Substantial Burden and the Reasonable Necessity Doctrine in Severance Deed Ownership: Whiteman v. Chesapeake Appalachia

Abstract

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