Robert L. ANDREWS, et al., Plaintiffs Below, Petitioners v. ANTERO RESOURCES CORPORATION and Hall Drilling, LLC, Defendants Below, Respondents

No. 17-0126

Supreme Court of Appeals of West Virginia.

Submitted: January 15, 2019 Filed: June 10, 2019

Anthony J. Majestro, Powell & Majestro, PLLC, James C. Peterson, Aaron L. Harrah, Hill, Peterson, Carper, Bee & Deitzler, PLLC, Charleston, West Virginia Attorneys for the Petitioners

W. Henry Lawrence, Richard M. Yurko, Lauren K. Turner, Amber M. Moore, Jason W. Turner, Steptoe & Johnson PLLC, Bridgeport, West Virginia, Ancil G. Ramey, Steptoe & Johnson PLLC, Huntington, West Virginia, Donald C. Sinclair II, Steptoe & Johnson PLLC, Wheeling, West Virginia Attorneys for Respondent, Antero Resources Corporation

Christopher L. Hamb, Craig S. Beeson, Robinson & McElwee, PLLC, Charleston, West Virginia, Stephen F. Gandee, Clarksburg, West Virginia Attorneys for Respondent, Hall Drilling, LLC

William M. Herlihy, Spilman Thomas & Battle, PLLC, Charleston, West Virginia, Matthew P. Heiskell, Spilman Thomas & Battle, PLLC, Morgantown, West Virginia Attorneys for Amici Curiae, West Virginia Oil & Natural Gas Ass'n, and The Independent Oil & Gas Ass'n of West Virginia, Inc.

Louis S. Southworth, Albert F. Sebok, Candice M. Harlow, Jackson Kelly PLLC, Charleston, West Virginia Attorneys for Amici Curiae, West Virginia Chamber of Commerce, et al.

Jenkins, Justice:

*860This appeal from the Mass Litigation Panel ("MLP") pertains to ongoing Marcellus shale litigation and arises from claims asserted by surface owners of several tracts of land. These surface owners contend that their use and enjoyment of their land is being improperly and substantially burdened by horizontal wells being used to develop the Marcellus shale underlying their properties,1 even though the wells are not physically located on any of their properties. The MLP resolved the claims based upon property rights arising from relevant severance deeds, and granted summary judgment in favor of the defendants below, who are the leaseholder of the gas and oil estates and the company who is conducting the drilling. In granting summary judgment, the MLP concluded that the effects on the surface owners resulting from the horizontal drilling were within the implied rights to use the surface granted by virtue of the severance deeds, and did not impose a substantial burden on the surface owners. Thus, to overcome summary judgment on this issue, the surface owners were required to establish the existence of a genuine issue of material fact as to whether the effects on their surface estates were reasonably necessary to develop the mineral estate, or whether such effects substantially burdened the owners of the relevant surface estates. Having considered the briefs submitted by the parties and by Amici Curiae,2 the appellate record, the oral arguments presented, and the relevant law, we find no genuine issues of material fact were established in this particular case, and we, therefore, affirm the order of the MLP.

**I.**

**FACTUAL AND PROCEDURAL HISTORY**

Antero Resources Corporation and Antero Resources Bluestone, LLC (collectively "Antero"), Respondents herein, are engaged in the development of the Marcellus shale in West Virginia and own numerous horizontal Marcellus shale wells located in Doddridge, Harrison, and Ritchie Counties.3 Antero contracted with Hall Drilling, LLC ("Hall"), also a Respondent, for the construction of well pads and roads, well drilling, and the operation of wells and gathering lines. Relevant to the instant litigation, Antero has leasehold rights to develop oil and gas underlying various properties in Harrison County, including surface properties that are resided on and/or owned by the Petitioners herein4 (collectively "Property Owners").

*861Antero's leasehold rights to develop the subject oil and gas located in Harrison County derive from severance deeds, executed in the early 1900s, that retained mineral rights underlying the properties. The properties belonging to Robert and Deborah Andrews,5 Rodney Ashcraft, and Greg McWilliams are each subject to a severance deed executed in 1905 that reserves mineral rights including,

> the right to drill, bore and operate for [oil and gas] at any time, also the right to use water from said land for the purpose of said drilling, boring and operating, and the right at any time to remove all necessary machinery used for the last named purposes, upon or off said land[.]

These properties also are the subject of a mineral lease that was executed in 1984, referred to by the parties as "the Moran Lease." The express rights granted to Antero in the Moran Lease include:

> [E]xclusive possession and use for the purposes of exploring and operating for, producing, and marketing oil, gas, natural gasoline, casing-head gas, condensate, related hydrocarbons, and all products produced therewith or therefrom by methods now known or hereafter discovered, of injecting, storing, and withdrawing any kind of gas regardless of the source, of protecting stored gas, of injecting gas, air, water, and other fluids into sands and formations for the purpose of recovering and producing said minerals or for the purpose of disposing of waste fluids ... [along with] all other rights and privileges necessary, incident to, and convenient for the economical operation of said land alone and conjointly with other lands for the production and transportation of said minerals[.]

The severance deed pertaining to the remaining property subject to this appeal, the property owned by Robert Siders, was executed in 1903. It reserved rights to "all the oil and gas underlying the land herein conveyed together with the privilege of operating for and Marketing same." A 2001 mineral lease relevant to the Siders' property, referred to by the parties as "the Bland Lease," granted rights to Antero that included

> exploring and operating for, producing and marketing oil and gas, natural gasoline, casing head gas, condensate, related hydrocarbons, and all other related products, including the building of roads, laying pipelines and installing equipment thereon to take care of such products ... [along with] the privilege of using sufficient water and gas from said premises to run all machinery necessary for drilling and operating thereon, and all rights of way necessary to develop the premises or remove equipment, and related items[.]

Relevant to this appeal, Antero operates six well pads to facilitate its horizontal drilling in the Cherry Camp area of Harrison County.6 Horizontal drilling allows for the development of multiple wells from each surface well pad.7 Reportedly, five of the six well pads at issue are located within a range of between .42 mile and 1 mile from Property Owners' properties. No well pads are located on any of Property Owners' land. In addition to the construction of the well pads, and the drilling and operation of the horizontal wells, *862the development of the Marcellus shale has also required the construction and/or operation of well roads, pipelines, and a compressor station.8 The hydraulic fracturing of the horizontal wells also necessitates water and sand, which are delivered by trucks.9

According to Property Owners, the activities of Antero and Hall in relation to their development of the Marcellus shale have caused Property Owners to lose the use and enjoyment of their properties due to the annoyance, inconvenience, and discomfort caused by excessive heavy equipment and truck traffic, diesel fumes and other emissions from the trucks, gas fumes and odors, vibrations, noise, lights, and dust.

In 2013, Property Owners filed a complaint in the Circuit Court of Harrison County10 alleging claims for "private temporary continuing abatable nuisance and negligence"11 against Antero and Hall arising from their "natural gas exploration, extraction, transportation and associated activities in close proximity to [Property Owners'] properties."12 By order entered on November 25, 2014, this Court transferred the claims to the MLP where they were designated as the "Harrison County Cherry Camp Trial Group."13

Following discovery, Antero and Hall each filed motions for summary judgment. Thereafter, Property Owners filed their response in opposition to the motions for summary judgment. In their response, Property Owners voluntarily withdrew their negligence claim, and, during various hearings before the MLP, the Property Owners' counsel repeatedly stated that no property damage claims were being asserted;14 this left only Property Owners' claim of nuisance to be resolved by summary judgment. However, the MLP, in its summary judgment order entered on October 11, 2016, declined to apply principles of nuisance law, and instead ruled on the summary judgment motions based upon Antero's contractual and property rights. The MLP explained that,

> [b]ecause the Court resolves summary judgment based upon Antero's contractual and property rights, it does not address the issues to which common law private nuisance principles would be applied. The Court, therefore, reaches no conclusion regarding whether Antero's actions or its employees' or contractors' actions would otherwise meet the legal definition of a nuisance.

(Quotations omitted).15 The MLP also found that "Antero has leasehold rights to develop *863the oil and gas underlying the properties that are the subject of [Property Owners'] complaint. Those development rights were retained by the oil and gas mineral owners in the severance deeds separating the surface estates from the mineral estates." Furthermore, the MLP concluded that "the noise, traffic, dust, lights and odors of which [Property Owners] complain are reasonable and necessarily incident to Antero's development of the underlying minerals." Therefore, the MLP granted summary judgment to Antero and Hall. Property Owners then filed a motion, pursuant to Rule 59(e) of the West Virginia Rules of Civil Procedure,16 to alter or amend the judgment, which the MLP denied by order entered on January 11, 2017. This appeal followed.

**II.**

**STANDARD OF REVIEW**

We have previously held:

> The standard of review applicable to an appeal from a motion to alter or amend a judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same standard that would apply to the underlying judgment upon which the motion is based and from which the appeal to this Court is filed.

Syl. pt. 1, *Wickland v. Am. Travellers Life Ins. Co* ., 204 W. Va. 430, 513 S.E.2d 657 (1998). Because the judgment underlying the MLP's Rule 59(e) ruling was the MLP's award of summary judgment, this Court's review is *de novo* . *See* Syl. pt. 1, *Painter v. Peavy* , 192 W. Va. 189, 451 S.E.2d 755 (1994) ("A circuit court's entry of summary judgment is reviewed *de novo* ."). Accordingly, we proceed with our plenary review of this appeal.

**III.**

**DISCUSSION**

In granting summary judgment in favor of Antero and Hall, the MLP found that "Antero has leasehold rights to develop the oil and gas underlying the properties that are the subject of Plaintiffs' complaint. Those development rights were retained by the oil and gas mineral owners in the severance deeds separating the surface estates from the mineral estates." In view of Antero's leasehold rights and the original severance deeds, the MLP concluded that,

> [b]ased on its review of the record, the Court concludes there are no disputed issues of material fact and Defendants Antero and Hall are entitled to summary judgment as a matter of law. Antero, as the owner of the mineral estate, and its contractors have the right to use the Plaintiffs' surface estates for the production of its mineral rights. The Court further concludes that Antero and its contractors have the legal right to develop the mineral estate. The Court finds that the activities complained of were reasonably necessary to the production of the mineral estate and did not exceed the fairly necessary use *864thereof or invade the rights of the surface owner[.]

Property Owners contend that the MLP applied the wrong legal standard and ignored established rights belonging to surface owners under West Virginia law. Specifically, they contend that a mineral owner does not have the right to extract natural gas using methods that were uncontemplated when the operative severance deeds were executed, where those uncontemplated methods are not necessary to the extraction of the minerals and substantially burden the surface. According to Property Owners, the MLP impliedly and mistakenly relied on *Quintain Development, LLC v. Columbia Natural Resources, Inc.* , 210 W. Va. 128, 556 S.E.2d 95 (2001),17 to conclude that the severance deeds constituted an easement and Antero's actions could not constitute a nuisance because their actions did not exceed the scope of the easement.18

Antero and Hall respond that the MLP applied the correct legal standards as to the rights of mineral owners vis-à-vis surface owners under West Virginia law, and correctly concluded that Antero holds an implied easement to use Property Owners' surface estates to the extent reasonable and necessary to develop its mineral leasehold.

