Oil and gas fracking can harm Pennsylvania residents. A lawsuit can fix the harms. Fracking can harm Pennsylvania real estate, causing the value of residents’ homes and property to decrease. Oil and gas fracking has also been claimed to cause physical harms to people in certain circumstances. While there are a number of possible claims that a Pennsylvania land owner may bring against an oil and gas company in this situation the most common and successful claim is for nuisance.
In Pennsylvania, one (in this case an offending gas company) is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either: (a) intentional and unreasonable, or (b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities. Restatement (Second) of Torts §822. The Restatement indicates that "any one of the types of conduct that serve in general as the bases for all tort liability may invade a person's private right of use or enjoyment of their land." Diess v. Pennsylvania Department of Transportation, 935 A.2d 895 (Pa. Cmwlth. 2007).The conduct of a person who intentionally invades such an interest must have been unreasonable under the circumstances for the interest owner to obtain relief, whereas, a person who unintentionally interferes with the use or enjoyment of another's land must have acted negligently, recklessly, or abnormally dangerously. Section 825 of the Restatement defines the term "intentional invasion" as follows: An invasion of another's interest in the use and enjoyment of land or an interference with the public right, is intentional if the actor: (a) acts for the purpose of causing it, or (b) knows that it is resulting or is substantially certain to result from his conduct. Diess v. Pa. DOT, 935 A.2d 895, 906, (Pa. Commw. Ct. 2007).
In evaluating a private nuisance claim, the key question is whether one person impaired another person's private right of use or enjoyment of their land. To that end, liability for nuisance applies only when there is significant harm, which is a harm of importance involving more than a slight inconvenience or petty annoyance. An invasion of another's interest in the use and enjoyment of land or an interference with the public right is intentional if the actor (a) acts for the purpose of causing it, or (b) knows that it is resulting or is substantially certain to result from his conduct. Hughes v. Emerald Mines Corp., 303 Pa. Super. 426, 429, 450 A.2d 1, 2, 1982 Pa. Super. LEXIS 3965, 1 (Pa. Super. Ct. 1982). An intentional invasion becomes unreasonable, if: (a) the gravity of the harm outweighs the utility of the actor's conduct, or (b) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible. Id. An intentional invasion of another's interest in the use and enjoyment of land is unreasonable if the harm resulting from the invasion is severe and greater than the other should be required to bear without compensation. Id.
The facts of the Hughes case exemplify how a landowner in Pennsylvania may successfully bring a nuisance suit against an oil and gas company for nuisance. Hughes concerned the complaint of landowners that a coal company operating on adjacent property caused the failure of one water-well and the pollution of a second well located on plaintiff-appellees' own land. A jury found for the plaintiffs in the amount of $ 32,500, basing their measure of damages on the testimony of a local real estate dealer that the property had been worth $ 42,500 while served by two wells of pure water and that without a source of potable water the salvage value of the land together with a mobile home located thereon would be $ 10,000.
The Plaintiffs in Hughes had bought the property in quesiton by a deed, pursuant to a mining rights clause set forth in an earlier deed conveying to a predecessor in title. Thereafter they built a house and ultimately drilled two wells to supply water. These wells worked perfectly and supplied potable water for approximately 25 years. The defendant mining company owned mining rights under the entire property. The Plaintiffs owned the surface rights.
In 1975 defendant began to expand its operations into a contiguous portion of land to Plaintiffs. The two wells then went dry. It was ultimately determined that the adjacent mining had caused damage to the wells. The plaintiffs filed suit premised on a private nuisance theory. Plaintiffs' expert witnesses estimated loss of value in the land without any source of usable water to be $ 32,000. The nuisance claim was successful and a jury rendered a verdict in favor of Plaintiffs in the amount of $32,000.
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