Abandoned Right of Way

[mudpie]

Hello all,

I have/had a ROW through my property to a gas well site. The well was abandoned according to the state DEP in 1986. Just recently a new company started working the well. Should the ROW associated with the original well also be abandoned and revert to the surface owner for non-use for 20+ years. The new company states that they have a ROW but cannot provide any deed to prove it.

[Mr. Knowitall]

You need to find out, first and foremost, whether or not the right-of-way is deeded. If so, you need to then figure out who owns it.

[LandSurveyor]

It all depends on your state.

Oil and gas rights can be separately deeded in some states. If yours have been deeded away years ago, you will need to find the deed and the current owner. It should be in the public record.

In most cases, the owner of the oil and gas rights can convey them or lease them just as any other real property. There is no right of way needed as there is usually a right of access over the entire parcel, just as the developer of the oil or gas rights sees fit.

If the rights were deeded away many years ago, the title search can be challenging. I know, as I have been involved in this work for a major natural gas producer.

If the oil and gas rights have been severed at some point from your property, it probably doesn't matter if a well was abandoned. There is still an owner of the rights and more modern drilling methods are putting some older properties back into production. And depending on your state, you might get a cut of the profits.

[mudpie]

My state has a 10 year rule. If the ROW has not been used for at least 10 years by way of the well being abandoned, then the ROW could be exhausted. Proved easily enough by the State's Oil and Gas Office which tracts well production.

[LandSurveyor]

What state?

[mudpie]

West Virginia

[LandSurveyor]

In West Virginia, once a driller has obtained a state permit, the driller does not need an easement or right of way to enter the property. They can enter in any way that would be considered "reasonable". Only the common law applies unless there are provisions or reservations in the original deed or subsequent leases.

I don't know if the original permit has expired. You can check with the state. But even if it has, the owner of the mineral rights or lessee can apply for a new permit at any time, for any new work they might contemplate. Their rights to the minerals don't expire unless they sell or lease them.

Sometimes they will attempt to contact you beforehand but they are not required to do so and your first indication may be a copy of the permit application in the mail, or surveyors at the site. I think you have about two weeks at that point to respond.

[mudpie]

The well in question is not on my property, but two adjacent tracts away. Neither the original lease, subsequent subdivision, nor my current deed convey or refer to a right of way. The lease is ambiguous.

When the original lease was signed, there was one tract of land. Now there are seven tracts. The well access road crosses three tracts.

The state oil and gas office reports this well as abandoned since 1986, but the operator is claiming otherwise. I informed the operator to provide a legal right of way, or proof of production to sustain the alleged right of way or contact the tract owner for which the well is located for access unless a new right of way and maintenance agreement is signed.

[LandSurveyor]

When you purchased your property, a title search would have revealed that you have no rights regarding the underlying minerals, and that whoever owns those rights has the right to enter and cross your property as seems most reasonable to him.

The implications of this in West Virginia are grim. It does not matter that the surface rights have been sold off to a variety of new owners. The underlying mineral rights are still one parcel as far as it's owner is concerned, and all of the original rights concerning access are still valid.

I don't think that I have been effective in conveying this message to you. Perhaps it seems illogical or unfair in some way. I think that the best thing to do is to refer you to an organization in West Virginia which can explain the situation, perhaps more credibly than I can:

http://www.wvsoro.org/

I think that this is your best course at this point.

[mudpie]

I agree with you.

My point is that the gas well is NOT on my property, but an adjacent tract. I can understand if the well was on my property and the operator needed access, but that is not the case. The operator can just as well cross the tract upon where the well lies.

That aside, my argument is that the well operator has not worked the well in 23 years until recently. A right of way- implied, by necessity, or conveyed, in West Virginia is extinguished after 10 years of non-use- evident by the lack of consistent production- therefore the operator should not assume they still have a right of way to their well. Whether or not they work the well is not my business, but the access through my tract is...

I will be setting fence posts this weekend and posting my property - a sure test of the law. The state inspector is also questioning the operator why they have not reported production for 23 years if they allege it is a working well.