H. B. 2690
(By Delegate Rowe)
[Introduced February 23, 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; to further amend said article by adding
thereto a new section, designated section nine; 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
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 by adding thereto a new section, designated
section nine; 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. The notice shall be given 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
§22-7-9. 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 thereof;
(7) "Production operation" means the operation of a well for
the production of oil or gas, including all acts, structures,
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 (f) of
this section. This section does not apply for reworking
operations on a well. This section may not be waived.
(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.
Notification of the surface owner identified in the written
certification satisfies 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 either:
(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 owners of record of all interest in the surface.
(d) The operator, or his or her agent shall, if the surface
owner accepts the offer to meet, be available at the agreed time,
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
(e) The surface owner is entitled to damages as set forth in
article two, chapter twenty-two-b of this code.
(f) 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 rules.
CHAPTER 36. ESTATES IN PROPERTY.
ARTICLE 2A. PRESERVATION OF SURFACE OWNERS' RIGHTS.
§36-2A-1. Findings, purpose and public policy.
The Legislature hereby makes these findings of fact regarding
the historical practice of holding the surface as the inferior
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 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) This holding has 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 and each constitutes an interest in land equal to the other.
§36-2A-3. Implied easements eliminated.
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 interests 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
(b) The Legislature declares that the public policy of the
state for compensation and damages to surface owners in the state
may 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 to mandate notice of
commencement of reclamation activities for the purposes of oil
and gas production damage compensation; to 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;
changing the common law that makes the mineral estate dominant
over the surface owner so they are equal; and changing the
measure of damages for surface damage from contract to tort
(1) To revise the common law which causes the surface estate
to be subservient to the mineral developer's estate to be changed
so that the estates are equal.
(2) To require communication between the mineral developer and the surface owner before survey crews, etc., come on to land
and start making a specific plan to development.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that
would be added.
§22-7-9 and §36-2A are new; therefore, strike-throughs and
underscoring have been omitted.