Keith Hall, ‘Ruminations on the Continuing Evolution of Trespass Law in the Context of Mineral Development’

A trespass is an unauthorized entry upon the land of another. In general, this is a fairly simple legal concept. Indeed, most non-lawyers have a pretty good idea of what ‘trespass’ means. But various complications can arise in the context of oil and gas or mining activities. Some of these complications arise from the property laws that govern the right to engage in mineral production. First, for example, multiple courts have concluded that an owner’s right to exclude others from her property – one of the sticks of ownership that lies at the heart of trespass claims – becomes attenuated at locations deep below the surface, just as this right becomes attenuated at substantial elevations above the earth. Second, the property laws of most states allow landowners to sever mineral rights from surface ownership. In such circumstances, both the surface estate owner and the mineral estate owner may have certain rights of use and possession in the same tract of land. They each may have some ability to assert trespass claims against the other, but the figurative boundaries between their respective rights in the tracts where they share ownership are not always as clear-cut as the literal boundaries between two neighboring, separate tracts of land …

Keith B Hall, Ruminations on the Continuing Evolution of Trespass Law in the Context of Mineral Development, 8 LSU Journal of Energy Law and Resources (2020).

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