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Briggs Update: Pennsylvania Superior Court Affirms Dismissal of Landowners’ Subsurface Trespass Claim While Leaving Door Open for Future Landowners

The Pennsylvania Superior Court returns to the Briggs case after the Supreme Court reversed its prior decision.  On December 8, 2020, the Superior Court reconsidered whether the trial court properly granted summary judgment against landowners as to their subsurface trespass claim.  The landowners claimed that a natural gas operator’s hydraulic fracturing operations on its neighboring leased property constituted a subsurface trespass onto their property.  The Superior Court originally vacated the trial court’s decision.  However, on January 22, 2020, the Pennsylvania Supreme Court reversed the Superior Court’s decision.

The Supreme Court “rejected as a matter of law the concept that the rule of capture is inapplicable to drilling and hydraulic fracturing that occurs entirely within the developer’s property solely because drainage of natural resources takes place as the direct or indirect result of hydraulic fracturing, or that such drainage stems from less ‘natural’ means than conventional drainage.”  Briggs v. Southwestern Energy Prod. Co., 224 A.3d 334, 348-49 (Pa. 2020).  The Supreme Court held that a plaintiff asserting a cause of action for trespass must be able to prove all elements of that claim –including that physical intrusion under its property occurred.  Id. at 349.  The Supreme Court remanded the case back to the Superior Court for its consideration as to whether the landowners “may proceed on a physical-invasion trespass cause of action.”  Id. at 351.

On remand, the Superior Court held that the landowners failed to “specifically allege that the [operator] engaged in horizontal drilling that extended onto their property.  Briggs, v. Southwestern Energy Prod. Co., 2020 WL 723311, *2 (Pa. Super. Ct. Dec. 8, 2020).  As such the Superior Court reinstated the trial court’s grant of summary judgment in favor of the operator.