem of climate change cannot be
tackled with shale gas discovery.47
Another environmental benefit of shale gas is the
horizontal drilling that prevents multiple vertical wells causing surface disturbance.
Diagram 2: Total Primary Energy Supply in South Africa, 2010
Source: U.S. Energy Information Administration, 201348
2. Geopolitical and Energy Security Benefits: Shale gas development is capable of
transforming the US from a net importer of gas to a net exporter of gas.49
This means that
reliance on Middle East energy becomes less and the problems of the oil embargo that
occurred in the 1970s becomes less problematic. However, exporting countries may realise

47
Jinsheng Wangn, David Ryan, Edward J. Anthony, Reducing the greenhouse gas footprint of shale gas,
Energy Policy 39 (2011) 8196–8199
48
United States Energy Information Administration, South Africa: Overview, 17 January, 2013, available at:
http://www.eia.gov/countries/analysisbriefs/South_africa/south_africa.pdf (accessed 28 February, 2013)
49
Kenneth Barry Medlock III, Modeling the implications of expanded US shale gas production, Energy Strategy
Reviews 1 (2012) 33 – 41 at p.33

25

that they need to move into more sustainable paths in energy security.50
For SA, although it
has over 75% power generation making it the highest in Africa, some of its population still
remain without electricity.51
Shale gas has the potential of helping SA boost its power
generation and reduce its gas import from Mozambique. .
3 Economic and Employment Benefits: There are lots of economic benefits for the US and
SA with shale gas development. Shale gas production in the US contributed to almost $238
billion to its Gross Domestic Product (GDP) and $63 billion in taxes in 2012.52
Importantly,
shale production in the US will continue to increase.53
The employment rates in the US
increased by 28,000 between 2007 and 20011 due to shale gas activities.54
There are
estimates that point to the fact that employment from unconventional oil and gas activity
would rise to 3.5 million jobs in 2035.55
In SA on the other hand, studies have shown that
shale gas development can create up to 700,000 jobs and impact its GDP to about 9.6% if
between 20 and 50 TCF of shale gas is discovered. The table below (diagram 3) provides
these estimates. Another estimate shows that there would be direct and indirect employment
benefits of up to 850,000 people in SA as a result of shale gas development and it would
contribute to about $625m to the broader economy.56

50
Bill Law, Gulf states face hard economic truth about subsidies, BBC News Middle East, 18 December, 2012,
available at: http://www.bbc.co.uk/news/world-middle-east-20644964 (accessed 23 December 2015)
5151
52
IHS, America’s New Energy Future: The Unconventional Oil and Gas Revolution and the US Economy,
Volume 1: National Economic Contributions, An IHS Report, October 2012
53
Ibid.
54
Volume 2: State Economic Contributions, An IHS Report, December 2012
55
Volume 1: National Economic Contributions, An IHS Report, October 2012; Thomas C. Kinnaman, The
Economic Impacts of Shale Gas Extraction: Moving Beyond Jobs and Tax Revenues, Energy Delta Institute
(EDI) Quarterly, Volume 3, No. 4, December 2011 for general discussion on economic impacts of shale gas
56
Ivo Vegter, Shale Gas: Fracking for Africa, Africa in Fact – The Journal of Good Governance in Africa, Issue
4, September 2012, p.13

26

Diagram 3: Economic Benefits of Shale Gas in South Africa
Source: Shell, 2012.57
2.4.3.2 Negative Implications
There is the potential for negative implications of shale gas development around the areas of
health and the environment especially when the production processes are not properly done.
The issues of wastewater treatment and its disposal in shale gas development has been of
serious concern to environmentalists.58
There are concerns that fracking can cause
underground water contamination due to the use of chemicals for drilling that some consider
hazardous,59
and these concerns become very real where there are cases of faulty well
construction. Shale gas development can further cause noise pollution and also air pollution
because the drilling process is noisy and can emit methane and other organic compounds
respectively.60
One of the environmental risks to shale gas development is the potential for
frac fluid to straddle into adjourning lands leading to allegations of sub-surface trespass, and
this will be dealt with in chapter four of this study.

57
Shell, “Supporting Communities”, July 2012, available at: http://s01.static-shell.com/content/dam/shell-
new/local/country/zaf/downloads/pdf/karoobasin/supporting-communities.pdf (accessed 24 February, 2013)
58
Michael Greenstone, et al, Energy Policy Opportunities and Continuing Challenges in the Presence of
Increased Supplies of Natural Gas and Petroleum, The Hamilton Project, Framing Memo I, Brookings, June
2012
59
See, Dianne Rahm, Regulating hydraulic fracturing in shale gas plays: The case of Texas, Energy Policy 39
(2011) 2974–2981
60
Michael Greenstone, et al, supra, note 58 above.

