Actionable Trespass

"Because the issue had not been determined by the highest court of the state, the Court of Appeals ruled as it believed the Arkansas Supreme Court would rule if the matter were squarely presented to it. In the Court’s view, the Supreme Court of Arkansas would hold that the rule of capture did not apply, and that the defendants’ actions in forcibly removing valuable minerals from beneath Young’s land constituted an actionable trespass. First, the Court did not believe that the Arkansas Supreme Court would extend a rule developed in the field of oil and gas to the forced migration of minerals of different physical properties. The rule of capture had been applied, so far as the Court knew, to the escape, seepage, or drainage of “fugacious” minerals occurring as an inevitable result of tapping a common reservoir. The rule was adopted near the turn of the century primarily as a rule of necessity when courts concluded that the amount of oil and gas draining toward a production well from neighboring tracts was incapable of measurement. But Young did not claim that he was losing minerals due to seepage or drainage toward the defendants’ production wells. Rather, he asserted, and had established to the satisfaction of the District Court, that the brine solution under his land would not migrate to the defendants’ production wells but for the force exerted by the injection wells."