WEST VIRGINIA RECORD

CLARKSBURG -- A Marion County man is suing two energy companies that, he says, plan to use his land to explore for and produce oil and gas from neighboring tracts.

Plaintiff Richard L. Cain filed his complaint on June 21 in Marion County Circuit Court. The case was moved to the U.S. District Court for the Northern District of West Virginia last month.

Cain is seeking both declaratory and injunctive relief against defendants XTO Energy Inc., a Delaware corporation with its principal place of business in Texas, and Waco Oil & Gas Co. Inc., a West Virginia corporation.

According to court documents, Cain seeks a temporary and permanent injunction enjoining the companies from entering the surface of his 100-plus acres "for any purpose relating to the exploration for and production of oil and gas" of neighboring tracts.

Cain also seeks a declaration that Waco does not have the right to lease or otherwise assign or convey the rights to use the surface of his land for exploring for or producing oil or gas from neighboring oil and gas tracts.

At the crux of Cain's case is his contention that the owners and lessees of the oil and gas under his land do not have the right to use the surface of it to drill horizontal wells to neighboring mineral tracts.

Waco contends it has been fraudulently joined as a defendant in the matter.

XTO admits it holds a lease with regard to the oil and gas within and underlying Cain's 105-acre tract; that it has obtained three permits to drill wells on the tract from a common site or well pad; that it has prepared the well pad for the three wells; that the three wells are currently under construction; and that the well pad will drain natural gas from within and underlying the tract as well as neighboring tracts.

However, the company denies that its actions are illegal and specifically denies that Waco was involved in obtaining the permits or drilling the wells.

"XTO affirmatively states that it has acted reasonably and has not acted in contravention of plaintiff's rights as a surface owner," the company wrote in its response to Cain's complaint.

Cain filed a motion to remand the case to state court Thursday, arguing that his complaint alleges only state law claims and that the federal court lacks jurisdiction.

His counsel also contends that XTO's claim of fraudulent joinder is "meritless."

"After resolving all questions of law and fact in Mr. Cain's favor, as fraudulent joinder analysis requires, there is more than a reasonable possibility that Waco will be held liable on the claims stated. Therefore, fraudulent joinder cannot be shown and original jurisdiction is absent," wrote Joseph M. Lovett of Lewisburg.

XTO's counsel includes Ramonda C. Lyons, Richard L. Gottlieb and Webster J. Arceneaux III of Charleston law firm Lewis Glasser Casey & Rollins PLLC. Waco is represented by Marc A. Monteleone, George A. Patterson and Andrew G. Fusco of Charleston firm Bowles Rice McDavid Graff & Love LLP.