27

The issue of negative environmental and health impacts of shale gas development continue to
pose a challenge and the US Environmental Protection Agency (EPA) has undertaken a study
on the effects of fracturing on water and the environment.61
A recent study has, however,
undermined the EPA blaming rising methane levels on farming and not on fracking.62
The
uncertainty with the effects of shale gas development on the environment and health of
mankind has led to two major schools of thought – one that believes that a moratorium on
shale gas development should be adopted based on the precautionary principle, and the other
that argues for more regulation of the industry to deal with these impacts.63
2.5 Shale Gas in United States and South Africa
Shale gas development in the United States occurs in the Marcellus, Barnett, New Albany,
Haynesville/Bossier, Fayetteville, and Antrim Shale Basins of the lower 48 federating states64
as shown in the map (diagram 4) below.
Diagram 4: United States Shale Basins

61
Environmental Protection Agency, Hydraulic Fracturing Research Study, June 2010, available at:
http://www.epa.gov/safewater/uic/pdfs/hfresearchstudyfs.pdf (accessed 10 December, 2012)
62
Washington Times, Study undermines EPA, blames rising methane levels on farming, not fracking, Monday,
14 March 2016. Available at: http://www.washingtontimes.com/news/2016/mar/14/farming-not-fracking-likely-
causing-methane-levels/ (accessed 21 March 2016).
63
Francis Gradijan, State Regulations, Litigation, and Hydraulic Fracturing, Environmental & Energy Law &
Policy Journal, Vol.7, No.1, 2012, 47-85 at pp.83-85; Terry W. Roberson, Environmental Concerns of
Hydraulically Fracturing a Natural Gas Well, Utah Environmental Law Review, VOL. 32 NO. 1, 2012, pp.67 –
136
64
Susan L. Sakmar, The Global Shale Gas Initiative: Will the United States be the Role Model for the
Development of Shale Gas around the World? Houston Journal Of International Law, Vol. 33, No.2, 2011
pp.369 – 417 at pp.375-376 at p.382

28

Source: Department of Energy, 2009.65
In South Africa, shale gas is mainly in the Karoo Basin and the US EIA estimates that the
country has about 485 TCF of technically recoverable shale gas.66
There are, however,
challenges with developing shale gas in the Karoo Basin because apart from being a semi-
desert arid area with little rainfall, it presents technical difficulties. With being a semi desert,
it means water is a problem for the region67
justifying its etymological name of ‘Khoisan’
translated to mean ‘thirsty land’.68
The technical difficulties arise with the limits on the use of
seismic imaging in production thus increasing the risks of development.69
However, the
region was once unsuccessfully explored for shale gas in 1965 by a government formed
company, Soekor (Pty) Limited.70
Another potential problem with shale gas development in
the region is the diversity of its people as it has a mixed ethnic population of about 300,00071
making meeting community expectations a tough one.72
The Petroleum Agency of South
Africa (PASA) has granted Technical Cooperation Permits (TCPs) to some companies
including Shell for exploring the Karoo Basin.73
The map below (diagram 5) shows the
various operators’ TCP coverage of the Karoo Basin.

65
Department of Energy, Modern Shale Gas Development In The United States: A Primer, April 2009, p.ES-2
66
Energy Information Administration, World Shale Gas Resources: An Initial Assessment of 14 Regions
Outside the United States, U.S. Energy Information Administration, 2011 available at:
http://www.eia.gov/analysis/studies/worldshalegas/pdf/fullreport.pdf
67
South African Water Research Commission, Regional Water Statistics, available at:
http://www.wrc.org.za/Pages/Resources_Regionalstats.aspx (accessed 13 January, 2013)
68
Melissa Stark, et al, Water and Shale Gas Development: Leveraging the US experience in new shale
developments, Accenture, 2012, p.36
69
Ibid, p.16
70
Environmental Management Plan South Western Karoo Basin Gas Exploration Application: Eastern Precinct,
Shell Exploration Company B.V., Volume 1, Final Report, April 2011, p.25
71
Melissa Stark, et al, supra, note 68 above, p.48
72
See, Johnson, M.R. et al, Sedimentary Rocks of the Karoo Supergroup, In Johnson, M.R, et.al (eds.), The
Geology of South Africa (Pretoria: Geological Society of South Africa and Johannesburg Council for
Geoscience, 2006); Thomas Branch, et al, “The Whitehill Formation: A High Conductivity Marker Horizon in
the Karoo Basin”, South African Journal of Geology, Vol. 110, 2007, pp. 465-476
73
Melissa Stark, et al, supra, note 68 above, p.16

29

Diagram 5: Map of Operators’ TCP coverage in the Karoo Basin
Source: Melissa Stark, et al, 201274
2.6 Conclusion
The development of shale gas that is abundantly available in many states in the US and in
SA’s Karoo Basin is highly reliant on the innovation and engineering success of hydraulic
fracturing combined with directional and horizontal drilling. It has been shown that without
this ingenuity of petroleum engineers, most gas resources would have still been trapped in
rocks. However, the shale gas’ economic and energy security impact as shown in SA and the
US have been downplayed by the negative environmental and health impacts. The seepage of
underground fracking fluids to adjoining lands is a likely environmental impact that can lead
to an action for subsurface trespass. This may also arise with injected fluids in an enhanced
recovery process. Interestingly, possible cause of action for subsurface trespass may arise
with horizontally or directionally drilled wells.

