Starrh and Starrh Cotton Growers v. Aera Energy LLC

In this interesting decision, the Court of Appeal reversed a trial court decision in favor of the plaintiff.  The facts demonstrated that subsurface trespass resulting from migration of waste water produced from oil production activities when naturally occurring water high in salts and other minerals pumped out of the deep ground in conjunction with the extracted oil was disposed of by discharge into unlined percolation ponds and then percolated down, moved into the underlying aquifers, and over time migrated into the aquifer underlying neighboring property, reducing the quality of the subsurface water, was a continuing trespass rather than a permanent nuisance, since abatement by means of a change in defendant’s water discharge practices was possible. The Jury’s consideration of the restoration damages merited an instruction, at a minimum, that if it determined damages should be awarded it must decide how much it would cost to restore the groundwater under the neighboring property to its original state; whether the restoration costs were reasonable in light of all the competing interests; that it could deny damages if it concluded the restoration costs would be unreasonable; and that diminution in value may be a legitimate measure of damages where restoration costs are unreasonable. Profits from oil production can be considered benefits obtained within meaning of statute providing for recovery of such benefits in an action for continuing trespass. CCP section 1021.9, the code section providing for the recovery of attorney fees in successful action for trespass to land under cultivation applies to subsurface trespass to a right that runs appurtenant to cultivated land.

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Starrh and Starrh Cotton Growers v. Aera Energy LLC