Both of the severance deeds at issue granted to the mineral owner the right to produce oil and gas. The 1905 deed granted the mineral owner "the right to drill, bore and operate for [oil and gas]," while the 1903 deed retained for the mineral estate "all the oil and gas underlying the land herein conveyed *together with the privilege of operating for and marketing same.* " (Emphasis added). These express provisions clearly demonstrate a basic intention by the parties to the deeds that oil and gas would be extracted from the mineral estate. On this point there is no dispute.19 In general, where a deed severs the mineral and surface estates and plainly allows for the extraction of the mineral estate, certain uses of the surface by the mineral owner are necessarily implied. As early as 1909, this Court held that "[t]he owner of the surface cannot obstruct the mineral owner from a use of the surface [that is] *fairly useful and necessary* ." Syl. pt. 1, in part, *Porter v. Mack Mfg. Co* ., 65 W. Va. 636, 64 S.E. 853 (1909) (emphasis added). In reaching this holding, the *Porter* Court reasoned that, even

> [i]f the deed [in question] had not reserved the right to mine and remove the minerals, *there would have been an implied right to use the surface in such manner and with such means as would be fairly necessary for the enjoyment of their estates in the minerals* . Without this right, what account would be the minerals which they reserved?

*Id* . at 638, 64 S.E. at 854 (emphasis added). *See also**Phillips v. Fox* , 193 W. Va. 657, 662, 458 S.E.2d 327, 332 (1995) ("It is well-settled that ownership of a mineral estate includes the right to enter upon and use the superjacent surface by such manner and means as is fairly reasonable and necessary to reach and remove the minerals."); Syl. pt. 1, *Squires v. Lafferty* , 95 W. Va. 307, 121 S.E. 90 (1924) ("The owner of the mineral underlying land *865possesses, as incident to this ownership, the right to use the surface in such manner and with such means as would be fairly necessary for the enjoyment of the mineral estate."). *See generally* 1A Rev. Nancy Saint-Paul, *Summers Oil & Gas* § 8:4 at 256 (3d ed. 2015) ("If in the grant or reservation of a separate interest in oil and gas the grantor does not expressly grant or retain the rights necessary for the production and operation of the land for oil and gas purposes, these rights, such as easement and water rights, *are held to be created by implication* ." (emphasis added) (footnote omitted)). Thus, insofar as vertical wells would have been the normal method of extracting oil and gas contemplated by the parties at the time the relevant severance deeds were executed, it clearly would be a fairly necessary method for Antero to enjoy the mineral estate it has leased. In other words, Antero and Hall would certainly be within their rights to enter Property Owners' land and drill vertical wells.

However, the instant matter takes the query farther. While the foregoing cases make clear that a mineral owner necessarily has the implied right to "use the surface in such manner and with such means as would be fairly necessary for the enjoyment of their estates in the minerals," *Porter* , 65 W. Va. at 638, 64 S.E. at 854, they do not address whether changes in mining methods driven by technological advancements that, according to Property Owners, place a greater burden on their surface estates even in the absence of physical wells being drilled thereupon, would be "fairly necessary for the enjoyment of" the mineral estate. *Id.*20

Property Owners urge that this dispute is resolved by a line of cases wherein this Court rejected certain uses of surface estates utilizing advances in technology finding, *inter alia* , that such methods were not within the contemplation of the parties at the time the severance deeds were executed. However, Property Owners misunderstand the significance of these cases. Notably, in this line of cases, the Court considered various deeds that did not expressly grant the mineral owner a right to destroy the surface, and rejected methods of removing minerals that caused such destruction when they did not exist at the time of the execution of the deed and could not possibly have been within the contemplation of the parties to the severance deed.21

*866The Court addressed this concept in *West Virginia-Pittsburgh Coal Co. v. Strong* , 129 W. Va. 832, 42 S.E.2d 46 (1947). In *Strong* , the mineral owner sought to strip mine an eight-acre area of the surface estate. The mineral estate had been severed in a 1904 deed that also granted

> "the right to enter upon and under said land with employees, animals and machinery at convenient point and points, and to mine, dig, excavate and remove all said coal, and to remove and convey from, upon, under and through, said land all said coal and the coal from other land and lands and to make and maintain on said land all necessary and convenient structures, roads, ways, and tramways, railroads, switches, excavations, air-shafts, drains and openings, for such mining, removal and conveying of all coal aforesaid, with the exclusive use of all such rights of way and privileges aforesaid, including right to deposit mine refuse on said land and waiving all claims for injury or damage done by such mining and removal of coal aforesaid and use of such privileges.

> "All of the surface of the said land occupied or used by the said parties of the second part, or their assigns, above the level of the Pittsburg #8 vein of coal, for their operations herein shall be paid for before the same shall be so used, or occupied, at the rate of One Hundred Dollars per acre, and said party of the first part, his heirs or assigns shall execute and deliver a deed therefor, in fee simple, free from liens and incumbrances [sic], when said surface shall be taken and paid for."

*Id.* at 833-34, 42 S.E.2d at 48 (quoting deed). In concluding that the parties to the 1904 deed did not grant the right to remove the coal by the process of strip mining, the Court based its decision in significant part on evidence that the surface owner did not express any intent that the surface be destroyed.

This Court further developed this area of the law by creating a distinction between injuries or necessary or convenient burdens upon the surface as opposed to its destruction when considering what was within the contemplation of the parties at the time they executed a severance deed. In *Oresta v. Romano Bros* ., 137 W. Va. 633, 73 S.E.2d 622 (1952), the Court pointed out that

> there is a pronounced practical distinction between an injury to, or the imposition of a necessary or convenient burden upon, the surface of land containing coal in or underneath the surface, each of which may be caused by the mining and the removal of such coal through and by means of excavations, tunnels, and passageways beneath the surface, or through and by means of shafts, borings, slopes, or entries which extend from an opening on the surface in and to the underlying coal and are located throughout their entire course and extent under the surface, *and the destruction, the removal, or the relocation in the mining and the removal of coal, of the overlying surface which necessarily results in substantial measure from the use of the presently recognized strip mining method* . *See* discussion of different types of coal mining rights in *Tokas v. J. J. Arnold Company* , 122 W. Va. 613, 11 S.E.2d 759 [ (1940) ]. In the first mentioned situation, the surface, even when broken or caused to subside, is damaged, rather than destroyed; but in the second the surface affected is completely disturbed and is either destroyed or moved to a place other than that of its original location. *In view of this real and substantial distinction between an injury to, or a burden upon, the surface, in substantially its original location, and the removal of**867*the surface from that location, it is manifest that mining rights which at the time of their creation are intended to limit, regulate and govern operations and methods which are carried out or engaged in chiefly in the coal and beneath the surface, do not apply to, cover, or permit the removal or the relocation of the overlying surface in the mining and the removal of the coal beneath it* .

*Oresta* , 137 W. Va. at 645-46, 73 S.E.2d at 629-30 (emphasis added).

Similarly, in *Brown v. Crozer Coal & Land Co* ., 144 W. Va. 296, 107 S.E.2d 777 (1959), this Court found that the parties to the deeds in question did not agree to the removal of coal by the auger method of mining,22 which they found to be similar to strip mining and caused significant damage to the surface. The *Brown* Court described the significant damage to the surface caused by the auger mining, which

> split the plaintiffs' land in two sections, the spoilage being over a mile in length and up to 400 feet wide in places, ... the timber on the land in connection with the mining of the coal [was] destroyed or diminished in value. The right of ingress and egress and the building of roads certainly was not anticipated at the time the deeds in question were executed to any such extent as used in auger mining as indicated on the land of the plaintiffs in this case. The defendant's superintendent, having supervision of this work, testified that the operation in the building of the roadway was not done in a skillful and workmanlike manner. The roadway was not provided with drains and the operation was merely made as stated above, to obtain the coal from the land. *There is no question that a considerable amount of surface was removed in obtaining the coal* ....

*Id.* at 309-10, 107 S.E.2d at 786 (emphasis added). *Cf.**Kell v. Appalachian Power Co* ., 170 W. Va. 14, 19, 289 S.E.2d 450, 456 (1982) (enjoining power company from using method of aerial broadcast spraying toxic herbicides to maintain right-of-way for its power transmission line and finding that "[i]t was clearly not the intention of the parties to allow the power company *to destroy all living vegetation within the area sprayed or adjoining areas where these deadly herbicides could drift* . Such action is not necessary to the protection of the power company's equipment. Aerial broadcast spraying *destroys the vegetation indiscriminately* , whether it poses a danger or hindrance to the power company's equipment or not. Nor can it be said that the parties intended, by the grant in the 1939 indenture *to repeatedly expose themselves to hazardous activities and chemical agents* ." (emphasis added)).

The distinguishing factor between the forgoing cases and the case *sub judice* lies in the incompatibility of the use of the surface by the mineral owner with the use of the surface by the surface owner. In each of the cases discussed above, the use of the surface by the mineral owner caused such significant damage to the surface that it amounted to the destruction thereof and was utterly incompatible with any use the surface owner may have engaged in or anticipated as a future surface use. *See**Quintain Dev.* , 210 W. Va. at 133, 556 S.E.2d at 100 (identifying many of the same cases discussed above and commenting that, if the mineral owner's right to interfere with the surface owner's enjoyment of his or her land was "expanded to include surface mining, when that type of mining did not exist in the relevant area at the time of the execution of the deed, then the interference with the owner's ability to enjoy his or her land would have been materially different from that which the owner contemplated at the time of granting the right. Moreover, *any use such a surface owner may have planned for the surface of the land, which would have been**compatible**868*with forms of mining coal that were known at the time of the execution of the deed, could very well have been rendered impossible* if the general terms of such a deed were interpreted to include surface mining." (emphasis added)); *Buffalo Mining* , 165 W. Va. at 14-15, 267 S.E.2d at 724 (acknowledging that cases finding no authority to strip and/or auger mine "were each based on two grounds. First, at the time of the original severance deed, neither strip nor auger mining was known and therefore could not have been within the contemplation of the parties. Second, *and of even more importance, was the fact that these mining methods virtually destroyed the surface for its normal use* [.]" (emphasis added)).23

In the case *sub judice* , on the other hand, there has been no claim of destruction of the surface estates, or even of any damage thereto.24 In analyzing this issue, the MLP described the use of traditional vertical wells and thereby indicated the type of burden to the surface that would have been contemplated by the parties at the time the relevant deeds were executed:

> [t]raditional oil and gas wells in West Virginia are vertical wells, with smaller drill rigs and fairly small well pads, located on one-third to one-half of an acre of land. A well road is built, the well pad is built, and the drill rig drills the vertical well several thousands of feet deep. After the well is drilled, a steel casing is put in the well, the drill rig leaves, and a hydro-fracturing company comes in to fracture the well. After the well is fractured and flow-back occurs, production starts and pipelines carry the natural gas from the well head to a larger transmission line for transport to market.

The MLP found that the burden on the surface estates created by horizontal drilling that is taking place .42 mile to 1 mile away from the subject property is not materially different from the burden that would be endured from the placement of traditional vertical wells directly on Property Owners' land, along with the construction of an associated well pad, lease road, and pipeline for each well,25 which is within Antero's rights. In *869fact, Antero and Hall submitted excerpts from the report of their expert, Robert W. Chase, who indicated that horizontal drilling is the best means of developing the Marcellus shale formation because it requires fewer wells than vertical drilling and thereby generally minimizes the disruption to nearby surface estates.26

Because of the burden that could be placed on Property Owners' physical land by vertical drilling thereupon, and the associated limitations on Property Owners' use and enjoyment of the surface by virtue of such drilling, it was incumbent upon Property Owners to present evidence to establish how the burdens resulting from the off-site horizontal drilling of which they now complain (i.e., dust, traffic, lights, noise, and fumes) has prohibited them from using their land in any way that would be compatible with the physical presence of vertical wells directly on their land. They have failed to do so. Indeed, Property Owners have failed to assert that they are being deprived of any uses that would be compatible with a vertical well located directly on their property. As the MLP expressly found, there is "no evidence in the record indicating Antero's methods are 'materially different' from the extraction methods contemplated at the time the minerals were severed or acquired, or are incompatible or destructive to the surface estate." Because of this, and because Property Owners have claimed no damage whatsoever to their surface estates, we find the foregoing cases simply are not instructive in the context presented by the instant litigation. Instead, we are guided by other cases that did not involve such extensive damage to the surface estate. These cases direct greater focus upon how to balance the competing rights to utilize the surface possessed by surface owners and mineral owners.