74
Ibid.

30

CHAPTER THREE
PETROLEUM AND MINERAL RIGHTS AND OWNERSHIP AND THE RULE OF
CAPTURE
3.1 Introduction
This chapter provides further context for this study and underpins the conceptual framework
in this research. The concepts of ownership and the rule of capture will be explained in this
chapter by discussing their meanings and application in the petroleum industry. The
ownership rights in the US and SA will be examined with different ownership theories
explored. The nexus between the rule of capture and ownership theories will be further
explored in the chapter, and we will see how the application of the rule of capture has been
whittled down with statutory exceptions.
3.2 Ownership in Law
By law, ownership is the relationship that exists between an individual, group, corporation or
government and an object that may be corporeal or incorporeal (such as a patent, copyright,
annuity, furniture) and movable or immovable such as land, car, animal, and house). The
subject of ownership is complex because of its relative nature based on the culture, customs
and laws of a people at any given time. This makes it rather difficult to find a common
denominator of ownership. In strict legal terms, the term ownership from a property law
perspective means that the law protects ones possession, use and enjoyment of property to the
exclusion of others except with the consent of the owner of the property.
Ownership of land that includes anything that is affixed to the land such as crops and
buildings is considered real property in contrast to personal property or chattel such as
furniture, clothing or money. Oil and gas resources are located underground which is still
considered part of land at common law. Under common law, ownership of land includes to
the heavens and extends downwards to the centre of the earth.75
The issue of ownership of
resources on land in this discourse is important as it may provide the basis for determining
liability for subsurface trespass in the event of seepage of fracking fluids into adjoining or
adjacent fields.

75
Terry D. Ragsdale, Supra, note 2 above.

31

3.3 Petroleum and Mineral Rights in the United States and South Africa
3.3.1 United States
The Ownership of oil and gas resources in the United State differs from that in most other
countries of the world. The situation of the title to petroleum within the United States is of
some interest since it embraces no less than four different types of ownership rights. These
are firstly the federal jurisdiction; secondly, that of the individual states; thirdly, that of the
individual landowner; and finally various mixtures of rights embracing native title. In this
connection, Americans came to believe that the land that they settled was Terra Nullius, that
is to say, empty. The existence of Native Americans, or Indians as they were later called, was
not recognised legally (indeed the original inhabitants of North America were only admitted
to citizenship quite late in the twentieth century). The great waves of European immigration
into America encouraged that nation to pass homesteading legislation and immigrants to take
up tracts of land. It also reserved great tranches of federal lands in some western states for
pastoral grazing.76
Individual American states vest title in petroleum in their contiguous
offshore areas out to the three-mile limit. Seaward of that line, and consequent upon the
Truman Proclamation of 1951, title to petroleum is vested in the federal government.77
Thus
there are about four different petroleum and mineral title regimes in the US.78
In the United
States, petroleum and mineral resources underneath individual or tribal lands belong to the
individual or tribal owner of the land, except as will be shown later, in cases where the rule of
capture applies.79
An exception is where the land in question belongs to the government
(federal or state) in which case, petroleum in situ belongs to the State. Ownership of mineral
rights means that the individual or tribal landowners have the legal right to explore, extract,
and sell any mineral that rests beneath the land, or receive royalty payment upon entering into
agreement with oil and gas companies for the development of resources underneath the
land.80
It should be emphasised that there are instances where there is a split ownership in
that the mineral rights are severed from the surface ownership of land.

76
Bunter, M.A.G., “Modern Practice in Petroleum Licensing”, Conwy: B & R Co., 2002, p.281
77
Ibid.
78
Ibid.
79
See, Duval, C. et al, International Petroleum Exploration and Exploitation Agreements, United States of
America, Barrows Company Inc., New York, 2nd
edn 2009.
80
Kilmer v. Elexco Land Servs., Inc., 990 A.2d 1147, 1150 (Pa. 2010); Kropa v. Cabot Oil & Gas Corp., 609
F.Supp.2d 372, 379-382 (M.D. Pa. 2009);

