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Click here for the full text of this decision FACTS:Grant Geophysical Inc., Grant Corp. and Millennium Seismic undertook a seismic survey in Zapata, Jim Hogg and Star Counties. The surveyors got permission to test from some but not all surface and mineral estate owners. In order not to trespass on the property of estate owners who had not given permission, the surveyors reconfigured the survey. The surveyors used three-dimensional seismic exploration to collect information, which sets up shot and receiver points on a three-dimensional grid that sends vibrations into the earth, instead of traditional two-dimensional, linear surveying. The surveyors claimed that they had never trespassed on the surface estate, nor had they intentionally collected unpermitted data from the subsurface of the Villarreal’s property. However, the surveyors acknowledged that though they never set up shot or receiver points on property for which they had no permission to be on, there were times when it would be unavoidable not to collect information from nearby tracts for which they did not have permission. Once the data was collected, it was possible to detect the data that came from the non-permitted tracts, and that data was deleted when it was processed and sold to third parties. Nonetheless, two third parties did receive the data from the non-permitted data by mistake. When that happened, the data was returned, and new data was given. Maria and Juan Villarreal owned mineral estates in Star County. They sued the surveyors for geophysical trespass after the survey was complete. The sought recovery in assumpsit in lieu of trespass and unjust enrichment. The trial court granted the surveyors’ motion for summary judgment. HOLDING:Affirmed. Kennedy v. Geophysical Co., 213 S.W.2d 707 (Tex.Civ.App. � Galveston 1948, writ ref’d n.r.e.), held that there was no trespass in a seismic testing circumstance because there was no physical trespass, and no injury to the land. The Kennedy case specifically excluded vibrations from the type of activity that could constitute physical trespass. Phillips Petroleum Co. v. Cowden, 241 F.2d 586 (5th Cir. 1957), allowed for recovery under assumpsit because Phillips conceded that it occupied a portion of the plaintiff’s land during a seismic survey. Recovery in assumpsit allowed for payment for the occupation, since there was not actual damage to the property; however, the court explained that the plaintiffs would not be able to recover if the defendants has merely occupied the land surrounding the plaintiff’s property. On appeal from remand, in Phillips Petroleum Co. v. Cowden, 256 F.2d 408 (5th Cir. 1958), the court again allowed the claim, but only because there had been a physical invasion of at least some of the surface estate. Here, the court finds, there was no physical trespass on the surface or subsurface of the Villareals’ property. The court adds, however, that “it appears that Texas law regarding geophysical trespass has not kept pace with technology, as an intermediate court we must follow established precedent.” The court rejects the Villareals’ claim for unjust enrichment, since the surveyors did not wrongfully secure a benefit or passively receive one that would be unconscionable to retain. Though it may not seem fair, the court adds, unjust enrichment is not a proper remedy. OPINION:Stone, J.; Lopez, C.J., Stone and Green, JJ.

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