An early case in this line is *Squires v. Lafferty* , 95 W. Va. 307, 121 S.E. 90 (1924). In *Squires* , the surface owners had refused to allow the mineral owner to transport across the surface machinery, equipment, and men needed for its drilling operations. The *Squires* Court adopted a "fairly necessary" standard for a mineral owner's use of the surface when it held that "[t]he owner of the mineral underlying land possesses, *as incident to this ownership* , the right to use the surface in such manner and with such means *as would be fairly necessary for the enjoyment of the mineral estate* ." Syl. pt. 1, *870*id.* (emphasis added). The Court explained that

> [t]his rule is based upon the principle that, when a thing is granted, all the means to obtain it and all the fruits and effects of it are also granted. *The use of the surface here involved is not only a reasonable burden to the surface owner, but is fairly necessary in the development and operation of the coal* .

*Id.* at 309-10, 121 S.E. at 91 (emphasis added).

The standard for balancing the rights of surface owners and mineral owners in relation to implied uses of the surface estate was further clarified in *Buffalo Mining Co. v. Martin* , 165 W. Va. 10, 267 S.E.2d 721 (1980). The severance deed in *Buffalo Mining* had expressly granted the mineral owner certain uses of the surface, including the right to erect telephone and telegraph lines. The question before the Court was whether the deed granted an implied surface easement for an electric line to be used to ventilate a coal mine. The Court explained that

> where implied as opposed to express rights are sought, the test of what is reasonable and necessary becomes more exacting, since the mineral owner is seeking a right that he claims not by virtue of any express language in the mineral severance deed, but by necessary implication as a correlative to those rights expressed in the deed. In order for such a claim to be successful, it must be demonstrated not only that the right is reasonably necessary for the extraction of the mineral, but also that the right can be exercised without any substantial burden to the surface owner.

*Id.* at 18, 267 S.E.2d at 725-26. Accordingly, the Court held that

> [i]n order for a claim for an implied easement for surface rights in connection with mining activities to be successful, it must be demonstrated not only that the right is reasonably necessary for the extraction of the mineral, but also that the right can be exercised without any substantial burden to the surface owner.

Syl. pt. 3, *Buffalo Mining* , 165 W. Va. 10, 267 S.E.2d 721. Because the rights at issue in the case *sub judice* are implied, *Buffalo Mining* provides the proper test.

Applying the *Buffalo Mining* holding in the context of our review of whether summary judgment was proper in this case, we consider the existence of a genuine issue of material fact as to whether Antero's activities to develop its mineral estate were reasonably necessary, and whether they were carried out without substantial burden to Property Owners.

The first portion of the *Buffalo Mining* test is easily resolved. The MLP found that Property Owners did not offer evidence "to establish ... what is reasonable and necessary to develop the underlying minerals, other than self-serving assertions that Defendants' activities ... are excessive." Similarly, in this appeal, Property Owners have failed to develop an argument to show the existence of a genuine issue of material fact as to whether or not Antero's activities to develop its mineral estate are reasonably necessary. Thus, we need not address this portion of the *Buffalo Mining* test. *See**State Dep't of Health & Human Res. v. Robert Morris N* ., 195 W. Va. 759, 765, 466 S.E.2d 827, 833 (1995) ("A skeletal 'argument', really nothing more than an assertion, does not preserve a claim ...." (citation omitted)). *See also**Whiteman v. Chesapeake Appalachia, L.L.C.* , 729 F.3d 381, 391-92 (4th Cir. 2013) (recognizing that a plaintiff bears the burden of demonstrating what is reasonably necessary for the extraction of the mineral estate insofar as "no West Virginia case has treated a mineral estate owner's claim to 'reasonably necessary' use of the surface to extract minerals as an affirmative defense."). Instead, Property Owners focus on the manner in which the drilling activities were carried out, which goes to the second *Buffalo Mining* factor. Thus, we proceed to analyze that factor: the burden to the surface owner.

The concept of what amounts to a substantial burden to a surface owner does not lend itself to a precise definition. Instead it requires an examination of uses of the surface that have either been reserved by a severance deed or otherwise implied from the circumstances presented, and further examination of how that use of the surface is *871impacted by the mineral owner. *See, e.g.,*W. Va. Code § 22-6B-1(a)(1) (LexisNexis 2014) ("Exploration for and development of oil and gas reserves in this state must coexist with the use, agricultural or otherwise, of the surface of certain land and that each constitutes a right equal to the other."). As evidenced by our discussion above of the various cases involving strip and auger mining, a use of the surface without express authority that causes its destruction is typically considered a substantial burden on the surface owner as such mining is incompatible with any use of the surface.27 However, in cases involving a mineral owner's use of the surface that is compatible with the surface owner's use thereof, albeit inconvenient to the surface owner and even damaging to the surface estate, this Court, as well as federal courts interpreting West Virginia law, have generally found the use of the surface to be within the rights of the mineral owner. *See**Thornsbury v. Cabot Oil & Gas Corp* ., 231 W. Va. 676, 682, 749 S.E.2d 569, 575 (2013) ("A reasonable use of a surface estate by a mineral owner generally includes the construction of a road to access a drilling site."); *Buffalo Mining* , 165 W. Va. 10, 267 S.E.2d 721 (allowing mineral owner to construct an electric line across surface); *Adkins v. United Fuel Gas Co.* , 134 W. Va. 719, 724, 61 S.E.2d 633, 636 (1950) (concluding "[t]here was nothing done which was unnecessary or unreasonable in the construction of the road to bring machinery in to drill the defendant's gas well. Likewise the laying of the pipe line over the surface of the land is not disclosed to have been unnecessary. The construction of the open ditch for draining sand, water and other refuse from the well during the drilling thereof seems to have been an effort on the part of defendant to prevent the spreading of such sand, water and refuse over the adjacent surface of plaintiff's land, and, therefore, was a minimization of damages."; and further concluding "we can see no violation of the rights of plaintiff, nor can we perceive that defendant exceeded its rights in drilling a gas well on the 50-acre tract of land owned by plaintiff"); *Squires* , 95 W. Va. 307, 121 S.E. 90 (permitting the drilling of test holes and the transportation of equipment and workers across surface estate); Syl. pt. 2, *Coffindaffer v. Hope Nat. Gas Co* ., 74 W. Va. 107, 81 S.E. 966 (1914) ("A person, having the right to go upon another's land, 'to bore and develop said land for oil and gas with the necessary usual and convenient rights' therefor, has the right to build a road over the land when necessary to haul machinery and material to the place selected for drilling a well."); Syl. pt. 2, in part, *Porter v. Mack Mfg. Co* ., 65 W. Va. 636, 64 S.E. 853 (1909) ("The owner of the surface cannot obstruct the mineral owner from a use of the surface for a tramway or other means of transportation fairly useful and necessary."). *See also**Whiteman* , 729 F.3d at 394 (applying West Virginia law and finding that "creating drill waste pits was reasonably necessary for recovery of natural gas and did not impose a substantial burden on the ... surface property," where ten acres of 101 acre tract was rendered unusable); *Teel v. Chesapeake Appalachia, LLC* , 906 F. Supp. 2d 519 (N.D.W. Va. 2012) (concluding, based on West Virginia law, that waste pit constructed on surface estate was reasonable), *aff'd* , 542 F. App'x 255 (4th Cir. 2013).

Property Owners contend that the activities of Antero and Hall constitute a substantial burden on their right to use and enjoy their surface estates. In making this argument, Property Owners complain of a variety of annoyances, inconveniences, and discomforts arising from the off-site drilling activities of Antero and Hall, which were described in great detail by Property Owners, themselves. While Property Owners have thoroughly described the various burdens they have experienced,28 their complaints *872simply do not rise to the level of a substantial burden when compared to the cases noted above. From those cases, it is apparent that Antero and Hall would be within the proper exercise of their surface use rights to actually enter upon Property Owners' land to drill wells, construct roads, haul and use heavy machinery, lay pipelines, etc. Moreover, Property Owners' complaints arising from drilling that is taking place away from their properties (i.e., dust, traffic, lights, noise, and fumes) do not equal the types of burdens that were deemed to be compatible with the surface owners' use of the surface in the cases cited above. This is particularly so where Property Owners have claimed no damage to their surface estates caused by wells that are not located on their property. Property Owners' own expert indicated that the burden being imposed on Property Owners is not substantial when he concluded his report by stating, "each family with whom I met recounted exactly the types of impacts to their health, to their peace and serenity, and to the continued use, enjoyment and value of their property described in the growing literature *873and *to be expected from 'normal' shale gas operations* ." (Emphasis added).29

Antero, through its expert, presented evidence that the effects of horizontal drilling that is not carried out on Property Owners' land actually minimizes the disruption they would otherwise experience from multiple vertical wells constructed on their properties. This is so because significantly more vertical wells would be needed, and each well would require its own well pad, lease road, and pipeline, all of which would be constructed on Property Owners' land.30 In light of this evidence, it was incumbent upon Property Owners to present evidence that they were being substantially burdened.

> If the moving party makes a properly supported motion for summary judgment and can show by affirmative evidence that there is no genuine issue of a material fact, the burden of production shifts to the nonmoving party who must either (1) rehabilitate the evidence attacked by the moving party, (2) produce additional evidence showing the existence of a genuine issue for trial, or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f) of the West Virginia Rules of Civil Procedure.

Syl. pt. 3, *Williams v. Precision Coil, Inc* ., 194 W. Va. 52, 459 S.E.2d 329 (1995). Moreover, we have explained that "the party opposing summary judgment must satisfy the burden of proof by offering more than a mere 'scintilla of evidence,' and must produce evidence sufficient for a reasonable jury to find in a nonmoving party's favor." *Painter v. Peavy* , 192 W. Va. at 192-93, 451 S.E.2d at 758-59 (quoting *Anderson v. Liberty Lobby, Inc* ., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986) ). Property Owners failed to satisfy their obligation to present evidence that they were being substantially burdened.

In summary, Property Owners have failed to establish a genuine issue of material fact as to either *Buffalo Mining* factor. They have failed to present evidence that the activities of which they complain are not reasonably necessary for Antero and Hall to develop the Marcellus shale, and they also have failed to present evidence that they are being substantially burdened by these activities, which arise from the extraction of oil and gas from the Marcellus shale using wells that are not located on their properties, and that have caused no damage to their surface estates. Property Owners have simply failed to meet their burden to produce sufficient evidence in this case to overcome summary judgment. Accordingly, we affirm the MLP's grant of summary judgment in favor of Antero and Hall.31

**IV.**

**CONCLUSION**

Based upon the foregoing analysis, we affirm the MLP's order of January 11, 2017.

Affirmed.

