Articles Posted in Recent Cases

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Denbury Green Pipeline and Texas Rice Land Partners have now fought for ten years over Denbury’s right to condemn an easement across Texas Rice’s land for a CO2 pipeline. The fight is once again, for the third time, back before the Texas Supreme Court.

The fight began in 2007, when Texas Rice challenged Denbury’s right to condemn an easement for its pipeline. That case went to the Supreme Court, which issued a controversial decision holding that Denbury had not proven its right to condemn the easement.  Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline-Texas, LLC, 363 S.W.3d 192 (Tex. 2012). The case went back to the trial court and through the Beaumont Court of Appeals, and in January of this year, the Supreme Court issued its second opinion, Denbury Green Pipeline-Texas, LLC v. Texas Rice Land Partners, Ltd., 510 S.W.3d 909 (Tex. 2017), this time ruling that Denbury had proven its right to condemn as a matter of law.  See my discussion of these cases here. The case was remanded for trial on the amount of compensation to be awarded for the easement.

The most recent dispute began when Denbury sought access to its pipeline for inspection and Texas Rice refused. Texas Rice argued that Denbury had no right of access because it had been enjoined from taking the compensation funds deposited by Denbury into the court registry eight years earlier. Denbury then asked the trial court to allow it access to the pipeline, but the trial court sided with Texas Rice, agreeing that it had not complied with the requirements of condemnation statutes because Texas Rice was enjoined from withdrawing the condemnation award. Denbury then sought mandamus relief in the Beaumont Court of Appeals, which ruled that it did not have jurisdiction. Now Denbury has sought mandamus relief in the Texas Supreme Court, Case No. 17-0556.

 

 

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TexasBarToday_TopTen_Badge_SmallThe Texas Supreme Court has refused to allow DISH, a small town in Denton County north of Fort Worth, and several of its residents, to proceed with its suit against four companies who operate gas compressor stations near the town. The plaintiffs alleged that they were harmed by the noise, odors, light and chemicals from the compressors. The Court held that their claims were barred by limitations, reversing an opinion by the Amarillo Court of Appeals that would have allowed the case to proceed.

DISH caused quite a stir beginning in 2010, out of proportion to its size (it had a population of 201 in the 2010 census). Originally named Clark, the town changed its name to DISH as part of a deal with Dish Network in which all residents received free basic television service for ten years. Continue reading →

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In March, the Texas Supreme Court decided James H. Davis, Individually and d/b/a JD Minerals, and JDMI, LLC v. Mark Mueller, No. 16-0155. (Davis v. Mueller) The Court construed a mineral deed to JD Minerals covering interests in Harrison County. The deed described particular interests owned by the grantor and then added the following:

The “Lands” subject to this deed also include all strips, gores, roadways, water bottoms and other lands adjacent to or contiguous with the lands specifically described above and owned or claimed by Grantors. If the description above proves incorrect in any respect or does not include these adjacent or contiguous lands, Grantor shall, without additional consideration, execute, acknowledge, and deliver to Grant[ee], its successors and assigns, such instruments as are useful or necessary to correct the description and evidence such correction in the appropriate public records.  Grantor hereby conveys to Grantee all of the mineral, royalty, and overriding royalty interest owned by Grantor in Harrison County, whether or not same is herein above correctly described.

The particular tract descriptions were vague and not sufficient to satisfy the statute of frauds. So the issue was whether the deed conveyed anything. JD Minerals contended that the last sentence quoted above was sufficient to convey all interests owned by Grantor in Harrison County, even if all other descriptions in the deed were not sufficient under the Statute of Frauds. The Supreme Court agreed with JD Minerals. It agreed that the particular descriptions were too vague to convey anything, but it followed the Texas rule that a “blanket” conveyance of all of the grantor’s property a named county (or indeed in the State of Texas) is sufficient to convey all property owned by the grantor in the county. The fact that this sentence was in the same paragraph as the Mother Hubbard clause of the deed did not make it ambiguous.

