United States District Court, W.D. Kentucky, Owensboro Division
MEMORANDUM OPINION AND ORDER
N. Stivers, Judge
matter comes before the Court on Plaintiffs' Motion for
Partial Summary Judgment (DN 41), Defendant's Motion for
Partial Summary Judgment (DN 42), and Defendant's Motion
to Strike (DN 46). For the following reasons, Plaintiffs'
Motion for Partial Summary Judgment and Defendant's
Motion for Partial Summary Judgment are GRANTED, and
Defendant's Motion to Strike is DENIED.
SUMMARY OF FACTS AND CLAIMS
History of Property and Oil Drilling
lawsuit centers around a dispute between the surface owner
and mineral owner of real property that was formerly part of
the Camp Breckenridge military base located in Union County,
Kentucky. (Def.'s Mot. Partial Summ. J. Ex. 2, DN 42-3
[hereinafter 1965 Mineral Deed]; Def.'s Mot. Partial
Summ. J. Ex. 5, DN 42-6 [hereinafter 1966 Surface Deed]). The
mineral rights in the property were conveyed by warranty deed
in 1965 from the United States to United States Steel and
Carnegie Pension Fund. (1965 Mineral Deed). The mineral
rights passed through various successors in interest and were
eventually assigned to Defendant Countrymark Energy
Resources, LLC (“Defendant”), in 2010.
(Def.'s Mot. Partial Summ. J. Ex. 13, DN 42-14). The
surface estate was conveyed by warranty deed in 1966 from the
United States to Plaintiff Edmund Bickett
(“Bickett”), his brother James C. Bickett, and
their wives. (1966 Surface Deed). Language in the deed
reserved the following rights for the mineral holders:
1. Rights of the owner or owners of minerals and mineral
rights, including the United States of America, to such
use of the surface areas of the property conveyed hereby
which is reasonably necessary to prospect, explore,
mine, operate, produce, store and remove minerals, provided,
however, that the owner or owners of the mineral rights shall
be liable to the owner or owners of the surface area for
actual damages caused thereby to the surface, improvements,
livestock and growing crops. This provision shall not be in
derogation of any other rights of the owners of minerals and
the surface under the laws of the State of Kentucky. Nothing
herein shall constitute or be construed as a waiver of the
sovereign immunity and power of the United States of America
as the owner of the reserved coal and mining rights in and
under the property hereby conveyed.
2. Rights of the owners of minerals and mineral rights,
including the United States of America, and surface property
owners to the non-exclusive use of existing roads within the
confines of Camp Breckinridge Reservation for the purpose of
ingress and egress. Reference herein to the various roads
within the confines of Camp Breckinridge Reservation is based
on a map heretofore filed for record on March 18, 1966, in
the records of the Union County Court Clerk's Office in
Deed Book 182, page 1, . . . . Said map is incorporated
herein by reference as if fully copied herein.
3. Any and all existing reservations, easement, etc.,
recorded or unrecorded, or public highways, roads, railroads,
pipelines, drainage, sewer lines, water lines, telephone and
telegraph lines, and public utilities, if any. (1966 Surface
Deed 7-8). Eventually, two tracts were conveyed solely to
Bickett and his wife.
(Def.'s Mot. Partial Summ. J. Ex. 8, DN 42-9). Edmund
Bickett leases the land for farming purposes to Plaintiff
Bickett Brothers Farm (“Bickett Brothers”), a
partnership composed of his sons, Tim Bickett and Kim
Bickett. (T. Bickett Dep. 12:24-13:2, Feb. 23, 2016, DN
1965, the mineral rights were conveyed to Ashland Oil and
Refining Company (“Ashland”). (Def.'s Mot.
Partial Summ. J. Ex. 3, DN 42-4). Ashland drilled seventeen
wells on the property in 1966. (Def.'s Mot. Partial Summ.
J. Ex. 9, Attach. A, DN 42-10; Def.'s Mot. Partial Summ.
J. Ex. 9, at ¶ 2, DN 42-10 [hereinafter Hancock Aff.]).
Access roads to the wells were created no later than 1968 and
have not substantially changed since this time. (Hancock Aff.
¶ 3; T. Bickett Dep. 38:18-39:10). Ashland installed
electric lines and poles on the property for the purpose of
running its oil wells at some time prior to 1991 and also
installed gates and access points on the property. (T.
Bickett Dep. 23:3-24:7, 70:10-11; Def.'s Mot. Partial
Summ. J. Ex. 19, ¶ 6, DN 42-20 [hereinafter Coker
in the process of drilling the wells in 1966, Ashland filed a
lawsuit in Union Circuit Court alleging that James and Edmund
Bickett had been interfering with, harassing and intimidating
persons performing the drilling work. (Def.'s Mot.