JUSTICE ARMSTEAD AND JUSTICE HUTCHISON, deeming themselves disqualified, did not participate in the decision of this case.

JUDGE GREGORY L. HOWARD, JR., and JUDGE RUSSELL M. CLAWGES, JR., sitting by temporary assignment.

CHIEF JUSTICE WALKER concurs and reserves the right to file a concurring opinion.

JUSTICE WORKMAN AND JUDGE CLAWGES dissent and reserve the right to file dissenting opinions.

1

Although the surface owners originally asserted a nuisance claim, the MLP resolved the claim based upon property rights and declined to "address the issues to which common law private nuisance principles would be applied." Accordingly, no issues pertaining to private nuisance principles have been presented to this Court on appeal. *See**infra* note 15 and accompanying text.

2

The following Amici Curiae filed briefs in support of Antero and Hall: West Virginia Oil & Natural Gas Association; The Independent Oil & Gas Association of West Virginia, Inc.; West Virginia Chamber of Commerce; West Virginia Business and Industry Council; West Virginia Coal Association; Contractors Association of West Virginia; West Virginia Chapter of Associated Builders and Contractors, Inc.; West Virginia Manufacturers Association; and West Virginia Poultry Association. We acknowledge their participation and express our appreciation for their contributions to our consideration of this important case.

3

Antero is the successor in interest to Bluestone Energy Partners by merger and mesne conveyances.

4

The original petitioners, identified in the notice of appeal filed in this Court on February 10, 2017, were: Robert Andrews; Deborah Andrews; Rodney Ashcraft; Lindsey Feathers; Robert Golden; Daniel Kinney; Sharon Kinney; Charles A. Mazer; Douglas A. Mazer; Shawn A. Mazer; Susan J. Mazer; Gregg G. McWilliams; David Scott Nutt, Jr.; Robert Siders; and Charles T. Mazer.

After the instant appeal was filed, certain Petitioners filed a motion for voluntary dismissal of their appeal with prejudice, in which they sought a *partial* voluntary dismissal. The particular petitioners who filed the motion were: Lindsey Feathers; April Golden; Robert Golden; M. Golden; Daniel Kinney; Sharon Kinney; Douglas Mazer; Catherine Mazer; Shawn Mazer; Charles A. Mazer; the Estate of Charles T. Mazer; Susan Mazer; and David S. Nutt, Jr. Their motion was granted by order entered on June 19, 2017. Although Shawn Mazer was inadvertently omitted from this Court's order granting the partial voluntary dismissal, he was named on the motion and, therefore, was effectively dismissed from this appeal by the June 19, 2017 order. Accordingly, these former petitioners are no longer parties to this appeal.

The remaining petitioners, referred to herein as Property Owners, are: Robert L. Andrews, Deborah Andrews, Rodney Ashcraft, Greg G. McWilliams, and Robert Siders.

5

Antero also is entitled to use the surface property of Robert and Deborah Andrews in accordance with a right-of-way agreement executed between Mr. and Mrs. Andrews and Bluestone Energy Partners, Antero's predecessor in interest. The right-of-way agreement expressly grants the rights

> (1) to lay, construct, repair, maintain, operate, remove and replace pipelines for the transportation of oil, gas, water and other liquid or gaseous substances, (2) to install, operate, maintain, remove and replace such drips, valves, fittings, meters and other equipment and appurtenances, including cathodic protection apparatus, and (3) to install, construct, maintain, operate, remove and replace pole and wires for the transmission of electricity, all as from time to time may be deemed by Grantee to be necessary or convenient in connection with the construction, maintenance, operation and protection of the foregoing ....

6

These six pads are identified as the "Hustead Pad," the "Hill Pad," the "Johnson Pad," the "Mary Post Pad," the "Matthey Pad," and the "O. Rice Pad."

7

Property owners assert that these six pads result in twenty-four horizontal wells.

8

Antero denies ownership of the compressor station.

9

The MLP described horizontal drilling thusly:

> With the development of the Marcellus Shale, horizontal drilling is used to recover natural gas. Horizontal drilling requires a vertical well to be drilled, then the drill bit is turned and runs underground in a horizontal direction, extending anywhere from 2,000 to 10,000 feet away from the vertical well site. ... Several underground, horizontal wells are drilled away from the vertical well sites, much like a spider web design. Because of the horizontal drilling, more wells can be located on one well pad. Consequently, the well pads are usually larger, there are more hydro-fracturing zones, hydro-fracturing takes a longer period of time, and it takes more sand and water.

(Citations to the record omitted).

10

The action was assigned Case Number 13-C-434-3 in the Circuit Court of Harrison County.

11

In the negligence count of their complaint, Property Owners included claims related to property damage when they asserted that Antero and Hall owed Property Owners numerous duties of care that included duties to "not cause damage to land," and to "prevent releases of hazardous, toxic and/or radioactive substances into the air, land, and water." However, as noted below, in their response to the motions for summary judgment filed by Antero and Hall, Property Owners voluntarily withdrew these claims. Thus, by doing so, Property Owners withdrew their claims of property damage.

12

Unlike another horizontal drilling case that is also currently before this Court, *see**EQT Production Co. v. Crowder et al* ., No. 17-0968, (submitted March 12, 2019), Property Owners have asserted no claims of trespass in this litigation.

13

Property Owners' claims were designated as part of the first trial group to be resolved by the MLP. Apparently, the claims of over 200 plaintiffs remain pending before the MLP.

14

*See* note 24 *infra* .

15

Although Property Owners reference the term "nuisance" in two assignments of error that we decline to address, *see infra* notes 18 and 31, they have not raised as an assignment of error the MLP's failure to apply principles of nuisance law in reaching its summary judgment decision. As such, the application of nuisance law to this matter is not an issue that is properly before this Court on appeal. *See**Siddy W. v. Charles W* ., No. 17-0416, 2018 WL 679507, at *3 (W. Va. Feb. 2, 2018) (memorandum decision) ("[R]ulings of lower courts that are not appealed become the law of the case and are conclusive in subsequent proceedings in that case."); *Noland v. Virginia Ins. Reciprocal* , 224 W. Va. 372, 378, 686 S.E.2d 23, 29 (2009) ("As a consequence of [a party's] failure to challenge [a circuit court's] finding in this appeal, any error in that ruling has been waived for purposes of this appeal. ... More importantly, [w]e treat this ruling as the law of the case." (internal quotations and citations omitted)); *State v. LaRock* , 196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996) ("Although we liberally construe briefs in determining issues presented for review, issues which are not raised, and those mentioned only in passing but [which] are not supported with pertinent authority, are not considered on appeal."); *State Dep't of Health & Human Res. v. Robert Morris N.* , 195 W. Va. 759, 765, 466 S.E.2d 827, 833 (1995) ("[A] skeletal 'argument,' really nothing more than an assertion, does not preserve a claim[.]" (internal quotations and citations omitted)); Syl. pt. 6, *Addair v. Bryant* , 168 W. Va. 306, 284 S.E.2d 374 (1981) ("Assignments of error that are not argued in the brief on appeal may be deemed by this Court to be waived.").

16

Property Owners' motion states that it is made pursuant to Rule 52(b) of the West Virginia Rules of Civil Procedure. However, Rule 52(b) addresses findings by the court. Civil Procedure Rule 59(e) actually governs motions to alter or amend a judgment.

17

We disagree with Property Owners' characterization of the MLP order as it relates to this Court's decision in *Quintain Development, LLC v. Columbia Natural Resources, Inc.* , 210 W. Va. 128, 556 S.E.2d 95 (2001). The MLP did refer to *Quintain* , but it did so primarily in connection with its findings that Antero and Hall, in conducting their oil and gas extraction activities, were acting within the scope of various agreements (e.g., subsurface-use and right-of-way agreements) executed with several property owners who were plaintiffs below. Most of the property owners who were subject to such agreements have withdrawn from this appeal.

18

In addition, Property Owners argue that the owner of mineral rights underlying a particular property does not have the right to create a nuisance on the surface of that tract to develop minerals underlying another property. However, this issue was not addressed by the MLP and therefore is not proper for review. "This Court will not pass on a nonjurisdictional question which has not been decided by the trial court in the first instance." Syl. pt. 5, *State ex rel. State Farm Mut. Auto. Ins. v. Bedell* , 228 W. Va. 252, 719 S.E.2d 722 (2011) (quotations and citations omitted).

19

For example, Property Owners specifically reference "the conventionally drilled wells common in Harrison County [contemplated] when [their] predecessors executed the relevant deeds."

20

To the extent that neither deed at issue in this matter addresses whether new technology may be used to extract oil and gas, or describes specific burdens that may be placed upon the surface, the deeds are ambiguous. "As a general principle, ambiguities in a deed are to be clarified by resort to the intention of the parties ascertained from the deed itself, the circumstances surrounding its execution, as well as the subject matter and the parties' situation at that time." *Phillips v. Fox* , 193 W. Va. 657, 662, 458 S.E.2d 327, 332 (1995) (citing 23 Am. Jur. 2d *Deeds* § 221 (1983) ). *See also**Kell v. Appalachian Power Co* ., 170 W. Va. 14, 19, 289 S.E.2d 450, 456 (1982) ("In any construction of the language of a deed the intent of the parties is controlling." (footnote omitted)).

21

Although these cases did involve technology that did not exist at the time the relevant severance deeds were executed, that fact, standing alone, was not dispositive. To the contrary, under West Virginia law, the use of technological advancements not expressly contemplated in a severance deed have nevertheless been implied. In *Bassell v.**West Virginia Central Gas Co* ., 86 W. Va. 198, 103 S.E. 116 (1920), a lessor of an oil and gas lease sought to prevent the lessee from using compressors and pumps in the operation of gas wells. The lessor sought to prevent the use of compressors and pumps because, among other things, their use shortened the life of the wells drilled on the property and also lessened the number of wells needed to develop the gas, which, in turn, reduced the duration for which the lessor would receive annual rent for each well and reduced the number of wells for which such rent would be paid. Despite the fact that the lessor had no knowledge of the use of compressors and pumps in the development of gas and did not contemplate their use at the time the lease was executed, the Court nevertheless found in favor of the lessee based upon the principle that "[p]arties to contracts are held, in the absence of agreements to the contrary, to have contemplated modifications of their relations under their contracts, by the development of improvements and new methods in the progress of science and invention." *Id.* at 202, 103 S.E. at 117. *See also**Armstrong v. Maryland Coal Co* ., 67 W. Va. 589, 608, 69 S.E. 195, 203 (1910) ("[C]ounsel for both parties rely upon and quote from Barringer and Adams on Mines and Mining, pages 576, 577, as follows: 'The right to work the mine involves the right to penetrate the surface of the soil for the minerals, to remove them in the manner most advantageous to the mine owner, and to use such means and process in mining and removing them as may be necessary in the light of modern improvements in the arts and sciences. *The owner is not limited to such appliances as existed at the time of the grant; he may freely employ the means of invention* ; he may erect all adequate modern machinery for mining and draining.' ... This we believe to be the law." (emphasis added)).

Other courts have reached the same conclusion. *See**Ball v. Island Creek Coal Co* ., 722 F. Supp. 1370, 1373-74 (W.D. Va. 1989) ("In 1908, as today, the parties knew that 'knowledge [would] increase,' *see* Daniel 12:4, and that better mining techniques would become available. An owner of mineral rights should be allowed to take advantage of modern technology subject to the terms of the deed."); *Phipps v. Leftwich* , 216 Va. 706, 713, 222 S.E.2d 536, 541 (1976) (disallowing strip mining under relevant severance deed, but observing that the mineral owner "may, of course, take advantage of developments in the operation of underground mines which modern technology may make available").

