Chance v. BP Chemicals

Supreme Court of Ohio · 1996 · Property

PropertyTrespassSubsurface rightsreal propertytrespasssubsurface invasiondeepwell injectionindirect trespass

Facts

BP Chemicals operated three deep injection wells at its Lima facility under state and federal permits. The plaintiffs alleged that hazardous waste injectate had migrated laterally beneath their properties several miles away, damaging the substrata, making it unusable for purposes such as oil or gas extraction, and reducing property values. The extent and location of any migration were sharply disputed through competing expert models. By the time of verdict, the case had been narrowed to trespass, and the jury found for BP.

Issue

Whether the lateral migration of injectate from BP's permitted deepwell disposal operation into deep subsurface formations beneath neighboring properties constituted an actionable trespass. More specifically, the court had to decide whether landowners have absolute ownership of everything below the surface and whether proof of migration alone establishes trespass.

Rule

Subsurface property rights are not absolute. In the circumstances presented, a landowner's subsurface rights include the right to exclude invasions of the subsurface only when those invasions actually interfere with the landowner's reasonable and foreseeable use of the subsurface; in an indirect subsurface invasion case like this, the plaintiff must show physical damage or actual interference with such use.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Prairie Solvents LLC operates a state-permitted disposal well outside Tulsa, Oklahoma, injecting liquid industrial byproducts into a deep sandstone formation more than 2,700 feet below ground. Elena Torres owns farmland three miles away and sues for trespass after an expert says a diluted portion of the plume likely passed beneath her parcel, but she cannot identify any physical damage or any existing or planned subsurface project affected by it.

Should Elena prevail on her trespass claim?

Explanation. The majority held that subsurface rights are not absolute and that, in this kind of indirect subsurface invasion case, the plaintiff must show physical damage or actual interference with the owner's reasonable and foreseeable use of the subsurface. Proof that material merely migrated beneath the land is not enough.