Surface Rights vs Mineral Rights in WV

In West Virginia (WV) and nationwide, a property that contains minerals will often have two owners—one that owns the above-ground property or surface rights—and one that owns the below-the-surface property, or mineral rights. Often, these property rights conflict. The mineral owner may want to do work on the surface of the property that is necessary to extract minerals from the ground; at the same time, the surface owner may not want the mineral owner to do that work on his or her property. When considering surface rights vs mineral rights in WV, who wins?


What have the WV courts said about surface rights vs mineral rights?

When WV Mineral Rights Conflict with Surface Owner Interests

In the Buffalo Mining case, the Supreme Court of Appeals of WV created a test to deal with surface rights vs mineral rights properly. In that case, Buffalo Mining owned a coal mine beneath the surface of the ground. It sought to create an above-ground powerline that would ventilate an underground coal mine. However, the surface owner interfered with the building of the powerline. In determining whether Buffalo Mining, as mineral rights owner, had a right to build a powerline on the property, the Court laid out a two-prong test:

Image of an underground coal mine. Hendrickson & Long, PLLC’s mineral rights lawyers are dedicated to protecting the rights of WV companies involved in the energy industry and have a full understanding of the legal issues involved in surface rights vs mineral rights.

  • The proposed activity must be reasonably necessary; and
  • It must not cause a substantial burden to the surface owner.

The Court held that Buffalo Mining satisfied the first prong of the test because it was reasonably necessary to have ventilation under the ground to assist in mining. The ventilation was reasonably necessary to continue the coal mining process.  However, on the second test, the Court reasoned, based on the facts and circumstances, that building a powerline would cause substantial damage to the property.


What Does the Buffalo Mining Case Mean for Surface Rights vs Mineral Rights in WV


While the Buffalo Mining case can be viewed as protection for surface rights owners, it does not give definition to the “substantial burden” requirement. Other cases have used the Buffalo Mining test to determine how to split surface rights vs mineral rights, yet the extent of the burden remains unclear. In the 2013 Whiteman mineral rights case, a 10% damage to the property did not rise to the level of a substantial burden.


While the extent of the Buffalo Mining case remains to be seen, its implications as a surface rights protection case may have significant impact. At the moment, many companies are furthering their oil and natural gas exploration and operations. Places that 20 years ago had no energy industry are now burgeoning.

The increasing and growing fracking industry needs to consider the Buffalo Mining ruling before committing to West Virginia fracking fields. The extent of this surface rights vs mineral rights ruling may inhibit those companies’ abilities to extract minerals from the ground. This would hurt WV’s economy because of slower growth in the mining sector.

If you are in the energy business, you need to partner with a law firm that understands how to advocate for you in issues that involve surface rights vs mineral rights in WV. Contact the law firm of Hendrickson & Long, a WV-based firm dedicated to protecting the rights of those companies involved in the energy industry in WV, Kentucky (KY), and Pennsylvania (PA): 304-346-5500.