22

*Brown v. Crozer Coal & Land Co* ., 144 W. Va. 296, 107 S.E.2d 777 (1959), involved three deeds:

> [O]ne made in 1904 granting mineral rights in "all minerals" with "all rights-of-way, of ingress and egress over, across and through [said land] for the purpose of removing the minerals &c. therefrom"; one made in 1905 granting "all the coal and other minerals and mineral substances ... together with the right to mine and remove said minerals in the most approved method"; and one made in 1907 reserving "all minerals ... together with all necessary and useful rights for the proper mining, pumping, transporting of said minerals[.]"

Syl. pt. 8, in part, *id* .

23

Obviously, in the cases discussed above there was no express grant of the right to strip mine in the operable severance deeds. As this Court has observed, however,

> [a] severance deed may ... *expressly* permit surface mining as a method of extracting underlying minerals. In *Roberts v. Powell* , 157 W. Va. 199, 203, 207 S.E.2d 123, 126 [ (1973) ], the grantors reserved " 'all coal *and* mineral underlying the above surface lands and sufficient rights of way to properly mine all of the said coal. The [grantee] shall be paid a reasonable damage for all surface openings and water sinkings that may occur by any mining operations[;]' " and further that " 'all developing of the unconveyed mineral rights ... shall never be construed to permit mining of the surface ... by such means ... known as "stripping" without compensation for the surface destroyed[.]' " (emphasis provided). *See**Tokas v. J.J. Arnold Co* ., 122 W. Va. 613, 11 S.E.2d 759 (1940) (landowner cannot prevent surface mining when stripping rights have been expressly and unequivocally excepted from a grant of the surface estate absent "statutory inhibition, fraud or other vitiating circumstances." Syl. pt. 1, in part, *Id* . ).

*Phillips* , 193 W. Va. at 664, 458 S.E.2d at 334.

24

During hearings before the MLP, counsel for Property Owners stated more than once that no claims for property damage were being asserted. For example, the following exchange was had during a hearing in June 2015:

> CHAIRMAN JUDGE MOATS: But you're not talking about soil contamination[?]

> MR. MAJESTRO: We have clients who are worried about what's in their soil, so they're getting things tested and figuring those issues out.

> CHAIRMAN JUDGE MOATS: But have you made claims for soil contamination?

> MR. MAJESTRO: Not apart from just "This is a nuisance." *They're not property damage* - -

> JUDGE HUMMEL: Is that based on the fracking or what?

> MR. MAJESTRO: The fracking chemicals. I mean, it's a - - it is not a - - *we don't have a claim for property damage in these Complaints. They're nuisance claims* .

(Emphasis added). At a subsequent hearing in February 2016, Property Owners' counsel again stated that no claims for property damage or personal injury were being asserted:

> JUDGE MOATS: Now, it's my understanding -- or our understanding from all of your briefs that nobody's claiming any property damage.

> Is that correct, Mr. Majestro?

> MR. MAJESTRO: Yes, Your Honor.

> JUDGE MOATS: Nobody's claiming any personal injury?

> MR. MAJESTRO: Yes, Your Honor.

25

The report of Antero's expert explained that "vertical well drilling requires a location, lease road, and pipeline for every single vertical well."

26

Other commentators have likewise concluded that horizontal drilling is more efficient and minimizes the disturbance to area surface estates. *See, e.g.,* Jason A. Proctor, *The Legality of Drilling Sideways: Horizontal Drilling and Its Future in West Virginia* , 115 W. Va. L. Rev. 491, 497-98 (2012) ("A single horizontal well, when located in a permeable reservoir such as the Marcellus Shale, can gather significantly more underground gas than a single vertical well in the same location. These higher production rates can equate to a higher return on investment for horizontal well projects than for vertical well projects when used in the proper manner. ... Additionally, numerous horizontal wells can be drilled using the same well pad on the surface. *This practice can significantly reduce surface disturbance because several horizontal wells in the same location can produce as much or more gas than numerous vertical wells scattered across a wider area.* " (footnotes omitted) (emphasis added)); *Why Multiple Horizontal Wells from centralized well pads should be used for the Marcellus Shale* , West Virginia Surface Owners' Rights Organization, *https://wvsoro.org/multiple-horizontal-wells-centralized-well-pads/* (last visited April 30, 2019) ("Not only is horizontal drilling of multiple Marcellus Shale gas wells from centralized well pads/sites better for surface owners, it is better for lots of other people and interests: • It is less risk to ground water if there are only 6 penetrations in one place from the 6 or 8 wells on the centralized pad instead of 24 all over the place. • It lessens the dangers of other environmental concerns because there is less forest fragmentation, less inevitable steam siltation from more access roads (and horizontal well access roads tend to be better constructed and maintained than vertical well access roads) etc. etc. • It is better for coal owners and coal companies and coal miners. This is because the horizontal well driller goes through the coal seams while the well bore is still being drilled vertically. So 6 or 8 well bores are drilled through one spot in the horizontal coal seam, rather than drilling 24 vertical bores drilled all through the coal seam. Since the well bores are drilled in one spot, there is less risk to the safety of miners of running into one as they mine through the coal seam. Because coal companies have to leave a circle of unmined coal around every gas well bore in order to protect miners, having 24 well bores spread out all through the coal seam would 'sterilize' large quantities of coal from being mined. • Investors in oil and gas drilling probably also are benefitted. Although the initial capital cost of a horizontal well is greater, they get out more gas faster and cheaper than vertical wells and so save production costs in the long run.").

27

*See* Syllabus, *Phillips* , 193 W. Va. 657, 458 S.E.2d 327 ("The grant of a right to surface mine may be express or implied. The right to surface mine will only be implied if it is demonstrated that, at the time the deed was executed, surface mining was a known and accepted common practice in the locality where the land is located; that it is reasonably necessary for the extraction of the mineral; and that it may be exercised without any substantial burden to the surface owner.").

28

The record contains deposition testimony by certain Property Owners wherein they describe the effects they have experienced from the oil and gas development activities of Antero and Hall. According to the Property Owners who remain parties to this appeal, they experienced the following types of disruptions:

Deborah Andrews complained of excessive traffic traveling at excessive speeds in general and past her home, which is right on the road. At times the traffic delayed her travel. She described one incident where she pulled off the road as far as she could due to an oncoming truck, and the truck hit the side view mirror and knocked it off of her car. (The responsible company, which she did not identify in her deposition, repaired the vehicle). In addition, Ms. Andrews stated that the noise, the sound of jake brakes, the fumes, and the lights from the traffic were disruptive and also interrupted her sleep. She said the traffic is not continuous, but when it is ongoing it is "very annoying" and affected her concentration. She further complained of dust resulting from the traffic that settled on her house, field, and car. Ms. Andrews additionally testified, however, that when she notified Antero about damage to her fence, the fence was repaired each time. Property Owners do not direct this Court to a separate account of the complaints of Robert Andrews in the record.

Rodney Ashcraft described excessive lights from trucks passing by his house on a public road at night that disturbed his sleep "some" by shining into his bedroom window, which has no blinds. These lights include truck headlights and flashing orange lights mounted on the trucks. He stated that he could not say if the trucks are operating more lights than necessary to negotiate the road safely. Mr. Ashcraft also complained of excessive dust resulting from truck traffic on the road when it is dry, and of diesel exhaust emanating from the trucks. Mr. Ashcraft additionally testified, however, that he has maintained a garden for his personal use for the last forty years and he has had no trouble gardening as a result of the activities of Antero and Hall.

Greg McWilliams talked about noise coming from the compressor station (Antero denies ownership of the compressor station) that caused him to spend less time outside in the summer, but he stated that the noise has been intermittent since drilling stopped and he has been able to enjoy more and more time outside. He also complained of trucks speeding on the road and excessive dust hanging in the air caused by the truck traffic on the gravel road that passes his home. He described the dust as bothersome when the weather was dry. Mr. McWilliams related that there was about a two-week period where construction was ongoing in a hollow across from his home and large stadium lights were set up and were run twenty-four hours per day. Large trucks were traveling in and out of the construction area at all hours during that two-week period as well. He also experienced lights during the construction of a nearby well pad that disrupted his sleep. Mr. McWilliams explained that "everything ebbed and flowed. But sometimes ... it seemed like things were going on for weeks and weeks at a time with nonstop traffic." He characterized the noise as being an issue, particularly the sounds created by jake brakes and other noises from the heavy trucks, and explained that during the drilling he was unable to open his windows due to the noise it created, but that since the drilling had stopped, he was keeping his windows open as much as possible. He also shared an incident where a diesel truck carrying gravel overturned in front of his driveway and a diesel odor lingered for a number of weeks thereafter.

Finally, Robert Siders related that his house is close to the road and the heavy equipment on the road caused a humming sound and he could feel vibrating (although he knew of no damage to his home from the vibration). He stated that the truck traffic was heavy and noisy and kept him up, and lights from the trucks and from a nearby well pad disturbed him "all hours of the night." He described dirt and mud that covered his car and caused him to have to frequently wash it. He also complained of an odor that lingered for a couple of days, but stated that, at the time of his deposition, he had not experienced the odor for about a year. He also said there were excessive diesel fumes and odors from the numerous trucks on the road. He mentioned continuously flashing lights on the "rig," but said that the rig was "down now." He also complained of a sound like a "roaring piece of equipment running," but explained that it was "not all the time." He also could see a flame and hear a hissing sound for long periods of time when there was "flaring" at the well, but the flaring also had ceased.

29

Property Owners also point out that Antero has been the subject of various Notices of Violations, Cessation Orders, and Orders for Compliance issued by the West Virginia Department of Environmental Protection, the United States Environmental Protection Agency, and the United States Army Corps of Engineers related to certain well pads at issue in this case. We have reviewed these documents, and we find they simply are not related to the types of property use claims that remain at issue in this appeal. Thus, they do not provide evidence to support the existence of a genuine issue of material fact regarding the alleged burden to Property Owners caused by Antero's and Hall's activities.

30

For additional commentators who have concluded that horizontal drilling minimizes the disruption to surface estates, see *supra* note 26.

31

Insofar as we resolve this matter based upon existing principles of law, we decline Property Owners' invitation to rule in their favor based upon public policy grounds. Such an argument is more properly addressed to our State Legislature. *See* Syl. pt. 2, in part, *Huffman v. Goals Coal Co* ., 223 W. Va. 724, 679 S.E.2d 323 (2009) ("It is the duty of the Legislature to consider facts, *establish policy, and embody that policy in legislation* . It is the duty of this Court to enforce legislation unless it runs afoul of the State or Federal *Constitutions* ." (emphasis added)).

WALKER, Chief Justice, concurring:

*874I concur with the majority's decision to affirm the Mass Litigation Panel's grant of summary judgment to Respondents Antero Resources Corporation and Hall Drilling, Inc. I write separately, though, to emphasize what the majority opinion does not do. The Court does not decide whether Respondents' activities on Petitioners' surface estates created a nuisance. And, the Court does not answer the broader question of whether the owner of mineral rights underlying Surface Estate A may or may not create a nuisance on Surface Estate A to develop the minerals below Surface Estate B. The Court does not decide those issues because this particular case did not present the opportunity to do so.

