The rule of capture or law of capture is common law from England, adopted by a number of U.S. jurisdictions, that establishes a rule of non-liability and ownership of captured natural resources including groundwater

Groundwater

Groundwater is water located beneath the ground surface in soil pore spaces and in the fractures of rock formations. A unit of rock or an unconsolidated deposit is called an aquifer when it can yield a usable quantity of water. The depth at which soil pore spaces or fractures and voids in rock...

, oil

Petroleum

Petroleum or crude oil is a naturally occurring, flammable liquid consisting of a complex mixture of hydrocarbons of various molecular weights and other liquid organic compounds, that are found in geologic formations beneath the Earth's surface. Petroleum is recovered mostly through oil drilling...

, gas

Natural gas

Natural gas is a naturally occurring gas mixture consisting primarily of methane, typically with 0–20% higher hydrocarbons . It is found associated with other hydrocarbon fuel, in coal beds, as methane clathrates, and is an important fuel source and a major feedstock for fertilizers.Most natural...

, and game animals. The general rule is that the first person to "capture" such a resource owns that resource. For example, a landowner who extracts or “captures” groundwater, oil, or gas from a well that bottoms within the subsurface of his land acquires absolute ownership of the substance, even if it is drained from the subsurface of another’s land. The landowner that captures the substance owes no duty of care to other landowners. For example, a water well owner may dry up wells owned by adjacent landowners without fear of liability, unless the groundwater was withdrawn for malicious purposes, the groundwater was not put to a beneficial use without waste, or (in Texas) "such conduct is a proximate cause of the subsidence of the land of others". A corollary of this rule is that a person who drills for groundwater, oil, or gas may not extract the substance from a well that bottoms within the subsurface estate of another by drilling on a slant.

Theories of ownership

When presented with oil and gas cases, early common law jurists were somewhat reluctant to recognize a corporeal possessory interest in substances they considered to be fugacious or “wild and migratory,” and therefore subject to loss by drainage. Among U.S. states, two different theories of ownership of oil and gas arose. Some states, such as Texas

Texas

Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...

, have adopted the “ownership-in-place” theory for oil and gas that a landowner owns a corporeal possessory interest (similar to a fee simple

Fee simple

In English law, a fee simple is an estate in land, a form of freehold ownership. It is the most common way that real estate is owned in common law countries, and is ordinarily the most complete ownership interest that can be had in real property short of allodial title, which is often reserved...

) in the substances beneath his land, but his ownership is a determinable fee subject to the rule of capture. Other states, like Oklahoma

Oklahoma

Oklahoma is a state located in the South Central region of the United States of America. With an estimated 3,751,351 residents as of the 2010 census and a land area of 68,667 square miles , Oklahoma is the 28th most populous and 20th-largest state...

, have adopted the “exclusive-right-to-take” theory that a landowner does not own the substances that underlie his land, but merely retains the exclusive right to capture the substances, a non-corporeal interest. The difference between the two theories is primarily of import in determining remedies

Legal remedy

A legal remedy is the means with which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes some other court order to impose its will....

.

Boundary determination

Subsurface ownership boundaries are the same as those upon the surface, projected downward to the center of the earth. This concept is based upon the Roman legal principle of property law

Property law

Property law is the area of law that governs the various forms of ownership in real property and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property...

, cuius est solum eius est usque ad coelum et ad inferos

Cuius est solum eius est usque ad coelum et ad inferos

Cuius est solum, eius est usque ad coelum et ad inferos often appearing in the shorter form Cuius est solum eius est usque ad coelum, omitting et ad inferos "and to hell", is a principle of property law, stating that property holders have rights not only to the plot...

(for whosoever owns the soil, it is theirs up to the sky and down to the depths).

Conservation acts

The rule of capture creates an incentive for an owner to drill as many wells as possible on his piece of land so as to extract the groundwater, oil, or gas before his neighbor. Very dense drilling can result in dissipation of the pressure within an aquifer or oil and gas reservoir, and therefore overdrafting of the aquifer or incomplete extraction of the substance. To mitigate this danger, many states have sought to supersede the rule of capture with conservation acts. Such acts enforce prorationing, pooling, and limits on density of drilling to avoid physical waste and ensure maximum ultimate recovery.

Further reading

• Lowe, et al., Cases and Materials on Oil and Gas Law, 4th Ed. West Group (2002).