H. B. 2621
(By Delegate Rowe)
[Introduced February 22, 1995; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section five, article seven, chapter
twenty-two of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to further amend said
article by adding thereto a new section, designated section
five-a; and to amend chapter thirty-six of said code by
adding thereto a new article, designated article two-a, all
relating to providing the surface owner with certain
notices; providing the surface owner with certain
protections; requiring notice to surface owner of intent to
drill; providing compensation to surface owner; providing
for restoration of surface when drilling complete; making surface estate and mineral estate equal in law; and
eliminating an implied easement for mineral owners.
Be it enacted by the Legislature of West Virginia:
That section five, article seven, chapter twenty-two of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that said article be amended
by adding thereto a new section, designated section five-a; and
that chapter thirty-six of said code be amended by adding thereto
a new article, designated article two-a, all to read as follows:
CHAPTER 22. ENVIRONMENTAL RESOURCES.
ARTICLE 7. OIL AND GAS PRODUCTION DAMAGE COMPENSATION.
§22-7-5. Notification of claim.
Any surface owner, to receive compensation under section
three of this article, shall notify the oil and gas developer of
the damages sustained by the person within two years after the
date that the oil and gas developer files notice that reclamation
is commencing under section thirty, article six of this chapter.
Such notice shall be given to surface owners prior to commencing
reclamation by registered or certified mail, return receipt
requested, and shall be complete upon mailing. A copy of the
same notice shall immediately be filed with the office of oil and gas by the operator. If more than three tenants in common or
other co-owners hold interests in such lands, the developer may
give such notice to the person described in the records of the
sheriff required to be maintained pursuant to section eight,
article one, chapter eleven-a of this code or publish in the
county in which the well is located or to be located a Class II
legal advertisement as described in section two, article three,
chapter fifty-nine of this code, containing such notice and
information as the director shall prescribe by rule.
§22-7-5a. Notice to surface landowner of intent to drill oil or
gas well; compensation for damages to surface;
restoration of surface.
(a) As used in this section:
(1) "Completion of the well" means completion of those
processes necessary before production occurs, including the
laying of flow lines and the construction of the tank battery.
If the well is not productive, the date of completion of the well
shall be the day it is plugged and abandoned;
(2) "Drilling operations" means the drilling, deepening or
conversion of a well for oil or gas production, core hole for oil
or gas purposes, or drill hole for a stratigraphic test for oil or gas purposes;
(3) "Entry" means the moving upon the surface of land with
equipment to commence drilling operations;
(4) "New well" means a well that is spudded after the first
day of July, one thousand nine hundred ninety-five, and does not
utilize any part of a well bore or drilling location that existed
prior to that date;
(5) "Operator" means the person, whether the owner or not,
who applies for or holds a permit for well work or who is named
as the principal on a bond for a permit for a well that was
issued by the department;
(6) "Person" means any natural person, corporation, firm,
partnership, venture, receiver, trustee, executor, administrator,
guardian, fiduciary, or other representative of any kind, and
includes any government or any political subdivision or agency
(7) "Production operation" means the operation of a well for
the production of oil or gas, including all acts, structure,
equipment and roadways necessary for the operation;
(8) "Surface owner" means the person in whose name the surface of the land on which drilling operations are contemplated
is assessed for purposes of taxes imposed according to the
records of the county assessor of the county where the land is
located as certified by the assessor.
(b) Notwithstanding other provisions of this article in
conflict, this section is applicable only for the drilling
operations of new wells except as provided in subsection (g) of
this section. This section does not apply for reworking
operations on a well. This section is not waiveable.
(c) (1) Prior to commencement of the drilling of a well, the
operator shall give written notice to the surface owner of the
operator's intent to commence drilling operations.
(2) The operator shall, for the purpose of giving notice,
secure from the assessor's office at any time prior to the giving
of the notice, a certification which identifies the person in
whose name the lands on which drilling operations are to be
commenced are assessed at the time the certification is made.
For identifying the surface owner for purpose of giving the
surface owner the notice required by this section the written
certification made by the assessor of the surface owner satisfied the requirements of this section.
(3) The notice required to be given by the operator to the
surface owner shall identify the following:
(A) The source of the operator's right of entry on the
surface for drilling operations and the date on or after which
drilling operations are expected to commence;
(B) The name, address and telephone number of the operator;
(C) An offer to discuss with the surface owner those matters
set forth in subsection (d) of this section prior to commencement
of drilling operations.
