The Rule of Capture

a.       Oil and Gas

                                                              i.      A ought to have a remedy if B starts draining the pool. The approach of A seeking injunctive relief seems better because it, at the very least, affords both parties a reasonable opportunity to fairly extract the gas. The alternative is for one party to extract all the gas and surely a dispute will ensue.

                                                            ii.      The rule of capture will apply so long as B can extract gas on his own land. However, as soon as the gas travels to A’s land, B no longer has a chance to claim ownership to the gas. The gas belongs to whoever’s property it what extracted from, assuming the property owners extracted the gas.

                                                          iii.      Gas is treated as a “wild animal”, and once a wild animal is released, it belongs to know one. Therefore, the precious owner could not be found liable of damages committed by the precious owner.

b.      Water

                                                              i.      Groundwater- Initially, the rule of capture applied and the first to capture is the owner, so long as the aquifer is on your land. The Restatement (Second) added to the rule of capture that wasteful uses of water, if harming neighbors, were considered unreasonable and hence unlawful.

                                                            ii.      Surface Waters-

1.      Prior appropriation: the person who first appropriates (captures) the water and puts it to reasonable and beneficial use has a right superior to later appropriators.

2.      Riparian rights: each owner of land along a water source (riparian land) has a right to use the water, subject to the rights of other riparians.