W.Va. court asked to rule on gas drilling question where most of a landowner’s usable land would be taken by the gas drilling company

W.Va. court asked to rule on gas drilling question by Vicki Smith, April 3, 2013, Associated Press
A federal judge has asked the West Virginia Supreme Court to rule conclusively on whether state law allows a gas drilling company to use a Marion County farmer’s land to sink horizontal wells that would draw gas from neighboring tracts. The 2011 case that Richard Cain originally filed in Marion County Circuit Court “could have far-reaching legal and economic implications for the state of West Virginia,” U.S. District Judge Keeley wrote in a recent ruling. “Such important and unsettled issues of state law should … be decided by West Virginia’s highest court.” Cain says Exxon Mobil subsidiary XTO Energy plans to use the best of his land for as many as 18 well pads, leaving him with mostly steep, unusable hillsides. Cain concedes he doesn’t own the rights to oil, gas and minerals under his 105 acres. But he argues a 1907 deed at the center of his lawsuit never envisioned such extensive surface disruption. … XTO calls its plan to use 36 acres of Cain’s land “reasonably necessary” for exercising its rights. That, Keeley said, is the heart of the dispute. Both sides have cited situations that are “arguably analogous” to the one at hand, Keeley said. But neither has identified a “clear controlling West Virginia precedent to guide the court’s decision.” As Cain noted in one court filing, a recent issue of “West Virginia Law Review” was entirely devoted to the fact that past cases “do not provide enough clear answers for one to reliably predict” how the state Supreme Court would rule on a case like his. … Keeley has given the parties until April 29 to submit case summaries and proposed language for the question the court would answer. [Emphasis added]