32

3.3.2 South Africa
This is in contradistinction to the situation in many other parts of the world where petroleum
in situ in all parts of the country belongs to the government of that country or State and only
the government can grant a right to explore for them. This is the situation in which South
Africa finds itself although historically the country had dual mineral ownership regime –
private and State ownership with the former based on the right to own property mainly
skewed in favour of the whites in the then apartheid regime. This was facilitated by the 1913
Black Land Act that barred blacks from owning land other than 13% of the rural land.
Importantly, the then mineral rights laws granted white owners surface rights up to the sky
above and down to the earth below as envisaged under the common law. State ownership
came in diverse forms and by virtue of the South African Development and Trust Act, 1936
some states held mineral rights while in some instances, the government held the mineral title
in trust for specific local communities.81
However, with the enactment of the Mineral and
Petroleum Resources Development Act 2002 (MPRDA), as promulgated in May 2004, the
idea of State ownership of mineral rights is now the only recognised form of title in South
Africa. However, the ‘old older’ mineral rights remained in force for five years to allow the
owners apply for new mineral rights which will remain in force for another 30 years. Under
section 3(1) of the MPRDA, mineral wealth of SA is considered a national asset and common
heritage belonging to every South African with the State as a custodian. Section 2(a) of the
Act recognised the right of the SA government to exercise sovereignty over the entire mineral
and hydrocarbon resources in the country.82
However, the transitional provisions of the
MPRDA made a provision that recognised some old practice whereby local communities that
were in the trust-like arrangements with designated trustees had entered into contractual
agreements with mining companies and were receiving royalty payment for use of land
and/or mineral rights. Item 11 of Schedule 2 to the MPRDA retained this old arrangement or
right by providing that royalties that accrued to such local communities would continue to
accrue to them subject to certain conditions such as submitting annual reports to the Minister
on the use and disbursement of the funds.

81
South African Development and Trust Act, 1936; Lebowa Minerals Trust Act, 1987; Ingonyama Trust Act,
1994; Rural Areas Act, 1974; for a discussion on these, see F.T. Cawood and R.C.A. Minnit, A Historical
Perspective on the Economics of the Ownership of Mineral Rights Ownership, Journal of the South African
Institute of Mining and Metallurgy, November/December 1998, pp. 369-376
82
Article (2)(1) of the United Nations (UN) Charter of Economic Rights and Duties of States (CERDS) grants
States permanent sovereignty (includes possession and disposal) over its natural resources.

33

The subject of ownership of petroleum and mineral rights is indeed of great significance in
determining whether there has indeed been subsurface trespass as only an owner or a person
in possession can maintain an action in trespass. As will be seen below, many a claim on sub-
surface trespass have turned on whether an owner or a royalty interest owner who has granted
possession to someone else can maintain a claim in trespass. It would appear that in countries
where there is no individual ownership of petroleum and mineral resources, there can hardly
be any issues of trespass if the complaint is, without more, an allegation that mineral wealth
underneath the owner’s land has been tampered with as he has no rights to them in the first
instance, although it is usually a crime to tamper with mineral wealth without government
license.
3.4 Theories of Private Petroleum and Mineral Interest in the United States
3.4.1 The Ad Coelum Theory
As noted above, the United States of America typifies the situation where mineral wealth
underneath the land of an individual or native tribe belongs to the individual or native tribe
subject to the rule of capture as will be shown shortly. This ownership presumption was
founded on the Ad Coelum Doctrine.83
By this doctrine, ownership of the surface includes
ownership to the heavens and extends downwards to the centre of the earth.84
Courts soon
discovered that the fugacious nature of oil and gas made strict application of the ad coelum
doctrine impractical. Application of the traditional ad coelum doctrine in the oil and gas
context would have obstructed development of an important natural resource by subjecting
producers to liability for draining oil and gas from offsetting properties. For this reason,
courts developed the "rule of capture"85
to be discussed shortly.
3.4.2 Non-Ownership Theory
The non-ownership in place theorists hold the view that oil and gas underneath the ground are
like wild animals and as such not subject to ownership until captured. Thus oil in the ground
does not belong to the owner of the land until he has taken steps to reduce it into possession

83
cujus est solum ejus est usque ad coelum et ad inferos
84
85
Ibid.

34

through his well bore. All he has is a right to explore for and reduce same into possession and
after which it becomes subject to ownership. His interest is in the nature of a profit a prendre,
an exclusive right to explore and develop the property in order to reduce the oil and gas into
possession.86
Federating states in the US that fall into this category include Louisiana,
California and Oklahoma.
3.4.3 Ownership in Place Theory
In the ownership in place jurisdictions, the view is that oil underneath the land belongs to the
owner of the land since they are part of the realty or land. This strict adherence to the ad
coelum doctrine in held in states like Texas, Kansas, Mississippi and New Mexico. Thus the
owner of the ground does not also necessarily need to reduce the oil into possession before it
becomes his own. In addition to this, the mineral interest owner retained the exclusive right to
explore and develop the property in order to reduce oil and gas to possession.87
However, this
ownership in place is subject to the rule of capture88
.
In dealing with the subject, the Texas Supreme Court in Elliff v. Texon Drilling Company89
stated as follows:
“In our state the landowner is regarded as having absolute title in severalty to the
oil and gas in place beneath his land. The only qualification of that rule of
ownership is that it must be considered in connection with the law of capture and
is subject to police regulations. 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....”
3.4.4 Corporeal and Incorporeal Distinction
It is very tempting to think that since both theories of ownership do subject oil and gas in the
ground to the rule of capture that the practical difference between them is blurred and of no
moment. However some of the cases dealing on trespass have turned on whether the owner of

