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I know that in PA, and I believe in most other states, surface rights are superceded by O&G (and coal for that matter) rights. If I was you, I'd try to reason with the lessee to see if they'd be willing to work around your concerns.
I've heard of landowners (i.e. hold surface rights but not O&G), ignorant of the laws that have been on the books for many decades, who make demands and threats when they don't have a legal leg to stand on. That certainly makes the O&G rights lessee far less likely to negotiate in a cooperative manner.
We can all argue about whether or not surface rights should be superceded by O&G, but the fact is that in PA they are and there is plenty of case law on the books to support it.
Actually, the laws on the books support obtaining fair compensation for surface owners. Take for example...if you own 50 acres and the well pad will take approximately 20 acres or 40% after access roads and the pad is placed, then how much land do you or could you sell should you desire to? What is an acre of land worth? They may try to give you 10K for a well pad, but over 5 years how much did they really give you. You can't market that acreage if you want to sell, can’t use the space for anything else, your still paying taxes on land that is not able to be used.
My concern now is that the leases all specify that the well pad payment go to the lessor who is not the surface owner in my case. The intent of that payment is to compensate the surface owner for the land used by the drilling operation and no longer available for use but the language of the lease does not always direct it to the landowner. It seems to me there is a flaw in the lease language and that it should specify the payment go to the surface owner who actually experiences the loss. With a lease contract, if it is not written in the contract, it is hard to enforce.
How did your friend's deal in WV work out?
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