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

Abstract

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