Keeley

CLARKSBURG - A Marion County man wants the West Virginia Supreme Court of Appeals to rule on a lawsuit he filed against an Exxon Mobil subsidiary over his natural gas rights, according to a filing in federal court last week.

Plaintiff Richard L. Cain filed his motion to certify a question of law to the state's high court in the U.S. District Court for the Northern District of West Virginia July 2.

Cain, who originally filed his lawsuit in Marion Circuit Court, claims that defendant XTO Energy Inc. is making "unauthorized and unlawful use" of his private property by using its surface to extract natural gas from neighboring mineral tracts.

In his suit, Cain admits to not owning the reserves under his 105 acres.

However, he contends a 1907 deed didn't anticipate such disruption to the property's surface.

XTO plans to use more than 30 acres.

In his four-page motion last week, Cain asks U.S. District Judge Irene Keeley to certify two questions to the state Supreme Court:

* "Is a person who obtains a benefit by an act of trespass or conversion, by comparable interference with other protected interests in tangible property, or in consequence of such an act by another, liable in restitution to the victim of the wrong?"

* And, "May a defendant be liable for interference with real property in an amount that exceed quantifiable injury to the property owner, on the principle that restitution is justified because the advantage acquired by the wrongdoer is one that should properly have been the subject of negotiation and payment?"

If Keeley does not certify the questions, Cain wants a judgment on his behalf and an order permanently barring XTO from trespassing.

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