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On April 28, the Texas Supreme Court issued its opinion in BP America Production Company v. Red Deer Resources, LLC, No. 15-0569, a unanimous opinion written by Justice Green. The case concerns operation of a shut-in royalty clause in a lease granted in 1962 covering 2,113 acres in Lipscomb and Hemphill Counties.  BP had one gas well on the lease that produced less than 10 mcf per day. In 2011, Red Deer obtained a top lease on the 2,113 acres. BP turned off the valve on the well on June 12, 201 and tendered a shut-in royalty payment to the lessors on June 13. The well last produced gas on June 4. In August 2012, Red Deer sued BP, alleging that the lease had terminated for lack of production in paying quantities prior the date the well was shut in.

The shut-in royalty clause reads:

Where gas from any well or wells capable of producing gas … is not sold or used during or after the primary term and this lease is not otherwise maintained in effect, lessee may pay or tender as shut-in royalty …, payable annually on or before the end of each twelve month period during which such gas is not sold or used and this lease is not otherwise maintained in force, and if such shut-in royalty is so paid or tendered and while lessee’s right to pay or tender same is accruing, it shall be considered that gas is being produced in paying quantities, and this lease shall remain in force during each twelve-month period for which shut-in royalty is so paid or tendered ….

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Last week the Texas Supreme Court issued its opinion in Lightning Oil Company v. Anadarko E&P Onshore, LLC, No. 15-0910, denying Lightning Oil’s trespass claim against Anadarko. Lightning Oil lost in the trial court, the San Antonio Court of Appeals, and now the Supreme Court.

To understand the case, it is helpful to look at the plat below (click to enlarge):

Lightning-oil-platLightning Oil owns an oil and gas lease on the knife-shaped tract. The surface estate of the tract is part of the Briscoe Ranch in Dimmit County, which includes lands to the north. To the south lies the Chaparral Wildlife Refuge, owned by the State and managed by Texas Parks & Wildlife. Anadarko obtained a lease from the State on the Refuge. That lease made it difficult to use the surface estate of the Refuge to drill wells, and Anadarko made an agreement with the Briscoe Ranch to allow Annadarko to put drilling pads on the Ranch (and on Lightning Oil’s oil and gas lease) to drill horizontal wells that would produce from the Refuge. Lightning Oil sued Anadarko claiming that its wells would trespass on Lightning’s mineral estate, even though no well perforations would be on Lightning Oil’s lease.

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In March 2016, a jury awarded two families $4.2 million against Cabot Oil & Gas for contaminating their drinking water. On Friday, the judge set aside the verdict and said the case will have to be retried.  The judge wrote that

(T)he weaknesses in the plaintiffs’ case and proof, coupled with serious and troubling irregularities in the testimony and presentation of the plaintiffs’ case – including repeated and regrettable missteps by counsel in the jury’s presence – combined so thoroughly to undermine faith in the jury’s verdict that it must be vacated and a new trial ordered.

The case was originally filed in 2009 by a large number of residents of the township of Dimock, Pennsylvania, alleging that Cabot was responsible for contamination of their groundwater, forcing them to truck water for drinking.  The plaintiffs claimed negligence, gross negligence, private nuisance, strict liability, breach of contract, fraudulent misrepresentation, and claims under the Pennsylvania Hazardous Sites Cleanup Act. Most plaintiffs settled with Cabot before trial, but two families, the Elys and Huberts, went to trial. The judge dismissed all of their claims except nuisance and excluded any claims for mental or emotional discomfort or the cost of replacing the water. Despite these setbacks, the jury awarded them $2.4 million on their nuisance claim.  Now the Elys and Huberts have to start over. A more complete report on the dispute and ruling can be found here.

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Last week the Texas Supreme Court granted petitions to hear appeals of two cases that could significantly affect the rights of Texas land and mineral owners: Atmos Energy Corp v. Town of DISH, 15-0613, and Lightning Oil Co. v. Anadarko E&P Onshore LLC, 15-0910. Last month, the court agreed to hear Sabine Oil & Gas Corporation’s appeal in Forest Oil Corp. v. El Rucio Land and Cattle Company, 14-0979, a case in which the court had previously denied the petition for review. Oral argument in the Forest Oil case is set for February 8. Dates for oral argument in Atmos v. DISH and Lightning Oil v. Anadarko have not yet been set.