86
Ibid
87
Ibid
88
Ibid
89
210 S.W.2d 558, 561 (Tex. 1948)

35

land actually has ownership of oil underneath his land. In places where the ownership in
place theory holds sway, the owner of land has a corporeal interest over the oil underneath his
land, whilst in non-ownership jurisdictions, the land owner has incorporeal interests over the
oil underneath his land in the nature of a profit a prendre.
At common law, a corporeal interest in land included the right of physical possession,
whereas an incorporeal right merely included the right to use the land.90
Although not
specifically related to trespass, a land owner in ownership in place jurisdictions may be able
to pledge the oil in the ground as he has a separate ownership interest whilst a non-owner
may not be able to do so as he does not own the oil underneath his land. A royalty interest is
an incorporeal interest in both non ownership and ownership in place jurisdictions, since a
royalty is a right to oil and gas when produced, not a right to present possession.91
3.5 The Rule of Capture
The rule of capture is a common law principle that originally states that with regards to water,
and in the absence of wilful waste or malice, a landowner could take all the water they could
under their land and do with it as it pleases them. Interestingly, the landowner(s) will not be
liable to their neighbours even if in collecting water under their land, deprived the neighbours
of the use of the water under the neighbour’s land.92
The rule of capture is in contrast to the
doctrine of reasonable use that states that a landowner’s right to groundwater is not absolute
restricted to the quantity that is necessary for his reasonable use.93
The rights of adjoining or
adjacent landowners is also relative and subject to reasonable use.94
The rule of capture was first articulated in 1843 in the classical case of Acton v. Blundell95
as
follows:
“That the person who owns the surface may dig therein, and apply all that is there
found to his own purposes at his free will and pleasure; and that if, in the exercise
of such right, he intercepts or drains off the water collected from the underground
springs in his neighbour’s well, this inconvenience to his neighbour falls within

90
91
Ibid.
92
See Sipriano v. Great Spring Waters of America, Inc., 1 S.W.3d 75, 76 (1999).
93
See Friendswood Development Co. v. Smith-Southwest Industries, 576 S.W.2d 21, 25 (1978).
94
See Friendswood Development Co. v. Smith-Southwest Industries, 576 S.W.2d 21, 25 (1978).
95
152 Eng. Rep. 1223 (Ex. Ch. 1843), quoted in East, 81 S.W. at 280.

36

the description of damnum absque injuria,96
which cannot become the ground of
an action.”
The rule of capture applicable to water resources was extended to the petroleum industry. In
the early years of the development of the petroleum industry, courts being faced with trespass
claims involving drainage of oil in the ground applied a teleological approach in determining
liability for trespass and thus developed the rule of capture. Moreover the migratory character
of oil in the ground resulted in the courts in the United States, likening petroleum in the
ground to wild animals with “fugacious” propensities. As with the law relating to wild
animals, where petroleum in the ground migrates to adjoining lands, the landowner may drain
the oil as long as the well from which the oil is drained is situated on his own land for the rule
of capture does not admit of trespass by directional drilling or slant well.97
Thus the rule of
capture has been defined as a common law legal doctrine that permits a landowner to extract
as much oil and gas as possible from a well located on his own property regardless of
whether the oil and gas extracted were originally located under his land or under
neighbouring tracts.98
The rule of capture was adopted in the state of Texas by the Texas Supreme Court in the
landmark case of Houston and Texas Central Railroad Corporation v. East.99
In that case, a
well was dug by a railroad company on its property in order to supply water to its machine
shops and it produced about 25,000 gallons of water per day but had dried up a neighbouring
landowner’s well used for household services. The landowner sued the railroad corporation
for the loss he suffered due to the dry well. Citing the decision in Action v. Blundell, the court
was faced between the rule of capture and the rule of reasonable use, also called the
American Rule. Based on public policy considerations, the court opted for the rule of capture
bot noting that the legislature could by its powers regulate groundwater
Again, in describing the rule of capture the Texas Supreme Court noted in the case of Elliff v.
Texon Drilling Co.100
as follows:
“Courts generally have come to recognize that oil and gas, as commonly found
in underground reservoirs, are securely entrapped in a static condition in the

96
A loss or damage without injury.
97
Travis Zeik, Hydraulic Fracturing Goes To Court: How Texas Jurisprudence On Subsurface Trespass Will
Influence West Virginia Oil And Gas Law, 112 West Virginia Law Review, 599.
98
Ibid.
99
98 Tex. 146, 81 S.W. 279 (1904).
100
210 S.W.2d 558 (Tex. 1948).

