Rule of Capture

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, oil, gas, 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a water well owner may dry up wells owned by adjacent landowners without fear of liability, unless the groundwater was withdrawn for malicious purposes, the groundwater was not put to a beneficial use without waste, or (in Texas) "such conduct is a proximate cause of the subsidence of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.

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, have adopted the “ownership-in-place” theory for oil and gas that a landowner owns a corporeal possessory interest (similar to a fee simple) in the substances beneath his land, but his ownership is a determinable fee subject to the rule of capture. Other states, like Oklahoma, 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.

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, cuius est solum eius est usque ad coelum et ad inferos (for whosoever owns the soil, it is theirs up to the sky and down to the depths).

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