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A Modern Look at the Law of Subsurface Trespass: Does It Need Review, Refinement, or Restatement?

Robert P. Thibault, M.A. Shelby, Christa Lee Rock, Nathan S. Bryant, Proceedings of 54th Annual Rocky Mountain Mineral Law Institute (2008)

The accelerating improvements and developments in technologies for drilling, testing, completing, and fracturing wells as well as acquiring, processing, and interpreting seismic data raise questions about the ability of the substantial body of existing law on [24-3] subsurface trespass to keep pace with these technological advances. While the underlying concepts of the law of subsurface trespass remain well-established, their application is increasingly unclear in the context of technological developments in hydraulic fracturing, often called fracing, directional and horizontal drilling, and geophysical exploration. These operational methods have been present, at least in name, throughout much of the history of the oil and gas industry. However, vast improvements in their application and accuracy and the increasing burdens of the competitive and regulatory environment require us to revisit and challenge old concepts.
Fracturing is an old technique: after all, explosive fracing was pioneered as early the 1860s, acid fracturing was popularized in the 1930s, and hydraulic fracturing has been commercially viable since the early 1950s. Yet, while the vast increase in the development of new “tight” fields along with improvements in the technologies for its application and testing have made fracturing widespread if not ubiquitous, the Texas Supreme Court is only now directly con