37

original pool, and, ordinarily, so remain until disturbed by penetrations from the
surface. It is further established, nevertheless, that these minerals will migrate
across property lines towards any low pressure area created by production from
the common pool. This migratory character of oil and gas has given rise to the so
called rule or law of capture. That rule simply is that the owner of a tract of land
acquires title to the oil or gas which he produces from wells on his land, though
part of the oil or gas may have migrated from adjoining lands. He may thus
appropriate the oil and gas that have flowed from adjacent lands without the
consent of the owner of those lands, and without incurring liability to him for
drainage.”
Thus, the rule of capture, a rule of non-liability, addressed the concern that the ad coelom
doctrine would discourage vigorous exploration for oil and gas resources.101
The Rule of
capture on its face seems to be in conflict with the traditional theory of ownership; that is, the
ad Coelum doctrine. An attempt in various states of the United States to reconcile both
doctrines gave rise to bifurcated theories of ownership. Whilst courts in some states felt the
need to deny private ownership of petroleum in situ because of the rule of capture (non-
ownership in place theory), others thought it appropriate to maintain private ownership of
petroleum underneath his land but subject only to the rule of capture (ownership in place
theory). Two dominant theories thus reigned supreme, depending on the federating state in
which the individual or native tribe finds themselves.
The rule of capture has been criticised since its adoption in the state of Texas over 100 years
ago and Texas remains one of the very few states that have retained the rule of capture.102
Many states in the US have come up with conservation laws in order to mitigate the problems
associated with the rule of capture such as the drilling of too many wells that can cause waste,
and the dissipation of an oil and gas reservoir. Conservation laws have sought to enforce rules
on fair share, pooling, prorationing, and well spacing for maximum recovery.103
• Fair Share: With fair share also known as correlative rights rule, landowners are
afforded equal opportunity to capture a reasonable amount of recoverable oil and gas
although the landowner does not have a right to that quantity of oil and gas so that

101
102
Sipriano, 1 S.W.3d. at 82, fn. 14.
103
See, e.g., Arkansas Code Annotated § 15-72-101 et seq.

38

where the landowner fails to act diligently, others can drain the oil and gas from under
her or his land.
• Pooling: this is a procedure or practice that allows for the combination of all or
portions of multiple oil and gas fields to form a unit or pool for the drilling of a single
oil and gas well. Conservation laws usually provide for pooling to be contained in the
oil and gas leases allowing the oil and gas companies to consolidate the leased
premises with adjoining leased tracts. Revenue from the pooled unit is shared on the
basis of surface or mineral acreage as owned by each interest owner.
• Well-Spacing Rules: Federating states’ laws and regulations usually specify the size
of the area in which one well may be drilled (drilling unit) and where another well
may be drilled within each unit. This prevents the drilling of multiple wells even
when one well could drain the same area.
• Proration or Proration Orders: This is a situation whereby laws of federating states
authorises regulatory bodies to set limits on rate of production from oil and gas wells
so as to protect the fair share that each oil and gas owner is entitled to. Proration
orders further helps to protect against over-production.
The rule of capture has thus been modified to prevent wilful waste, malicious harm, and
subsidence together with the fact that a legislature can by law modify the rule of capture. This
is not to say that its impact has been completely diminished in the petroleum industry. Its role
in subsurface trespass is linked to the various ownership theories for mineral rights that the
courts in the US have applied particularly in the state of Texas.
3.6 Conclusion
This chapter has shown that ownership of land extends to the heavens and downwards to the
centre of the earth under common law, ownership of resources on land is crucial in
determining liability for subsurface trespass litigation. Ownership of petroleum and mineral
resources in the US could be by the federal or state governments, or by individual and tribal
landowners although there may be split ownership with the mineral rights severed from the
surface land ownership. Unlike the US, ownership of petroleum and mineral rights is vested
with the government of SA under the MPRDA and the constitution allows the government to
exercise sovereignty on the people’s behalf. However, the MPRDA retained the rights of
communities with trust-like arrangements with designated trustees that allowed them to enter

39

into contractual agreements with mining companies and were receiving royalty payment for
use of land and/or mineral rights. The different ownership theories such as the ad coelom,
ownership and non-ownership theories and their application to the rule of capture showed
that liability is also dependent on extenuating circumstances.