(4) If the surface owner elects to meet with the operator,
the operator shall meet at a mutually agreed time and place
within the limitations set forth herein. Failure of the surface
owner to contact the operator at least fifteen days after
receiving the notice shall be conclusively deemed a waiver of the
right to meet by the surface owner. The meeting shall be
scheduled between the hours of nine o'clock a.m. and nine o'clock
p.m. of the same day, and shall be prior to entry onto the
surface land for any purpose. Unless agreed to otherwise, the
meeting place shall be located within the county in which drilling operations are to be commenced where the operator or his
or her agent shall be available to discuss with the surface owner
or his or her agent those matters set forth in subsection (d) of
(5) The notice shall be given to the surface owner by
(A) Certified mail addressed to the surface owner at the
address shown in the certification obtained from the assessor,
which shall be postmarked at least thirty days prior to entering
onto the surface land for any purpose; or
(B) Personal delivery to the surface owner at least twenty
days prior to entering onto the surface land for any purpose.
(6) Notice to the surface owner as defined in this section
shall be deemed conclusive notice of rights under this section to
the record owners of all interest in the surface.
(d) The operator, or his agent shall, if the surface owner
accepts the offer to meet, be available at the time agreed, date
and place to discuss with the surface owner the following:
(1) Placement of roads to be constructed by the operator;
(2) Points of entry upon the surface for drilling operations;
(3) Construction and placement of pits and any surface or
stream discharges used for drilling operations;
(4) Restoration of fences to be cut in order to make entry
upon the surface for drilling operations;
(5) Use of water on the surface of the lands;
(6) Removal of trees and vegetation;
(7) Surface water drainage changes caused by drilling
(8) Location of well head;
(9) Location of pipeline;
(10) Location of permanent equipment such as storage tanks
and dryers; and
(11) The operators' exercise of other rights to use of the
(f) The surface owner will be entitled to damages as set
forth in article two, chapter twenty-two-b of this code.
(g) In conjunction with the plugging and abandonment of any
well or the reworking of any well, the operator shall restore the
surface and any improvements thereon to a condition as near as practicable to their condition prior to commencement of the work.
The surface owner and operator may waive this requirement in
writing, subject to the approval of the office of oil and gas
that the waiver is in accordance with its administrative
CHAPTER 36. ESTATES IN PROPERTY.
ARTICLE 2A. PRESERVATION OF SURFACE OWNERS' RIGHTS.
§36-2A-1. Findings, purpose and public policy.
The Legislature hereby makes the findings of fact regarding
the historical practice of holding the surface as the interior
estate and the mineral estate severed therefrom as the superior
(or dominant) estate:
(a) This holding has caused unnecessary and significant
disturbance of the surface lands and structures thereon,
including farms and residential homes throughout the state;
(b) Mineral owners not limited by countervailing surface
interests and were not limited by the right of the surface owner
to pursue contract damages or the ability of the surface owner to
pursue tortious damages in the excessive acts;
(c) This holding has caused pollution of the waters and
surface lands of the state;
(d) This holding has caused significant loss of subjacent
support, caving in of surface lands and settling of surface
(e) Encouraged bad public policy.
§36-2A-2. Estates equal.
From the effective date of this section the surface estate
of interest in any real property in the state shall be equal in
the law with every mineral estate underlying a surface interest
or estate to which the surface interest or estate is subject;
each constitutes an interest in land equal to the other.
§36-2A-3. Findings, purpose and public policy.
From the effective date of this section no easement on an
interest in surface real property by an interest in underlying
minerals is implied.
§36-2A-4. Unequal estates void.
Any grant or reservation in a conveyance of real property
which seeks to hold interest in the preservation of the
beneficial use of interests in the surface subservient is null
and void to the extent they are not equal with the nonsurface
§36-2A-5. Presumption of equal rights.
When the ownership of any interest in minerals in real
property is separated from ownership of any interest in the
surface, it is presumed that the intent of the parties and the
language of the instruments require an equal balance between the
interest of the surface interest owner and the interest of the
mineral interest owner.
§36-2A-6. Measure of damages.
(a) The measure of damages, for damages caused to the
surface estate by the holder of any mineral interests, shall be
the standard of negligence as in tortious acts and shall not be
the breech of contract standard of whether the acts causing
damage were necessary or unnecessary to the use and enjoyment of
the mineral estate.
(b) The Legislature declares that the public policy of the
state for compensation and damages to surface owners in the state
shall not be diminished by any provision in a deed, lease or
other conveyance of property in the state.
NOTE: The purpose of this bill is as follows: (1) Mandate
notice of commencement of reclamation activities for the purposes
of oil and gas production damage compensation; (2) require the oil and gas well driller to meet with the surface owner before
entering onto the surface owner's land to determine well
placement; (3) change the common law which presently makes the
mineral estate dominant over the surface estate in order to make
them equal; and(4) change the measure of damages for surface
damage from a contract measure of damage to a tort measure of
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§22-7-5a and §36-2A are new; therefore, strike-throughs and
underscoring have been omitted.