Chance v. BP Chemicals, Inc.
77 Ohio St. 3d 17 (1996)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A landowner's subsurface property rights are not absolute and do not support a cause of action for trespass from deep subsurface injections unless there is proof of actual physical damage or interference with the reasonable and foreseeable use of the property.
Facts:
- A deepwell operator began injecting liquid industrial waste byproducts thousands of feet underground into porous sandstone formations.
- The operator's facility was located near properties owned by a group of landowners.
- The injected waste, known as injectate, migrated laterally from the injection point through the sandstone, mixing with naturally occurring brine.
- The landowners alleged that this migrating injectate had spread to be underneath their properties.
- The landowners did not present evidence of specific physical harm, such as contamination of drinking water or seismic activity, resulting from the injections.
- One landowner, a corporation, claimed it had abandoned plans to drill for natural gas on its property after learning about the deepwell waste disposal operation.
Procedural Posture:
- A group of property owners filed a class-action lawsuit against a deepwell operator in an Ohio trial court.
- The trial court granted summary judgment to the operator on claims for emotional distress and punitive damages.
- The trial court later granted a directed verdict for the operator on claims of nuisance, fraud, and ultrahazardous activity.
- The trespass claim proceeded to a jury, which returned a verdict in favor of the deepwell operator.
- The property owners, as appellants, appealed to the intermediate court of appeals.
- The court of appeals affirmed the trial court's judgment.
- The property owners then appealed to the Supreme Court of Ohio.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the deep subsurface migration of industrial waste, injected pursuant to a government permit, constitute an actionable trespass on an overlying property without proof of actual physical damage or interference with the owner's reasonable and foreseeable use of the subsurface?
Opinions:
Majority - Resnick, J.
No. The deep subsurface migration of industrial waste does not constitute an actionable trespass without proof of actual physical damage or interference with the reasonable and foreseeable use of the property. The ancient common law doctrine that a landowner owns everything above their property to the sky and below it to the center of the earth has no place in the modern world. Similar to limitations on air rights for aviation, subsurface rights must also have limitations. Therefore, to sustain a claim for an indirect subsurface trespass of this nature, the landowner must demonstrate that the invasion interferes with their reasonable and foreseeable use of the subsurface. The landowners' evidence of invasion was highly speculative, based on conflicting expert models, and they failed to prove any physical damage or actual interference with use, making their trespass claim unactionable.
Concurring in part and dissenting in part - Pfeifer, J.
No, but the court should have applied a different damages test. While concurring with the majority's overall conclusion on trespass, this opinion dissents from the majority's refusal to apply the measure of compensation from Columbia Gas Transm. Corp. v. Exclusive Natural Gas Storage Easement. The jury should have been permitted to consider whether the portion of the landowners' properties affected by the injection had any rental value for which they should be compensated, even in the absence of other physical damages.
Analysis:
This decision significantly curtails the traditional, absolute view of subsurface property rights, adapting common law trespass to the realities of modern industrial practices like deepwell injection. By requiring plaintiffs to prove actual harm or interference with reasonable use, the court established a high bar for recovery in cases of indirect, deep subsurface invasions. This ruling provides a degree of legal protection to permitted deepwell operators against claims based on purely conceptual or technical trespass, thereby influencing the legal landscape for both environmental litigation and industrial waste disposal.
Unlock the full brief for Chance v. BP Chemicals, Inc.