‘[t]respass to real property is an unauthorized entry upon the land of another, and may occur when one enters—or causes something to enter—another’s property.’ […] ‘[E]very unauthorized entry upon land of another is a trespass even if no damage is done or injury is slight.’ […] The owner of realty generally ‘has the right to exclude all others from use of the property.’ […] But ownership of property does not necessarily include the right to exclude every invasion or interference based on what might, at first blush, seem to be rights attached to the ownership. […] [‘]Wheeling an airplane across the surface of one’s property without permission is a trespass; flying the plane through the airspace two miles above the property is not.[’]
Lightning argued that it has rights in the minerals and also rights in the reservoir space that were being infringed upon. And the Court did not wholeheartedly disagree with Lightning. It recognized that “Anadarko’s drilling program will indisputably extract a portion of the subsurface roughly equivalent to the volume of the wellbore—i.e., the cuttings pushed to the surface during the drilling process—and that material will contain minerals.” And though the amount of minerals being extracted would be small, the Court agreed that “every unauthorized entry upon land of another is a trespass even if no damage is done or the injury is slight.” The Court also noted that while “the surface owner owns and controls the mass of earth undergirding the surface, those rights do not necessarily mean it is entitled to make physical intrusions into formations where minerals are located and remove some of the minerals—as is probable if a well is drilled into or through such formations.” The Court determined that “[w]hether the small amount of minerals lost through that process will support a trespass action must, in the end, be answered by balancing the interests involved[.]” They noted that “[i]n balancing the relevant interests of Lightning and Anadarko, [they] weigh ‘the interests of society and the interest of the oil and gas industry as a whole against the interest of the individual operator.’” Their conclusion was that “[b]alanced against the small loss of minerals a lessee such as Lightning will suffer, if drilling through the minerals is determined to be a non-actionable interference with its property rights, is the longstanding policy of this state to encourage maximum recovery of minerals and to minimize waste.” While noting that such off-lease surface locations did maximize recovery and minimize waste, they concluded “that individual interests in the oil and gas lost through being brought to the surface as part of drilling a well are outweighed by the interests of the industry as a whole and society in maximizing oil and gas recovery.” As for Lightning’s second argument, “that Anadarko’s proposed well sites, drilling activities, and underground well structures will interfere with both the surface and subsurface spaces necessary for it to exercise its right to develop the minerals in the future,” the Court reasoned that Lightning was speculating, and speculations was not enough to sustain a cause of action. Lightning did not point to anything that indicated the Texas Railroad Commission or application of the accommodation doctrine would not adequately protect its rights. Therefore, the Court laid to rest whether off-lease locations would be considered a trespass by declaring that there is no trespass action without showing a greater injury to the minerals that the minerals extracted by the drilling of the wellbore, or that the protections in place are not sufficient.