The Private Pore Space: Condemnation for Subsurface Ways of Necessity

Abstract

Article 1, section 32 of the Wyoming Constitution sets forth a private right of eminent domain for ways of necessity. In the 125 years since its passage, section 32, the Wyoming Eminent Domain Act, and the private road statute have been used by private parties to obtain access to homesteads and oil wells, build ditches and flumes to divert irrigation water to arid parcels, and construct railway sidings and tramways through which coal could be transported from a mine to an interstate railway. To date however, the right of condemnation for ways of necessity has only been applied to establish access to and promote development of surface parcels by establishing means of surface use; it has not been used in the subsurface context.

This article examines whether energy developers can condemn subsurface ways of necessity under the Wyoming Eminent Domain Act. In so doing, it describes the nature of the property interest in the subsurface, and applies section 32 and the requirements of the Wyoming Eminent Domain Act to subsurface acquisitions. It then briefly examines challenges posed by calculations of due compensation for subsurface takings.

Keywords: subsurface, takings, pore space, eminent domain, ways of necessity, energy, oil and gas, Wyoming