Partial Summ. J. Ex. 14, DN 42-15). The Bicketts
counterclaimed for $150, 000, alleging that Ashland had been
using the surface unreasonably, arbitrarily, and capriciously
and had unreasonably, and unnecessarily damaged the surface
and the improvements of their land. (Def.'s Mot. Partial
Summ. J. Ex. 16, at 3, DN 42-17).
parties eventually settled the matter and entered into a
“Release of all Claims - Settlement in full”
(“the Release”) in December 1968. (Def.'s
Mot. Partial Summ. J. Ex. 17, DN 42-18 [hereinafter
Release]). The Release provided that “[i]t is
understood that this RELEASE covers all damages to the First
Parties' Union County property, both temporary and
permanent, and includes but is not limited to the space as
shown on the attached map and the attached Summary of
Damages, and includes those damages mentioned in Paragraph 1,
at page 7, of the First Parties Deed. . . .” (Release
106-107). For the consideration of $10, 500, Edmund and James
Bickett released and discharged Ashland, its successors and
assigns, of and from:
(1) all damages incurred to the date of this instrument of
whatsoever nature and character, including but not limited
to, damages to land, crops, vegetation, timber, natural and
man-made drainage ways, fences, roadways and improvements and
(2) all damages for the use and occupation of said surface
areas as long as Second Parties shall prospect for, explore
for, mine, operate, produce, store and remove the oil, gas,
and all other minerals and mineral rights conveyed to them by
the United States of America . . . .
(Release 107-08). The Release further provided that Ashland
and its assigns were “permanently released from all
claims for damages for the future use and occupation of those
portions of the above described real estate referred to in
part (2) of the immediately preceding paragraph.”
(Release 108). Further, Ashland was “not
released from such claims for damages that might arise as a
consequence of their future operations of the lands owned by
first parties, for example, growing crops, livestock, or
improvements or damages outside of the roadways now in
use or outside of the areas occupied by the existing
oil wells, second parties shall be liable therefore . .
. .” (Release 108 (emphasis added)). The summary of
damages included as an exhibit to the Release demonstrates
that compensation was paid to the Bicketts for 322, 993
square feet for the well sites and 123, 210 square feet for
the access roads. (Release 125).
transferred the mineral rights to Geigo Company LLP
(“Geigo”) in 1991. (Def.'s Mot. Partial Summ.
J. Ex. 19A, DN 42-21). In 2005, Geigo drilled an additional
well (the “Geigo well”), bringing to eighteen the
total number of wells on the property. (Def.'s Mot.
Partial Summ. J. Ex. 9, Attach. A, DN 42-10). Geigo paid
Edmund Bickett $1, 840 for permanent damages to the 0.46
acres associated with the drilling of this well. (Def.'s
Mot. Partial Summ. J. Ex. 20, DN 42-22). The mineral rights
were subsequently assigned to Defendant in 2010. (Def.'s
Mot. Partial Summ. J. Ex. 13). In 2014, Defendant contracted
with Bay Geophysical to perform seismic testing on the
property, which resulted in crop damage to corn located on
the property. (Hancock Dep. 14:22-15:2, Apr. 18, 2016, DN
43-10; Hancock Aff. ¶ 7). Defendant admitted liability
for the loss of crops due to seismic testing, but the parties
have not come to a resolution as to payment for the crops
destroyed. (Def.'s Resp. Pls.' Mot. Partial Summ. J.,
DN 43-2 [hereinafter Def.'s Resp.]).
led Plaintiffs to file this action in Union Circuit Court.
(Compl.) On July 15, 2015, the action was removed to this
Court. (Notice Removal, DN 1). Plaintiffs assert a number of
claims, seeking compensation for: (1) damage to crops due to
the seismic testing; (2) use of more surface area than is
reasonably necessary due to the number of access roads and
well sites; (3) use of more surface area than is reasonably
necessary due to electric poles and guywires; (4) burial of
the electric lines and poles because they are an unreasonably
dangerous use of the property; (5) replacement of gates on
the property that are unreasonably and negligently
maintained; (6) replacement and removal of pipe bridges on
the property that are unreasonably and negligently
maintained; (7) annual payments to maintain the access roads
and well sites by spraying and mowing to maintain the noxious
vegetation that negatively affects Plaintiffs' crop
yield. (Compl. ¶¶ 5-13). Plaintiffs maintain that
Defendant's negligence as to the structures complained of
unreasonably and unnecessarily interferes with
Plaintiffs' right to use the surface estate. (Compl.
have moved for summary judgment as to the claim for crop
damage due to seismic testing. (Pls.' Mot. Partial Summ
J., DN 41). Defendant has moved for summary judgment as to
all remaining claims. (Def.'s Mot. Partial Summ. J., DN
42). These matters have been fully briefed and are ripe for
Court has subject matter jurisdiction over this action under
28 U.S.C. § 1332 as there is complete diversity between
the parties and the amount in controversy exceeds the sum of
STANDARD OF REVIEW
ruling on a motion for summary judgment, the Court must
determine whether there is any genuine issue of material fact
that would preclude entry of judgment for the moving party as
a matter of law. See Fed. R. Civ. P. 56(a). The
moving party bears the initial burden stating the basis for
the motion and identifying evidence in the record that
demonstrates an absence of any material factual dispute.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). If the moving party satisfies its burden, the
non-moving party must then produce ...