Drake v Fox

Drake v Fox 2010 NY Slip Op 01100 [70 AD3d 1326] February 11, 2010 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 31, 2010

Milford C. Drake et al., Appellants, v Dale F. Fox et al., Respondents.

—[*1] Brautigam & Brautigam, L.L.P., Fredonia (Michael K. Bobseine of counsel), for plaintiffs-appellants.

Law Offices of J. Michael Shane, Allegany (J. Michael Shane of counsel), for defendants-respondents.

Appeal from a judgment of the Supreme Court, Cattaraugus County (Larry M. Himelein, A.J.), entered October 29, 2008. The judgment dismissed the complaint after a nonjury trial.

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action seeking, inter alia, damages for physical and environmental damage to their properties allegedly resulting from defendants' oil and gas exploration and production activities conducted pursuant to a series of oil and gas leases. Supreme Court properly dismissed the complaint following a nonjury trial. "[A] mineral estate in a tract of land carries with it the right to such access over the surface that may be reasonably necessary to carry on mining activities" (Allen v Gouverneur Talc Co., 247 AD2d 691, 692 [1998]; see Frank v Fortuna Energy, Inc., 49 AD3d 1294 [2008]). Here, plaintiffs failed to establish that defendants acted unreasonably in their installation or use of access roads to extract oil and gas or that plaintiffs are otherwise entitled to recover damages pursuant to the terms of the leases for restoration of their property prior to the completion of oil and gas production. We have considered plaintiffs' remaining contentions and conclude that they are lacking in merit. Present—Scudder, P.J., Centra, Fahey and Green, JJ.