40

CHAPTER FOUR
LIABILITY FOR SUBSURFACE TRESPASS: UNITED STATES VERSUS SOUTH
AFRICA
4.1 Introduction
The tort of trespass is an old common law action that plays out in different forms. The
chapter examines subsurface liability for trespass in shale gas development by exploring the
US and SA jurisdictions. The chapter will examine liability bearing in mind the ownership
theories applicable in each jurisdiction and by implication the rule of capture. Subsurface
liability will further be examined from a contractual perspective using the two most popular
petroleum contractual arrangements – the Concession Agreement, and the Production Sharing
Agreement (PSA).
4.2 Trespass to Land
Trespass, originating as a common law in England simple means any wrongful conduct
causing injury or loss. It is divided into three, namely trespass to the person, trespass to
chattels, and trespass to land. This study is mainly interested in trespass to land that means
the “unjustifiable or wrongful interference with the possession of land or ones possessory
rights in real property”104
There is trespass whether or not the trespasser knows he is
trespassing as long as there is intention to enter upon the land in question.105
Thus it is no
defence that the only reason for his entry was that he had lost his way or even that he
genuinely believed the land was his own.106
For there to be trespass, there must be
interference with possession107
and the commonest way to show this is by showing that there
is a subsisting lease in favour of the claimant. The common law principle in Latin that states
that, cuius est solum eius est usque ad coelum et ad inferos and meaning "for whoever owns
the soil, it is theirs up to Heaven and down to Hell" has consistently shaped the discussions
on trespass although the courts have in modern times restricted the right of absolute dominion
over the subsurface. By definition, a subsurface trespass to land occurs where there is an
unlawful or wrong interference with the subsurface possessory rights of a landowner. In the
context of the oil and gas industry, a subsurface trespass may arise under about three different

104
Winfield & Jolowicz on Tort, United Kingdon, Sweet and Maxwell, London, 15th
edn, 1998; see also,
Robert's River Rides v. Steamboat Dev., 520 N.W.2d 294, 301 (Iowa 1994)
105
ibid
106
ibid
107
ibid

41

circumstances – a) through directionally drilled wells; b) via injected fluids in enhanced
recovery projects; and c) through hydraulic fracturing operations for shale gas development.
The issues that arise then becomes whether it can be considered trespass to land where a third
party drills a directional or horizontal well that bottoms out beneath another’s property in
trying to access oil bearing in mind the rule of capture and the theories of ownership,
Similarly, would it amount to subsurface trespass if in fracturing a well, there is underground
seepage of contaminated water or chemical into another’s property again bearing in mind that
the rule of capture and theories of ownership, and knowing that the act occurred while trying
to recover oil and gas.
4.3 Liability for Subsurface Trespass in Shale Gas Development
Hydraulic fracturing is only one form of sub-surface invasion. Other forms of sub-surface
invasion are injection of fluids to enhance the flow of petroleum otherwise referred to as
secondary recovery projects, drilling a well such that it deviates into adjourning property
(directionally drilled wells). Since there are not too many cases directly dealing on hydraulic
fracturing operation, cases dealing with secondary recovery operation and directional drilling
will be used as analogies in the examination of liability for subsurface entry. The application
of these cases to hydraulic fracturing operation, will inevitably turn on how similar or
dissimilar the courts considers them to be. From both a functional and physical perspective, a
hydraulic fracture is largely analogous to a directionally drilled well. Hydraulic fracture
creates fissures that extends into adjourning lands through which proppants and other
chemical mixture flows into adjourning land. In a directionally drilled well the well bore
deviates from the land of origin to adjourning lands. In both situations, oil and gas are
produced from adjourning lands in a way not contemplated by the rule of capture.108
The courts in the various states of the United States of America have not been consistent in
their decisions as to what actually constitutes subsurface trespass in the hydraulic fracture
context. The foregoing is aimed at presenting various decisions from the superior courts in
various states in the US especially decisions from the state of Texas so as to provide a broad
view of how the issue has so far been handled. It is worthy of note that it is only the Supreme
Court of Texas that has dealt with the issue holistically although as will be seen later, the
common law of hydraulic fracturing, as it presently stands still leaves an important vacuum to

108
ibid

42

be filled. Importantly, this study is interested to see how the courts have dealt with the rule of
capture and the theories of ownership in reaching their decisions because this study is aimed
at exploring the role these principles have played in court decisions in the US, and to
determine whether the situation would be different in other shale gas emerging countries such
as South Africa. Thus the cases discussed hereunder reflect cases from federating states in the
US with both ownership in place theory and non-ownership in place theory. Court cases from
federating states that are non-ownership in place jurisdictions, mainly states such as
California, Louisiana and Oklahoma on the one hand are examined with cases from the state
of Texas that is an ownership in place jurisdiction, on the other hand. These cases are also
looked at from subsurface trespass circumstances related to mainly directionally drilled wells,
and hydraulic fracturing as these are the subsurface trespass circumstances that are connected
to shale gas development.
4.3.1 Subsurface Liability in the United States
4.3.1.1 Ownership Jurisdictions
In ownership in place jurisdictions, the landowner generally holds a corporeal possessory
interest in the land or real property and as such is considered able to sue for trespass to land,
and the courts have had little difficulty in reaching a conclusion of subsurface trespass.109
The
state of Texas is an ownership in place jurisdiction and has dealt with issues of subsurface
trespass than any other state in the US. The Texas jurisprudence can only be gleaned from a
consideration of the cases dealing with or relating to the subject and they have been few and
far between. These cases will be examined hereunder.
The first case dealing with the issue of subsurface trespass is perhaps the 1950 case of
Hastings Oil Co. V. Texas110
although its core is the allegation of directional drilling. In that
case, the Texas Company complained that Hastings had re-entered a well and side-tracked it
using a Whipstock,111
such that the well deviated and bottomed at the land leased by the
Texas Company. The issue before the court was whether the trial court had the jurisdiction to
permit an independent survey to confirm the allegation of trespass. The court held that both