In Atmos v. DISH, the town of DISH and residents of the town are seeking damages for injuries they claim are caused by noise and emissions from defendants’ gathering and compression facilities located in and near the town. The trial court dismissed plaintiffs’ claims, but the Amarillo Court of Appeals held that the plaintiffs had stated causes of action and were entitled to trial. For a more detailed description of the case, read my post here.  Among other arguments, the pipeline companies assert that plaintiffs’ claims are barred because their activites were authorized by governmental regulations and imposing liability for lawful activities would allow judicial regulation of activities sanctioned by statute and regulation. The Amarillo court disagreed: “Just because Appellees are operating their natural gas compression facilities within the applicable regulatory guidelines does not mean that Appellants have not suffered compensable injuries as a result of those operations.”

Sabine Oil & Gas makes a similar argument in Forest Oil v. El Rucio. (My prior posts on this case can be found here and here.) Sabine (formerly known as Forest Oil) argues that Jimmy McAllen’s $20 million arbitration award for damages caused by pollution of his ranch should be reversed because the case interferes with the Railroad Commission’s jurisdiction over oil field contamination. The RRC has jurisdiction over cleanup of environmental contamination related to oil and gas activities and has an open proceeding relating to Sabine’s efforts to remediate contamination on McAllen’s ranch. The Corpus Christi Court of Appeals held that Texas law expressly grants a landowner a private cause of action for damages caused by violation of Texas conservation laws and that McAllen’s claims should not be barred or stayed by the ongoing remediation activities supervised by the RRC. The court made reference to sections 85.321 and 85.322 of Texas Natural Resources Code, the first of which expressly grants a private cause of action for damages for violation of Texas conservation laws, and the second of which provides that nothing in the law governing Railroad Commission jurisdiction “shall impair or abridge or delay a cause of action for damages or other relief that an owner of land …. may have or assert against any party violating any rule or order of the commission or any judgment under this chapter.”

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Last week the Texas Supreme Court wrote the final chapter in Texas Rice Land Partners’ efforts to prevent Denbury Green Pipeline-Texas, LLC from condemning an easement across its land for a CO2 pipeline. The court held in Denbury Green Pipeline-Texas, LLC, v. Texas Rice Land Partners, Ltd., et al., No. 15-0225, Denbury opinion, that Denbury had shown as a matter of law that its line would serve a “public use.” (Our firm represented Texas Rice Land Partners in this appeal.)

This fight began in 2007, when Texas Rice Land Partners denied Denbury permission to enter its property to survey for a CO2 pipeline. Under the law as then understood, Denbury had obtained the requisite permit from the Texas Railroad Commission to construct its line and under that authority asserted that it had the right to condemn an easement for the line and therefore the right to survey Texas Rice Land’s property to construct the easement. Texas Rice Land denied Denbury’s right to survey, asserting that Denbury’s use of the line would be only for its private purposes and not for a “public use.” The trial court denied Texas Rice Land’s effort to stop the surveying; Denbury surveyed the easement and constructed its line across Texas Rice Land’s property. But Texas Rice Land appealed the trial court’s ruling. The Beaumont court of appeals affirmed the trial court but, in 2012 the Texas Supreme Court reversed and remanded the case.  Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline-Texas LLC (363 S.W.3d 192 (Tex. 2012) (Texas Rice I)

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When I last wrote about this case, I reported that the Texas Supreme Court had denied the petition for review of the Corpus Christi Court of Appeals’ decision affirming a $15 million arbitration award against Forest. On motion for rehearing, the Supreme Court granted the petition for review. The case is fully briefed, but no date for oral argument has yet been set. See my earlier posts on the case here and here.

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Two new opinions, one from the San Antonio Court of Appeals and one from the El Paso Court of Appeals, again tackle the task of construing mineral and royalty conveyances and reservations. A spate of these cases has arisen as a result of the recent shale plays, where lands never before productive have suddenly become valuable. As a result, muddy language in old deeds has to be clarified by the courts.

In Laborde Properties, L.P. v. U.S. Shale Energy II, LLC, the San Antonio Court of Appeals was required to construe the following mineral reservation in a 1951 deed:

There is reserved and excepted from this conveyance … an undivided one-half (1/2) interest in and to the Oil Royalty, Gas Royalty and Royalty in other Minerals in and under or that may be produced or mined from the above described premises, the same being equal to one-sixteenth (1/16) of the production.

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