Anyone associated with oil and gas development has probably had a conversation about what constitutes a trespass, and whether there is an improper taking associated with drilling activities.
Several years ago, the discussion centered around an application of the “rule of capture.” In the most simplistic form possible, although a person traditionally owns the gas under his or her property, the rule of capture alters this rule by allowing you to capture gas that is brought to the surface—even if it did not originate under your property. Because oil and gas are free flowing, there is no way to really separate the underground pools. Arguably, this means that, if you drill a well on your own property, you can legally capture oil and gas from another person’s property. Traditionally, the exception to this rule was that there can be no physical trespass onto the neighboring land.
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