109
See SUMMERS, I.W.L., THE LAW OF OIL AND GAS, 26, at 26 (1954 & John S. Lowe, Supp. 1990).
110
234 S.W.2d 389 (1950) available at: http://law.justia.com/cases/texas/supreme-court/1950/a-2623-0.html.
Last visited on 13/02/2016
111
A drilling tool used to prepare or "cut a window" in the casing of an existing well bore; that is for
sidetracking the original well bore

43

the Texas procedural rules and the inherent jurisdiction of the courts gave it the powers to
order such a survey. What is clearly implied in this case is that a directional well bottomed on
an adjoining land could in appropriate cases constitute a trespass.112
This case highlights the
fact that in an ownership in place jurisdiction, a directional well subsurface trespass only
raises questions as to whether the elements of the tort of trespass to land has been satisfied.
The Delhi-Taylor cases113
are four Texas cases dealing with identical facts and involving the
same plaintiff. In these cases, the Defendants owned leases very close to the Plaintiff’s lease.
They spud a well and planned to perform a hydraulic fracture operation to enhance the well
productivity.114
The issue before the court was whether the railroad commission (an
administrative body) had primary jurisdiction to hear the cases rather than the District courts.
The Texas Supreme Court held that an allegation of trespass by hydraulic fracture is
inherently judicial. The courts therefore had jurisdiction to hear the case. In the opinion of the
court:
We think the allegations are sufficient to raise an issue as to whether there is a
trespass. The invasion 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.
What this implies is that a hydraulic fracture could in fact be trespass in appropriate cases.
The case did not, however, go as far as stating the circumstances in which hydraulic
fracturing could constitute trespass.

112
113
Gregg v. Delhi-Taylor Oil Corp., 344 S.W.2d 411 (rex. 1961); Delhi-Taylor Oil Corp. v. Holmes, 344
S.W.2d 420 (Tex. 1961); Delhi-Taylor Oil Corp. v. Gregg, 337 S.W.2d 216 (Tex. Civ. App. 1960), aff'd, 344
S.W.2d 411 (Tex. 1961); Holmes v. Delhi-Taylor Oil Corp., 337 S.W.2d 479 (Tex. Civ. App. 1960), rev'd, 344
S.W.2d 420 (Tex. 1961). Collectively, these four opinions will be referred to as the Delhi-Taylor cases
114
See Delhi-Taylor V. Holmes, Greggs V. Delhi--Taylor

44

The opinion in the Delhi-Taylor cases remained the precedent in Texas for about three
decades on hydraulic fracturing subsurface trespass until the decision of Texas Supreme
Court in the case Geo Viking Inc. V. Tex-Lee Operating Co.115
Here, Tex-Lee hired Geo
Viking to fracture treat its well. Due to equipment breakdown, Geo Viking was not able to
fracture treat the well to the desired length. Tex-Lee sued Geo Viking for breach of contract.
Part of its claim was for the value of oil and gas it would have realised if the well had been
fracture-treated to the desired length. The trial court awarded damages to the tune of
$300,000.00. Geo Viking appealed, contending that the instructions to the jury ought to have
limited the value of oil and gas to what Tex-Lee would have legally obtained. In other words,
fracking beyond property lines would be trespass and Geo Viking would not be entitled to the
value of oil and gas resulting from such invasion. The intermediate Court of Appeal held that,
that argument ran counter to the rule of capture. On further appeal to the Supreme Court of
Texas, it was decided that fracking which crosses property lines was trespass. However, six
months after this opinion, the Texas Supreme Court withdrew its opinion, which simply
means that the decision of the Court of Appeal stood as final position with questionable
precedential value.116
In Railroad Commission V. Manziel,117
the Texas Supreme Court had to decide whether the
injection of water into a well as part of secondary recovery process, that could result in
premature flooding and capable of damaging adjourning wells constituted trespass. The
Texas Supreme Court (overruling the trial court) considered the importance of secondary
recovery process and the fact that the injection of the water had the permit of the railroad
commission and came to the conclusion that there was no trespass. The court’s emphasis on
the permit to inject the water is note-worthy. It stressed that: when the railroad commission
“authorises 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 court did not however foreclose liability for trespass whenever
a permit is obtained from the commission. This case highlights the situation where a permit
may displace the rule of capture and ownership in place theories for a case on subsurface
trespass.

115
817 S.W.2d 357 (1991).
116
Terry D. Ragsdale, Supra, note 2 above
117
361 S.W.2d 560 (Tex. 1962).

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