Right-of-way agreement case goes before WV Supreme Court - WBOY.com: Clarksburg, Morgantown: News, Sports, Weather

Right-of-way agreement case goes before WV Supreme Court

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Did Cabot Oil & Gas Corporation act reasonably under a 1941 severance deed when it constructed an above-ground pipeline and an access road over a McDowell County property or was it violating a right-of-way agreement?

This was one of the main questions presented in the case of Arthur Thornsbury and Virginia Thornsbury against Cabot Oil & Gas Corporation.

The McDowell County case was appealed from a November 2011 order that granted summary judgment in favor of Cabot and dismissed the Thornsburys' claims with prejudice.

According to court briefs, the Thornsburys bought the property in 2001 for $4,350. Tug Fork Land Company owns the oil and gas and Cabot is the lessee of the minerals.  

The case goes back to a 1941 severance deed wherein the McDowell-Wyoming Land Company conveyed interest in the surface only, reserving for itself all minerals under the real estate, according to the circuit court order.  

The deed also provided that mineral owners could use the surface to exploit the reserved minerals, court documents state.

In 2006, a right-of-way agreement was executed and Cabot agreed to provide a gate across the access road and to stack timber 10 inches and larger. The Thornsburys said Cabot agreed to pay them $500 for a 200 foot access road.

An affidavit later was executed saying among other things, that the mineral owner and Cabot were allowed to go on the land to develop oil and gas, documents state.

The Thornsburys assert Cabot breached the right-of-way agreement, saying Cabot destroyed timber, constructed a 1,300-foot access road instead of a 200-foot access road and constructed an above-ground pipeline across a "significant portion" of the property.

In their brief to the state's highest court, the Thornsburys said the clause in the severance deed was unconscionable and that Cabot didn't offer anything to support that the clause preempted the right-of-way agreement.

Christopher Brinkley, who represented the Thornsburys, said in the Sept. 4 oral argument hearing that West Virginia has shown a trend not to honor such exculpatory clauses.

"The issue is whether West Virginia recognizes an exculpatory clause where a mineral owner can exercise any means to get the minerals, no matter what they do to the surface owner's property," Brinkley said.

Brinkley also argued the pipeline takes up a large part of the property that the Thornsburys wanted to use as an ATV trail.

Justice Allen Loughry asked what the right-of-way agreement did aside from allowing Cabot to go 200-feet on the property. Brinkley said the agreement needed to be replaced to match the facts of the case, saying Cabot had the right to come on the property, put in a well pad and put in a road to access it.

Cabot argued it had the right to develop minerals because the severance deed granted it property rights separate from the right-of-way, which the company says only applied to a 200-foot road.

Timothy Miller, who represented Cabot Oil, called the right-of-way agreement the "belt and suspenders" because there was a gap of land they weren't sure about. He said these agreements are intended to solve issues.  

Miller also said the right-of-way agreement could not alter the original severance deed because the Thornsburys are not the owners of the mineral rights.

In its brief to the state's highest court, Cabot said the trial court was right to find that common law claims for surface damage was waived by the previous owners.

Miller also argued the timber was not salvageable and that the only way to stack the timber would be to take a substantial area of the Thornsburys' property for a landing area.