Regarding the first issue, the Mass Litigation Panel relied upon principles of contract and property law to grant summary judgment to Respondents. That left undecided the question of whether Respondents' activities on Petitioners' surface estates created nuisance conditions. The Panel recognized this distinction and its implication. In its final order granting summary judgment to Respondents, the Panel stated that because the summary judgment ruling turned on "Antero's contractual and property rights," the Panel did "not address the issues to which common law private nuisance principles would be applied" and so did not reach a "conclusion regarding whether Antero's actions or its employees' or contractors' actions would 'otherwise meet the legal definition of a nuisance.' "

The Court will not decide "a nonjurisdictional question which has not been decided by the trial court in the first instance."1 That is the case, here. Because the Panel decided Respondents' motions for summary judgment on principles of contract and property law, it did not decide whether Respondents' activities on Petitioners' surface estates created a nuisance, so the Court cannot, either.

Moreover, Petitioners did not challenge on appeal the Panel's decision to apply contract and property law, rather than principles of nuisance law, in deciding Respondents' motions for summary judgment. Instead, they argued that the Panel applied *the wrong* contract and property law. For example, in support of their first assignment of error,2 Petitioners argued that a severance deed does not empower a mineral rights holder to extract natural gas using technology that the parties to the deed did not contemplate. That is a contract and property law argument. And, to the extent Petitioners would have the Court extrapolate the argument that the Panel should have applied nuisance law, not contract and property law, from Petitioners' second assignment of error,3 the Court does not consider on appeal "issues which are not raised, [or] those mentioned only in passing but [that] are not supported with pertinent authority ...."4

Finally, the Court does not resolve the second issue5 because Petitioners did not *875timely raise it before the Panel. Two weeks after the Panel entered its final order granting Respondents' motions for summary judgment, Petitioners moved to alter or amend that order. In that motion, they presented the new legal argument that

> [Respondents] do not have the legal or contractual right to use the surface of [Petitioners'] properties, or to burden the same, through activities undertaken by [Respondents] to enjoy mineral estates beyond the boundaries of the leases encompassing [Petitioners'] properties. * * * Therefore, even if [Petitioners] are not able to bring nuisance claims related to [Respondents] activities in developing natural gas underlying their surface estate[s] [*sic* ], which Plaintiffs' [*sic* ] dispute, [Petitioners] should certainly be able to maintain the portions of their nuisance claims that related to [Respondents'] activities in developing natural gas underlying other properties, which comprise the vast majority of [Petitioners'] claims.

The Panel denied Petitioners' motion to alter or amend its final order because their new legal argument "could have been made by [Petitioners] during the extensive briefing and argument of dispositive motions, yet [Petitioners] chose not to make it. ... [A]rgument or evidence that could and should have been presented cannot be raised for the first time in a Rule 59(e) motion."6 For that reason, the Panel never ruled on the issue of whether the owner of minerals underlying Surface Estate A can create a nuisance on that surface to develop the minerals below Surface Estate B. Consequently, the Court cannot decide the question, either.7

I respectfully concur with the Court.

1

Jason A. Proctor, *The Legality of Drilling Sideways: Horizontal Drilling and Its Future in West Virginia* , 115 W. Va. L. Rev. 491, 500 (2012).

2

Petitioners form a portion of the "Cherry Camp Trial Group," the first trial group to be resolved by the MLP.

3

Recovering natural gas from the Marcellus Shale requires horizontal drilling and hydraulic fracturing (commonly called "fracking") technologies.

4

*See* Proctor, *The Legality of Drilling Sideways: Horizontal Drilling and Its Future in West Virginia* , 115 W. Va. L. Rev. at 494-95 ("The current Marcellus Shale gas 'play' appears to have begun in 2003, when Range Resources drilled a natural gas well in Washington County, Pennsylvania. ... By the end of 2007, 'more than 375 gas wells with suspected Marcellus intent had been permitted in Pennsylvania' alone. Following the initial discovery, interest in the Marcellus skyrocketed, and natural gas producers across the country began to acquire land and business interests in the region and to drill vertical and horizontal wells in order to evaluate the gas potential of the Marcellus.") (footnotes omitted).

5

The wording of these Acts appears to limit its relief to those surface owners upon whose surface actual, physical entry occurs: " 'Drilling operations' means the actual drilling or redrilling of a horizontal well commenced subsequent to the effective date of this article, and the related preparation of the drilling site and access road, which requires entry, upon the surface estate[.]" W. Va. Code § 22-6B-2(1). *See also*W. Va. Code § 22-7-1(d) ("It is the purpose of this article to provide constitutionally permissible protection and compensation to surface owners of lands on which oil and gas wells are drilled from the burden resulting from drilling operations[.]").

6

Contrary to the majority's assertions, this issue was clearly before this Court. In their assignment of error two, Petitioners state: "The [Mass Litigation] Panel erred in concluding that an owner of mineral rights underlying a particular property has the right to create a nuisance on the surface of that tract to develop minerals underlying another property."

7

*Hunt Oil Co. v. Kerbaugh* , 283 N.W.2d 131, 137 (N.D. 1979) ; *but see**Adkins v. United Fuel Gas Co.* , 134 W. Va. 719, 61 S.E.2d 633 (1950) (stating, in dicta, that issue of whether mineral owner has exceeded his implied rights is question for court).

WORKMAN, J., dissenting:

"Throughout West Virginia's history, [this] Court has attempted to balance the rights of surface owners entitled to the peaceful enjoyment of their land with the rights of mineral owners entitled to access and to produce their minerals underneath the surface."1 In the instant case, the majority failed to provide any guidance on striking a proper balance between these rights. I must dissent.

I. Background

This is an appeal from the Mass Litigation Panel's (the "MLP") award of summary judgment in favor of Respondents Antero Resources Corporation ("Antero") and Hall Drilling LLC ("Hall") (collectively "Respondents") dismissing Petitioners'2 hydraulic fracturing or "fracking"-based nuisance claims.3 In its summary judgment order, the MLP explained the distinction between horizontal and vertical drilling:

> 3. The activity at issue in this complaint is horizontal well drilling and hydro-fracturing as part of the development of the Marcellus Shale in West Virginia. Traditional oil and gas wells in West Virginia are vertical wells, with smaller drill rigs and fairly small well pads, located on one-third to one-half of an acre of land. A well road is built, the well pad is built, and the drill rig drills the vertical well several thousands of feet deep. After the well is drilled, a steel casing is put in the well, the drill rig leaves, and a hydro-fracturing *876company comes in to fracture the well. After the well is fractured and flow-back occurs, production starts and pipelines carry the natural gas from the well head to a larger transmission line for transport to market. ...

> 4. With the development of the Marcellus Shale, horizontal drilling is used to recover natural gas. Horizontal drilling requires a vertical well to be drilled, then the drill bit is turned and runs underground in a horizontal direction, extending anywhere from 2,000 to 10,000 feet away from the vertical well site. ... Several underground, horizontal wells are drilled away from the vertical well sites, much like a spider web design. Because of the horizontal drilling, more wells can be located on one well pad. Consequently, the well pads are usually larger, there are more hydro-fracturing zones, hydro-fracturing takes a longer period of time, and it takes more sand and water. ...

Fracking is a recently-emerging new technology4 and this Court has not had an opportunity to address balancing the rights of surface and mineral owners in this context.

> Marcellus production occurs primarily in five states: Pennsylvania, New York, Maryland, Ohio, and West Virginia. While the majority of gas production expansion thus far has taken place in Pennsylvania, West Virginia has also seen a significant increase in production. In August 2011, reports showed that "natural gas production in West Virginia and Pennsylvania now averages almost four billion cubic feet per day (Bcf/d), more than five times as much as the average from 2004 through 2008." These two states are now responsible for more than eighty-five percent of all natural gas production in the Northeast. Furthermore, production in West Virginia "has grown over [forty percent] since January 2010 and recently surpassed [one] Bcf/d." It appears that the Marcellus Shale will play an integral role in the West Virginia energy industry for years to come. This production boom would not have been possible without the help of a novel drilling technique-horizontal drilling.

Proctor, *The Legality of Drilling Sideways: Horizontal Drilling and Its Future in West Virginia* , 115 W. Va. L. Rev. at 496 (footnotes omitted).

The majority did only a cursory analysis of existing principles of law requiring balance between mineral owners versus surface owners; and failed to enunciate *any* legal guidance for such conflict in the context of fracking when the claims of more than *200 plaintiffs* remain pending before the MLP. Both the MLP and the majority are wrong in holding that a nuisance claim is not tenable under any set of facts when mineral owners act within their implied rights; and they are wrong in failing to establish any analytical framework for creating balance between the sets of competing rights.

For a century, the tenor of our mineral easement caselaw, in each temporal and technological ideation, has been that there must be a balance of the rights of surface owners and mineral owners. Rather than making any attempt to establish legal guidance for that goal in this new context, the majority endorses a gross inequity that effectively gives this new industrialization *carte blanche* to operate without any regard for the rights of those who live on the land.

II. Legislature Declares Surface and Mineral Owners Rights' are Equivalent

The Legislature has made it plain that the effect of this method of oil and gas production was not reasonably contemplated at the time of most original mineral severances. The Oil and Gas Production Damage Compensation Act ( W. Va. Code §§ 22-7-1 to - 8 ), the Natural Gas Horizontal Well Control Act ( *877W. Va. Code §§ 22-6A-1 to - 24 ), and the Oil and Gas Horizontal Well Production Damage Compensation Act ( W. Va. Code §§ 22-6B-1 to - 8 ) all express legislative findings that current oil and gas production methods were not reasonably contemplated at the time of the original severances. More importantly, the Legislature has recognized that our existing common law is not sufficiently accommodating of those developments, necessitating Legislative intervention by way of the above relief acts. Specifically, the Legislature has declared that

> ... [t]he advent and advancement of new and existing technologies and drilling practices have created the opportunity for the efficient development of natural gas contained in underground shales and other geologic formations;

> (2) These practices have resulted in a new type and scale of natural gas development that utilize horizontal drilling techniques, allow the development of multiple wells from a single surface location, and may involve fracturing processes that use and produce large amounts of water[ ] ....

> * * *

> (4) *Existing laws and regulations developed for conventional oil and gas operations do not adequately address these new technologies and practices* [.]

W. Va. Code § 22-6A-2(a) (1 through 4) (2014) (emphasis added).

While clearly enunciating a State policy in support of fracking, the Legislature has made clear that surface and mineral owners' rights are *equivalent* . Both the Oil and Gas Horizontal Well Production Damage Compensation Act and the Oil and Gas Production Damage Compensation Act provide that "[e]xploration for and development of oil and gas reserves in this state *must coexist with the use, agricultural or otherwise, of the surface of certain land and that each constitutes a right equal to the other.* " W. Va. Code § 22-6B-1(a)(1) (emphasis added); *see also*W. Va. Code § 22-7-1(a)(1) ("Exploration for and development of oil and gas reserves in this State must coexist with the use, agricultural or otherwise, of the surface of certain land and that each constitutes a right equal to the other.").5 Instead of acknowledging this unmistakable statement of public policy, the majority designates the rights of adjacent surface owners to the reasonable use of their surface estates as subservient to the unmitigated right of mineral owners or lessees to develop their minerals in the manner most convenient for them.

