First, a brief history lesson from David Upham, taken from a 1998 treatise he penned for the Foundation for Economic Education:

“(The Founders) viewed the right to property to be not only as important as other human rights, but in some respects as the most important human right. … (T)his most vulnerable of freedoms was also understood to be the best practical guarantee of the other freedoms; for the private ownership of property provided not only real power to the citizens, it also instilled in them that virtue of self-reliance and self-governance essential to a politically self-governing people.”

Now to the issue at hand:

Does the “rule of capture,” long applied to traditional drilling into pools of underground crude oil, apply to shale oil and gas obtained through hydraulic fracturing?

The Pennsylvania Supreme Court has been asked to take up just that question by Southwestern Energy Production Co.

As noted in an “At Large” posting three months ago (and I borrow liberally from that posting herein), it was in April that a two-judge panel of the Pennsylvania Superior Court, in what could be a landmark ruling should it be sustained, unplugged the long-standing “rule of capture” axiom, at least for fracking.

As CourthouseDirect.com details it, the rule of capture is rooted in English common law. “Under the law, the first person to ‘capture’ a certain resource has rightful ownership to it.”

“(W)hen oil or gas that was previously ‘roaming’ under the ground is captured, it becomes the property of the captor.”  And, “just because oil or gas is present under the ground of somebody’s property does not mean it’s his or her property,” the website notes.

But if he or she also owns the mineral rights to that property, it should be the property owners’ property, right?

Back to CourthouseDirect.com:

“For example, if a neighbor drills into his own land to obtain oil, and the oil comes into his well from a reservoir on your land, the oil becomes his property.”

Now, “that does not give him the right to drill on your land,” CourthouseDirect.com reminds, “but he has no liability if the oil his well produces came from your land.”

Now, under “rule of capture,” there is recourse – drill your own well to capture “your” oil and gas.

But in an interesting – some might call “novel”; others might call “nonsensical” – Pennsylvania case (Briggs v. Southwestern Energy) out of Susquehanna County — the Superior Court held that gas and oil trapped in shale rock does not naturally move from one place to another in a pool.

Without hydraulic fracturing, or fracking, to release it, the court held that the shale gas and oil would stay in place. The lawsuit alleges that the act of fracking on one property extended to the complainants property and, thus, was an act of “trespassing.” Others might call it theft.

Said the court: “In light of the distinctions between hydraulic fracturing and conventional drilling, we conclude that the rule of capture does not preclude liability for trespass due to hydraulic fracturing.”

Now, and for the sake of argument, but for a conventional driller entering a pool that migrates, that conventional oil pool would not migrate, correct? And does that not drive a truck through the Superior Court’s legal rationale?

So, in the least, is the Briggs family entitled to compensation for Southwestern Energy extracting its gas without a lease? Superior Court says that’s up to a lower court to decide. The Constitution and fairness should answer that question in the affirmative.

The court rejected Southwestern’s entreaty for a full, or en banc, court hearing. And that prompted the company to seek the Supreme Court hearing. There’s no indication when, or if, the state’s highest court will take up the case.

As Marcellus Drilling News sees it, the decision “could greatly restrict, even stop, Marcellus drilling in the Keystone State.” Perhaps.

Again borrowing from the April 18 “At Large” posting:

All this said, to a reasonable rule of law constructionist, “rule of capture” — no matter its English common law base, no matter its longevity (dating to the late 1800s) — indeed sounds a lot like a rationale, if not a license, to trespass, if not steal, and no matter if it’s “conventional” drilling or “unconventional” fracking (the latter of which has been around for multiple scores of years).

If you are the owner of a property, and if you own the mineral rights to the property you own, what “right” does any entity without your permission – that is, those who have not purchased your mineral rights — have to the mineral wealth of your land?

And that should matter not whether it is a conventional gas or oil well or fracked shale gas and oil wells. Given the high-tech methods that have made modern fracking the revolution it is, surely there is a way to take steps to not “trespass” onto unleased property – all the while protecting the rights of those who, by contract, hope to profit from shale oil and gas extraction.

If there’s no sure way to do that, those “trespassed” upon, in the least, should be compensated.

Given the shale gas and oil revolution, this matter very well could end up before the U.S. Supreme Court. We shall see just how settled the settled law of “rule of capture” is. Stare decisis, and all that.

But the bottom line should remain this:

Private property is sacrosanct and the foundation of our American republic. And, again, surely in this modern age, there is a way to balance the procurement of an abundant natural resource without violating one of the bedrock principles of our Founding.

But as this debate rolls on in the courts, we all should remember the words of one John Adams:

“The moment the idea is admitted into society, that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.”

Colin McNickle is a senior fellow and media specialist at the Allegheny Institute for Public Policy (cmcnickle@alleghenyinstitute.org).