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Can a Landowner Pursue a Nuisance Claim Against an Oil and Gas Company for its Activities?

By Paul R. Yagelski, Esq.

 

A landowner has leased the oil and gas underneath the landowner’s property.  Pursuant to the lease, the oil and gas company has the right to come onto the landowner’s land for the purpose of developing the oil and gas.  Can the landowner sue the oil and gas company on the grounds that its activities constitute a nuisance even though the oil and gas company has the right under its lease with the landowner to conduct drilling and other activities to develop the oil and gas?

The short answer is yes.  Under certain circumstances, a landowner who has leased the oil and gas rights may bring an action against the oil and gas company over its activities in developing the oil and gas on the grounds that its oil and gas activities constitute a private nuisance.

Under Pennsylvania law, a private nuisance may flow from the consequences of an otherwise lawful act.  Liberty Place Retail Assocs. L.P. v. Israelite Sch. of Universal Practical Knowledge, 102 A.3d 501, 508-509 (Pa. Super. 2014).  As such, lawful activities may be enjoined where they unreasonably interfere with another’s property rights.  Id at 509; see, e.g., Firth v. Scherzberg, 366 Pa. 443, 77 A.2d 443, 446-47 (1951) (finding a nighttime trucking operation constituted a nuisance despite being permitted as a nonconforming use under the ordinance); Clark v. Fritz, 2016 WL 2625235, at *6 (Pa. Super. May 6, 2016) (concluding that it did not matter whether the defendants complied with the standards established by local ordinances in operating their nuisance-causing furnace because “it is well-settled that a private nuisance often flows from the consequences of an otherwise lawful act”.  A defendant’s conduct could comply with county ordinances and nevertheless be found to constitute a private nuisance under the community standard).  See Kembel v. Schlegel, 329 Pa. Super. 159, 478 A.2d 11, 15 (1984) (a private nuisance inquiry is not limited to whether a defendant’s conduct violated an ordinance governing noise or like output levels; the question is whether the defendant’s conduct constituted a significant unreasonable invasion of the plaintiff’s use and enjoyment of her property).  Pennsylvania law concerning private nuisance has been applied to oil and gas activities.

In Tiongco v. Southwest Energy Production Company, 3:14-CV-1405, 2016 WL 6039130 (October 14, 2006 M.D. Pa.), an oil and gas lessor, Stephanie Tiongco, brought an action against her lessee, Southwest Energy Production Company (“SEPCO”), alleging that SEPCO’s drilling and gas exploration activities constituted a private nuisance.  Tiongco had entered into an oil and gas lease with SEPCO under which Tiongco would receive a bonus payment and royalties from SEPCO in exchange for allowing SEPCO to explore, develop, produce, and market oil and gas from the unit of which Tiongco’s property was a part.  Despite this, Tiongco asserted that Sepco’s drilling and gas exploration activities amounted to a non-trespassory invasion interfering with the use and enjoyment of her private property therefore constituting a private nuisance. 

Beginning in 2011, SEPCO engaged in drilling activities and operated several natural gas wells located less than a quarter of a mile from Tiongo’s home.  Tiongo alleged and testified in a deposition that the various drilling-related activities created “excessive noise, light, and vibrations” that interfered with the use and enjoyment of her private property.  Tiongo testified that the level of noise from these activities was so extreme that they would rise at times to the level of a “jet engine,” that construction lighting was placed near her home on the side of her bedroom, which illuminated her entire house “24/7” for a period of approximately eight weeks, and that the vibrations from the drilling activities would wake her up in the night and “shake the whole house.”  Additionally, Tiongco testified that SEPCO’s conduct created a “dirt and dust problem” that forced Tiongco to power wash her house four times.  Furthermore, due to the noise from SEPCO’s drilling activities, Tiongco testified that she was unable to continue her home gardening pursuit and unable to enjoy her back porch.  As a result of this activity, Tiongo testified that she was unable to sleep, required prescription Xanax, and her work suffered.  These conditions persisted at a high level of disruption for over one year, but then reduced to occasional truck access and light construction activity.

In reviewing Tiongco’s claim, the Court looked at Pennsylvania law on private nuisance.

Pennsylvania has adopted the Restatement (SECOND) of Torts approach for determining the existence of a private nuisance.  See Butts v. Sw. Energy Prod. Co., 2014 WL 3953155, at *3 (M.D. Pa. Aug. 12, 2014).  Under that approach:

One is subject to liability for a private nuisance, if, but only if, his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either:

a. intentional and unreasonable, or

b. unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.

Karbiak v. Russo, 450 Pa. Super. 471, 676 A.2d 270, 272 (1996) (quoting RESTATEMENT (SECOND) of TORTS § 822 (1977)).  An “invasion” is actionable under the doctrine of nuisance only if it causes “significant harm, of a kind that would be suffered by a normal person in the community or by property in normal condition and use for a normal purpose.”  Id. (quoting RESTATEMENT (SECOND) of TORTS § 821 F).  A “significant harm” must involve more than “slight inconvenience or petty annoyance,” and it must constitute a “real and appreciable interference with the plaintiff’s use or enjoyment of his land.”  Id.  (quoting RESTATEMENT (SECOND) of TORTS § 821 F cmt. c)  The standard for determining whether an alleged invasion is “significant” is the “standard of normal persons or property in the particular locality.  If normal persons living in the community would regard the invasion in question as definitely offensive, seriously annoying or intolerable, then the invasion is significant.”  Umpherd v. VP Auto Sales & Salvage, Inc., 2015 WL 6965725, at *8 (Pa. Super. June 24, 2015) (quoting RESTATEMENT (SECOND) of TORTS § 821F cmt.d).  It is for the trier to determine whether there was a significant invasion of a party’s enjoyment of her property, and, if such an invasion existed, whether the invasion was unreasonable.  Kembel v. Schlegel, 329 Pa. Super. 159, 478 A.2d 11, 15 (1984); see also Butts, 2014 WL 3953155, at *3.  In other words, under Pennsylvania law, courts apply the “community standard” to determine whether something constitutes a significant invasion that might give rise to a private nuisance – that is, whether the “normal persons living in the community would regard the invasion in question as definitely offensive, seriously annoying or intolerable . . . .“  Karpiak v. Russo, 450 Pa. Super. 471, 676 A.2d 270, 273 (1996).

