A Unifying Doctrine of Subsurface Property Rights

Abstract

This Article advances the “fair opportunity doctrine,” a theory of subsurface property rights that systematizes the case law in this confused area using formal legal reasoning. This theory offers a jurisprudential approach to analyzing private law that can then be applied to the field of subsurface property. This approach emphasizes the law’s role in providing ex ante guidance to members of a community in ordering their affairs and interactions with others and the importance of coherence in that function. On this basis, the “fair opportunity doctrine” improves substantially on the current state of subsurface property law and demonstrates the potential application of this methodological approach in many other areas of private law in general and natural resources property law in particular.

The “fair opportunity doctrine” follows from the basic, unifying principle of subsurface property law: each rights holder within a common subsurface resource is entitled to a co-equal, fair opportunity to use a proportional share of the resource for beneficial purposes. The doctrine holds that a subsurface rights holder is liable for the infringement of another’s rights only when three elements are satisfied: (1) an act by the defendant (2) causes a physical invasion of the plaintiff’s property boundaries and (3) damages the plaintiff either by (a) harming its ongoing subsurface activities or (b) depriving it of a fair opportunity to use the subsurface or produce its contents, unless the defendant has made a fair, reasonable, and nondiscriminatory offer to participate in the activity.

Keywords: jurisprudence, private law, legal theory, subsurface property, oil and gas, carbon dioxide, CCS