III. Nuisance Analysis

Initially, Petitioners filed claims alleging both nuisance and negligence. However, the property damage claims were withdrawn, leaving only the nuisance claims. Petitioners alleged that Respondents' fracking activities substantially impaired their quality of life, use, and enjoyment of their property including

> loud noises, concerns about well water safety, flooding due to diversion of water, loss of air quality, excessive dust, mud, bright lights, emissions diesel fumes, exhaust fumes, gas fumes and odors, excessive traffic delays/road blockages, rude, aggressive and generally dangerous drivers, speeding of very large trucks, vehicle damage due to poor road conditions, rude and interrogative flag persons, chemical spills in the streams and waters of Cherry Camp, vibrations/shaking, explosions/blasting, flaring, blow offs of condensate tanks, pipeline blow outs, an invasion of mostly out-of-state workers with little regard or respect for local residents, and trespassing.

As the majority points out, however, the MLP granted summary judgment based strictly on property and contractual rights, specifically holding that:

> *878In addition to the foregoing leases and severance deeds, Antero executed various other agreements with several Plaintiffs, or the owners of the properties on which Plaintiffs reside, entitling Antero to use Plaintiffs' properties in the course of its mineral development. These various agreements include right of way agreements, an oil and gas lease, road use agreements, surface use agreements, tank pad agreements, and pipeline easements.

Because the MLP specifically excluded any analysis of the issues in the context of nuisance law, the majority holds that the issue of whether there can be a private nuisance claim against the mineral owner rights is not proper for review.6 Instead, the majority holds that because Respondents hold an implied easement for use of the surface estates, they have the right "to the extent reasonable and necessary" to develop the mineral leasehold. While the reasonable and necessary standard is consistent with our law in this area, the majority ignores the fundamental premise that "[w]hether or not the use of the surface estate by the mineral estate owner is reasonably necessary is a question of fact for the trier of facts[,]"7 generally precluding summary judgment.

The majority hinges its analysis on two points: (1) because there is no physical damage to the property; and (2) because vertical wells would create an even greater physical intrusion into the surface estate, there is no substantial burden. In effect, the majority implicitly suggests that landowners who are negatively affected by the large-scale, around-the-clock industrialization are without recourse because individual vertical wells would, in their academic exercise, be even worse. This is completely disingenuous and constitutes classic "ducking" of the real issue. The majority's refusal to further develop our existing law to accommodate the need to balance the physical and atmospheric disturbances occasioned by fracking leaves West Virginia surface owners completely without recourse under any circumstances.

The majority should have recognized existing law on the issue presented as well as undertaken an analysis in this very new and different technological context. In his concurring opinion in *Robinson Township v. Commonwealth,*623 Pa. 564, 83 A.3d 901 (2013), Justice Baer offered an apt description of fracking activities:

> these industrial-like operations include blasting of rock and other material, noise from the running of diesel engines, sometimes nonstop for days, traffic from construction vehicles, tankers, and other heavy-duty machinery, the storage of hazardous materials, constant bright lighting at night, and the potential for life-and property-threatening explosions and gas well blowouts.

*Id.* at 1005 (Baer, J., concurring).

Even though the techniques in the instant case were found to be normal fracking operations-not outside the realm of what is reasonably necessary and therefore within the scope of the easements-a surface owner should still have the right to assert a nuisance cause of action if the scope or conduct of the operations is so abusive or unreasonable as to render the balance of rights completely out of kilter. The majority relies on *Quintain Development, LLC v. Columbia Natural Resources, Inc.* , 210 W. Va. 128, 556 S.E.2d 95 (2001), to dodge the real issue. But *Quintain* is patently distinguishable as it addressed a narrow and inapposite issue-a coal mining company's lawsuit to force the relocation of a natural gas pipeline so that coal could be removed by means of surface mining. Stretching *Quintain* beyond reasonable limits, the majority finds that the legal right to conduct mineral development operations necessarily and completely destroys *879any potential nuisance claim. This holding is contrary to black letter nuisance law.

Unlike a trespass, which is inherently unlawful, a private nuisance may flow from the consequences of an otherwise lawful act. *See e.g.* , *Baumann v. Snider,*243 Ga.App. 526, 532 S.E.2d 468, 472 (2000) ("The distinction between trespass and nuisance consists in the former being a direct infringement of one's right of property, while in the latter the infringement is the result of an act which is not wrongful in itself, but only in the consequences which may flow from it."); *Firth v. Scherzberg,*366 Pa. 443, 77 A.2d 443 (1951) (finding nighttime trucking operation constituted nuisance despite being permitted as a nonconforming use under ordinance). Consequently, the fact that Respondents are exercising valid leasehold rights should not obliterate Petitioners' potential nuisance claims. It is not the nature of the right; it is the scope, manner, and extent of exercising these rights which under some factual circumstances could constitute an actionable nuisance.

An actionable nuisance has been defined by this Court as follows:

> A private nuisance is a *substantial* and *unreasonable* interference with the private use and enjoyment of another's land.

> An interference with the private use and enjoyment of another's land is unreasonable when the gravity of the harm outweighs the social value of the activity alleged to cause the harm.

Syl. Pts. 1 and 2, *Hendricks v. Stalnaker* , 181 W. Va. 31, 380 S.E.2d 198 (1989) (emphasis added).

Once the MLP effectively determined that there could be no nuisance claim under any circumstances, any potential balancing of rights dissipated. The tenets of what constitutes a nuisance in surface/mineral rights together with whether there was a dispute of material fact should have formed the scope of the inquiry in this case by the MLP in ruling on the motion for summary judgment.

The majority errs in effectively upholding the MLP's legal conclusion that there can be no nuisance action under any set of facts in light of the severance deeds. Certainly, in an ordinary nuisance claim, a property owner is typically exercising his ownership rights, but neighboring property owners unduly and improperly disturbed by his actions are not without a remedy. Rather, they clearly have the remedy of a nuisance cause of action. However, in the mineral development context, by refusing to address this issue, the majority effectively holds that having an equivalent, valid legal right to conduct operations necessarily destroys any nuisance claim. This is not only inconsistent with the concept of nuisance and any sense of balance and fairness, but also contrary to the history and caselaw in the mineral/surface conflict context as well as statute. The Oil and Gas Production Damage Compensation Act provides that

> [n]othing in ... in this article shall be construed to diminish in any way the common law remedies, including damages, of a surface owner or any other person against the oil and gas developer for the unreasonable, negligent or otherwise wrongful exercise of the contractual right, whether express or implied, to use the surface of the land for the benefit of the developer's mineral interest.

W. Va. Code § 22-7-4(a). Undoubtedly,

> [n]uisance is the most common cause of action asserted against oil and gas operators related to hydraulic fracturing operations. For instance, in *Harris v. Devon Energy Production Co., L.P.* , the plaintiffs claimed that the defendant's drilling-related activities created a private nuisance on the plaintiffs' property. The plaintiffs claimed that the acts and omissions of the defendant resulted in the contamination of the groundwater under plaintiffs' land, which substantially interfered with plaintiffs' use and enjoyment of their groundwater for drinking, bathing, and washing. They also claimed that the contaminated well water offended plaintiffs' senses and made their enjoyment of their property uncomfortable and inconvenient. In *Fiorentino v. Cabot Oil & Gas Corp.* , the plaintiffs claimed that defendants created and maintained a continuing private nuisance by allowing gas wells to exist and operate in a dangerous and hazardous condition, *880allowing the spills and releases to spread to surrounding areas, including plaintiffs' properties and drinking water supplies, resulting in injuries to plaintiffs' health, well-being, and property.

Michael Goldman, *A Survey of Typical Claims and Key Defenses Asserted in Recent Hydraulic Fracturing Litigation* , 1 Tex. A&M L. Rev. 305, 310 (2013) (footnotes omitted).

In their depositions, Petitioners described how Respondents' activities constituted a nuisance, i.e., "a substantial and unreasonable interference with the private use and enjoyment" of their land. Syl. Pt. 1, in part, *Hendricks* , 181 W. Va. 31, 380 S.E.2d 198. Petitioners testified about nonstop noise from trucks driving past their homes all hours of the day and night so loud that they could not have conversations. The constant noise, vibrations, and truck traffic prevented Petitioners from sitting on their front porches on summer evenings and interfered with their sleep. Petitioners also testified about constant dust and odors from diesel trucks with the smell of diesel fumes so intense it caused headaches. Petitioners stated the vibrations from the trucks and operations were so damaging that their homes would rattle and shake like they were living on a volcano. Petitioners described truck lights shining so brightly they would light up their bedrooms even with the blinds shut.

Petitioners' experts, Drs. Cheremisinoff and Ingraffea, confirmed this testimony. The experts described how Respondents' fracking operations brought widescale industrialization within Petitioners' small community. These operations caused various negative consequences including contaminated air, increased ozone and smog, noise disturbances, light disturbances, and contaminated ground and surface water. Ultimately, Dr. Cheremisinoff opined that Respondents acted in a reckless and careless manner and with callous indifference toward their neighbors. He concluded that Respondents were not relying on reasonable and best industry practices and the well extraction sites and compressor station were creating significant levels of air pollution.

IV. Competing Property Rights Must be Balanced

A review of existing caselaw on surface owner versus mineral owner rights is informative. While surface rights have historically been considered subservient to mineral rights in that there must be disturbance of the surface in order to access the minerals, throughout our cases, whether in vertical drilling, coal mining, or strip mining, this Court-like most courts in the country-has recognized that the rights of each must be balanced. In syllabus point one of *Oresta v. Romano Brothers* , 137 W. Va. 633, 73 S.E.2d 622 (1952), we held: "A person in possession of land is required so to use it as not to injure the property of another person." As we explained in *Buffalo Mining Co. v. Martin* , 165 W. Va. 10, 267 S.E.2d 721 (1980),

> [o]ur past cases have demonstrated that any use of the surface by virtue of rights granted by a mining deed must be exercised reasonably so as not to unduly burden the surface owner's use. *Adkins v. United Fuel Gas Co.* , 134 W. Va. 719, 61 S.E.2d 633 (1950) ; *Porter v. Mack Manufacturing Co.* , 65 W. Va. 636, 64 S.E. 853 (1909) ; cf. *McKell v. Collins Colliery Co.* , 46 W. Va. 625, 33 S.E. 765 (1899).

> We conclude that where implied as opposed to express rights are sought, the test of what is reasonable and necessary becomes more exacting, since the mineral owner is seeking a right that he claims not by virtue of any express language in the mineral severance deed, but by necessary implication as a correlative to those rights expressed in the deed. In order for such a claim to be successful, it must be demonstrated not only that the right is reasonably necessary for the extraction of the mineral, but also that the right can be exercised without any substantial burden to the surface owner. *Porter v. Mack Manufacturing Co., supra* . This concept has been most clearly articulated in oil and gas cases. *See, e.g.,**Flying Diamond Corp. v. Rust* , 551 P.2d 509 (Utah 1976) (surface easement "consistent with allowing the fee owner the greatest possible use of his property");

> *881*Getty Oil Co. v. Jones* , 470 S.W.2d 618 (Tex. 1971) ; Annot., 53 A.L.R.3d 16 (1973).

*Buffalo Mining* , 165 W. Va. at 18, 267 S.E.2d at 725-26 (footnote omitted).

In recent years, courts have emphasized that mineral owner rights must be balanced against the rights of the surface owners. *See* , *e.g.* , *Faith United Methodist Church & Cemetery of Terra Alta v. Morgan* , 231 W. Va. 423, 440, 745 S.E.2d 461, 478 (2013) (recognizing surface owner has right to use surface for such ordinary uses as may be made thereof, with right to use as much of subsurface as may be necessary for customary and ordinary uses of surface, just as owner of subsurface estate has correlative right to use surface in order to develop subsurface rights).