In addition to showing that invasion produced significant harm, a private-nuisance claimant must also demonstrate that the invasion was effectuated by either intentional and unreasonable conduct, or unintentional conduct that is otherwise actionable under the rules controlling liability for negligence or recklessness, or for abnormally dangerous conditions or activities.  See Karpiak, 676 A.2d at 272.  A party commits an “intentional” invasion when he either “act[s] for the purpose of causing it or know[s] that it is resulting or substantially certain to result from his conduct.”  RESTATEMENT (SECOND) of TORTS § 828 cmt. c; see also McQuilken v. A&R Dev. Corp., 576 F. Supp. 1023, 1030 (E.D. Pa. 1983) (citing Burr v. Adam Eidemiller, Inc., 386 Pa. 416 126 A.2d 403 (1956).  A party generally possesses the requisite level of intent if he knows or is substantially certain “that the condition or activity is causing harm to another’s interest in the use and enjoyment of land.”  Milwaukee Metro. Sewerage Dist. v. City of Milwaukee, 277 Wis. 2d 635, 691 N.W. 2d 658, 672 (2005). 

When a Defendant begins a course of conduct without knowing that his conduct is invading another’s use and enjoyment of land, but is subsequently put on notice that such an invasion is resulting and does not abate his activities, further invasions may be considered “intentional.”  Smith v. Jersey Cent. Power & Light Co., 421 N.J. Super. 374, 24 A.3d 300, 309 (2011); see also Morgan v. Quailbrook Condo. Co., 704 P.2d 573, 577 (Utah 1985) (“To sustain a finding of an intentional tort under § 825, then, it is sufficient to demonstrate that the actor maintained the condition after he knew that it was causing an invasion of another’s interest in the use and enjoyment of land.”); RESTATEMENT (SECOND) of TORTS § 825 cmt. d (explaining that in cases involving continuing or recurrent invasions, the “first invasion resulting from the actor’s conduct may be intentional or unintentional, but when the conduct is continued after the actor knows that the invasion is resulting from it, further invasions are intentional”).

Generally, in order for there to be an actionable nuisance, the defendant’s conduct must be the natural and proximate cause of the inquiry.  See Bellflower v Pennise, 548 F.2d 776, 778 (8th Cir. 1977).  A defendant may be “subject to liability for a nuisance caused by an activity, not only when he carries on the activity but also when he participates to a substantial extent in carrying it on.”  RESTATEMENT (SECOND) of TORTS § 834; see Diess v. Pa. Dept. of Transp., 935 A.2d 895, 906 (Pa. Commwlth. Ct. 2007) (“In order to constitute the legal cause of an invasion of their interest, the [plaintiffs] must plead facts showing that [defendant’s] conduct was a substantial factor in causing harm to the [plaintiffs’] interests”.)

These legal benchmarks, which call upon the courts to assess whether a condition is a “slight inconvenience or petty annoyance,” or constitutes something that is “definitely offensive, seriously annoying or intolerable,” necessarily entail an assessment that involves the factual evaluation of the impact of a defendant’s actions on others nearby. 

Tiongco testified that construction lights were placed near her home on the side of her bedroom and ran twenty-four hours a day for approximately eight weeks.  She further testified that these lights would illuminate her entire home and prevented her from sleeping.  Additionally, plaintiff testified that the sounds emanating from the nearby drilling site were so extreme that they would at times rise to the level of a “jet engine.”  Due to the patently invasive nature of some of the uncontroverted conduct that plaintiff testified to, the Court found on SEPCO’s motion for summary judgment that there was a genuine issue of material fact concerning whether defendant, although not acting with a purpose to invade, nevertheless knew or was substantially certain that its conduct was in fact, significantly interfering with plaintiff’s use and enjoyment of her land.  It was ultimately for a jury to decide whether defendant acted with the reckless level of intent to be liable for an intentional private nuisance.

Accordingly, even though a landowner has leased the oil and gas rights, the landowner may have a cause of action in nuisance against the oil and gas company over its activities; however, a cause of action exists only if the nuisance causes significant harm.  That is if several persons living in the community could regard the nuisance in question as definitely offensive, seriously annoying or intolerable.  Accordingly, such things as annoyance at the traffic outside one’s house, Komcick v. Shell Energy Holdings GP, LLC, 2015 WL 1345235 (March 25, 2015 M.D. Pa), or mere roadside noise and dust, Karpiak v. Russo, 450 Pa. Super. 471, 676 A.2d 270 (1996), would not constitute significant harm in order to rise to the level of a private nuisance. The invasion must also have been caused by intentional and unreasonable conduct or unintentional conduct that would be actionable under the rules controlling liability for negligence or recklessness or for abnormally dangerous conditions or activities.  In addition, the defendant’s conduct must be the natural and proximate cause of the injury.

If an oil and gas company is engaging in activity that is causing you harm of a nature that normal persons living in your community would regard as definitely offensive, seriously annoying or intolerable, then you may have a cause of action for private nuisance against the oil and gas company.  If such is occurring, see an oil and gas attorney as you may have a claim against the oil and gas company.

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