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About a Marcellus Shale case that has nothing to do with fracking

10/15/2014 | Real Estate Blog

The Pennsylvania Supreme Court handed down a decision recently that addresses important and interesting property law issues. We have taken the long way around to get to this discussion — a friend would say the posts about Brandt v. U.S. were the Proust Route — but it does have to do with fundamental property rights. And, just to sweeten the pot, the case is about land resting on the Marcellus Shale.

The Commonwealth of Pennsylvania is blessed and cursed to sit on top of what calls a “super giant” gas field. A major portion of the state lies above trillions of cubic feet of natural gas. Where there is no shale, including Philadelphia, there is access to transportation. That gas field represents an enormous windfall for landowners who develop, sell or lease their share of the shale for production.

One of the things that make property law so complicated is the rather amorphous nature of property rights. Think about the cliché of a man being hauled off to jail. As the police slap handcuffs on him and drag him down the hall, he cries, “I know my rights!” He probably does know his rights — the right to an attorney, the right to remain silent, all the Miranda rights and even, perhaps, the right to a jury trial.

Now imagine the same guy in a property dispute — let’s say it’s over an easement that allows the neighbor to use our guy’s sidewalk to get to her house. The two are arguing, and he cries out, “I know my rights!” Chances are he does not know as much about his property rights as he does about his rights when charged with a crime.

Oh, he may know that he holds the title to his land, and he may know that gives him the right to improve the land. He may not know that the easement means he cannot build a fence that blocks her access to the sidewalk.

When you buy land, the law says that you own what is above it and what is below it. Cuius est solum ejus est usque ad coelum et ad inferos: “For whoever owns the soil, it is theirs up to heaven and down to hell.”

Well, nonnumquam — sometimes. We’ll explain more in our next post.

Source:, “Marcellus Shale gas boom sparks land disputes,” Andrew Maykuth, Sept. 1, 2014