Our precedent establishes that mineral and surface estates must exercise their respective rights with due regard each for the other's. This principle underlies the accommodation doctrine, which was developed by the Supreme Court of Texas in *Getty Oil Co. v. Jones* , 470 S.W.2d 618 (Tex. 1971).8 The accommodation doctrine has provided a sound and workable basis for resolving conflicts between various ownership interests. Although developed in the context of vertical drilling, this doctrine has broad application to the issue at hand.

> A definite trend toward conciliation of conflicts and accommodation of both estates is evident in our court decisions and in the conduct between the lessees and surface owners. ... This Court has led the way in working out accommodations which preserve unto the severed mineral owner or lessee a reasonable dominant easement for the production of his minerals while at the same time preserving a viable servient estate.

*Sun Oil Co. v. Whitaker* , 483 S.W.2d 808, 817 (Tex. 1972).

In some instances, the accommodation doctrine requires the owner of the mineral estate to make modifications of its proposed use of the surface to accommodate the surface estate owner, at least to the extent possible consistent with the right of the owner of the mineral estate to develop the minerals. *Gerrity Oil & Gas Corp. v. Magness* , 946 P.2d 913 (Colo. 1997) ; *see also**Coyote Lake Ranch, LLC v. City of Lubbock* , 498 S.W.3d 53, 60-61 (Tex. 2016) (finding accommodation doctrine applied to relationship between city, as owner of severed groundwater estate, and surface estate held by landowners; city was required to exercise its implied right to use of surface estate with due regard for landowners' rights). By way of analogy, although the methods necessary for fracking will create unavoidable disruption, annoyance, and inconvenience to surface owners who reside on the property, each side should be willing to seek accommodation to the degree reasonable with the other's interests.

Practically speaking, the accommodation doctrine requires the mineral owner to use available, non-interfering, and reasonable ways of producing the minerals which would permit the surface owner to continue his existing use of the surface;9 although by virtue of the very nature of fracking, those residing on the surface will have increased traffic, inconvenience, annoyance, dust, loud noise, and excessive light, the right of the mineral owner to enter and use the surface is not unfettered. Nothing in this opinion is intended to suggest that surface owners will have the kind of peaceful enjoyment of their property as they had prior to the fracking operation, just that neither side has the right to act in derogation of the rights of the other. Such accommodations, even if they make drilling operations less convenient or profitable, *882are not per se unreasonable. These determinations are highly fact-specific. As aptly explained in *Hunt Oil* ,

> [w]hat may be a reasonable use of the surface by the mineral lessee on a bald prairie used only for grazing by the servient surface owner could be unreasonable within an existing residential area of the City of Houston, or on the campus of the University of Texas, or in the middle of an irrigated farm. What we have said is that in determining the issue of whether a particular manner of use in the dominant estate is reasonable or unreasonable, we cannot ignore the condition of the surface itself and the uses then being made by the servient surface owner.

283 N.W.2d at 136.

Applying this principle to the instant case, the central issue is whether Respondents' fracking operations should be subject to reasonable modification in order not to constitute an actionable nuisance or, in the alternative, whether surface owners should be able to assert a cause of action for damages for nuisance. For instance, a fact finder may find that it is not reasonable for Respondents to run speeding trucks up and down rural roads twenty-four hours a day with jack brakes blaring. Rather, alternative methods such as specific times to run these trucks may be employed to accommodate the rights of the surface owners while still facilitating transport of the sand, water, and other materials and equipment needed for production. The cost of periodic amelioration of dust could be borne by drillers; and compliance with groundwater regulations are examples of possible accommodations so surface owners are not living in constant worry about their families' health.

This case also highlights the need for surface and mineral owners to consider negotiating a surface use agreement to avoid using litigation to define their respective rights and obligations. Mineral owners/operators are often willing to accept manageable delays in order to negotiate a use agreement with the surface owner. The parties should consider the following terms:

> (1) Timing and coordination of operations;

> (2) Predetermined, reserved, and platted future sites, access roads, and rights-of-way corridors;

> (3) Locations of any associated production equipment;

> (4) Coordination of future surface development;

> (5) Setback requirements (this may be required by regulations);

> (6) Noise mitigation (this may be required by regulations);

> (7) Visual aesthetics (this may be required by regulations);

> (8) Safety issues (this may be required by regulations);

> (9) Compensation for oil and gas directional and horizontal drilling costs from centralized drilling pads;

> (10) Timing of operations (i.e., based on planting, harvesting, or hunting seasons);

> (11) Use of surface or well water in exploration and production;

> (12) Disposal/discharge of produced water (this may be required by regulations);

> (13) Abandonment procedures following the completion of operations (this may be required by regulations); and

> (14) Reclamation (this may be required by regulations).[10]

If the conflicting owners fail to do so, then court-ordered mediation should center not just on monetary damages, if any, but on how both sides can work effectively together to accommodate their conflicting interests. Neither side will like this accommodation plan because drillers want maximum profit in the shortest time and attorneys for surface owners, while trying to protect the interests of their clients, want maximum damages. Sorting all this out can be a tedious process for courts, as well, and may even at times require additional proceedings before the MLP.11

*883Although Petitioners at this juncture have dropped their property claims, numerous environmental/groundwater citations already issued demonstrate the relentlessness of this heavy and untrammeled industrialization and the significant worry about potential health consequences to Petitioners and their families. The potential claims of groundwater contamination were identified by the Natural Resources Defense Council ("NRDC") in its recently released report concluding that fracking has dramatically stressed West Virginia's groundwater resources.12 NRDC states that chemical constituents used by well operators during drilling, fracking, or maintenance vary greatly but often include contaminates that pose serious threats to human health. *Id* .

> What about claims of flaming water? The theory is that fracturing releases methane gas, and the gas migrates to groundwater, finding its way into landowners' wells. The claim is that methane escapes through home faucets, creating fire hazards. Landowners complain that other chemicals, such as benzene, enter the water supply through ground spills and improper disposal techniques.

> Landowners claim that careless treatment of fracture fluids allows chemicals to enter aquifers, water wells and soil. They contend that fumes from diesel-powered engines cause them to inhale large quantities of nitrogen oxides, carbon monoxide and other chemicals. Also, fracturing and drilling create smog and dust[.13 ]

*See also* Kaoru Suzuki, *The Role of Nuisance in the Developing Common Law of Hydraulic Fracturing* , 41 B.C. Envtl. Aff. L. Rev. 265, 271-72 (2014) ("Numerous complaints from citizens near hydraulic fracturing wells, who alleged that methane gas and fracking fluid additives had contaminated their drinking water, spurred the EPA to reinvestigate. For example, citizens in the Marcellus Shale region, which spans Pennsylvania and upstate New York, have raised numerous concerns about the safety of drinking water from their underground water supply. Documentaries show tap-water discoloration, the emission of unnatural odors, and even flammable tap water in affected regions.") (footnotes omitted).

V. Conclusion

The majority's refusal to develop our law to provide a workable set of standards that balances the rights of surface and mineral owners is untenable. The MLP and the majority opinion of this Court effectively preclude any cause of action for nuisance while completely eviscerating existing legislative and caselaw. This Court should have enunciated the parameters of a nuisance claim in the fracking context; and we should have remanded the case with directions for the MLP to determine whether sufficient material issues of fact exist to permit a jury, under proper instruction of law, to decide whether Respondents' actions constitute a nuisance, and if so, what damages should be awarded. In cases still pending, there should be a court-directed process to mediate competing rights of surface/mineral owners.

Accordingly, I respectfully dissent. I am authorized to state that Judge Clawges joins in this dissent.

1

Syl. Pt. 1, in part, *Sands v. Sec. Tr. Co.* , 143 W. Va. 522, 102 S.E.2d 733 (1958).

2

Assignment of Error 1. The Panel erred in holding that a mineral severance deed grants the mineral owner the right to extract natural gas using methods uncontemplated when the deeds were executed, that are not necessary to the extraction of the minerals, and that substantially burden the surface owner.

3

Assignment of Error 2. The Panel erred in concluding that an owner of mineral rights underlying a particular property has the right to create a nuisance on the surface of that tract to develop minerals underlying another property.

4

*Bluestem Brands, Inc. v. Shade* , 239 W. Va. 694, 702 n.6, 805 S.E.2d 805, 813 n.6 (2017) ("Furthermore, '[a]lthough we liberally construe briefs in determining issues presented for review, issues which are not raised, and those mentioned only in passing but are not supported with pertinent authority, are not considered on appeal.' ") (quoting *State v. LaRock* , 196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996) ).

5

That is, whether the owner of mineral rights underlying Surface Estate A may or may not create a nuisance on Surface Estate A to develop the minerals below Surface Estate B.

6

*Mey v. Pep Boys-Manny, Moe & Jack* , 228 W. Va. 48, 56, 717 S.E.2d 235, 243 (2011) ("A motion under Rule 59(e) is not appropriate for presenting new legal arguments, factual contentions, or claims that could have previously been argued.").

7

*See Sands* at Syl. Pt. 1. *See also See**State ex rel. State Farm Mut. Auto. Ins. Co. v. Bedell* , 228 W. Va. 252, 264-65, 719 S.E.2d 722, 734-35 (2011) (explaining that the Court does not decide nonjurisdictional questions not first decided by the lower court because the facts underlying the issue are undeveloped; the Court lacks a ruling by the lower court and, hence, its wisdom; and to do so would be manifestly unfair to the opposing party) (citing *Whitlow v. Board of Educ. of Kanawha Cty* ., 190 W. Va. 223, 226, 438 S.E.2d 15, 18 (1993) ).

8

The *Getty* court found: "where there is an existing use by the surface owner which would otherwise be precluded or impaired, and where under the established practices in the industry there are alternatives available to the lessee whereby the minerals can be recovered, the rules of reasonable usage of the surface may require the adoption of an alternative by the lessee." *Id* . at 622.

9

*See* Tara Righetti, *Contracting for Sustainable Surface Management* , 71 Ark. L. Rev. 367 (2018) (examining accommodation doctrine as background for discussion of "surface use agreements" whereby surface users and mineral owners tailor agreements to suit anticipated use by mineral owner, existing and planned uses of surface owner, unique topographical and ecological conditions of surface parcel, and priorities of surface owner).

10

Kendor P. Jones, John F. Wellborn, Chelsey J. Russell, *Split Estates and Surface Access Issues* , Landman's Legal Handbook Ch. 9 (Rocky Mt. Min. L. Fdn., (5th ed. 2013)) at www.wsmtlaw.com/cms-assets/documents/129546-236263.00194839.pdf.

11

Rule 26.07 of the West Virginia Trial Court Rules provides:

> (b) If the [Mass Litigation] Panel requests the assignment of additional active or senior status circuit court judges to assist in resolving Mass Litigation or proceedings therein, the request and recommendation shall be filed with the Clerk of the Supreme Court of Appeals and sent to the Chief Justice. The order of assignment by the Chief Justice shall be filed with the Clerk and sent by the Clerk to the Panel Chair and to the clerk of the circuit court where the Mass Litigation is pending for service on all parties.

12

Natural Resource Defense Council, *West Virginia's Groundwater is not Adequately Protected from Underground Injection* (April 2019) at https://www.nrdc.org/resources/west-virginias-groundwater-not-adequately-protected-underground-injection.

13

Michael J. Mazzone, *Changing Times Bring Conflict With Surface Owners* , The American Oil & Gas Reporter (Dec. 2011) at https://www.aogr.com/web-exclusives/exclusive-story/changing-times-bring-conflict-with-surface-owners.