Tarrant jury awards $20,000 to homeowners in nuisance suit against Chesapeake by Jim Juquay, May. 24, 2014, Star Telegram
Fort Worth – As the natural gas leasing boom swept through Tarrant County in 2007, Sam Crowder warily eyed the vacant land south of his Fort Worth home. Could it be a possible drill site? No, he decided, the plot west of McCart Avenue and north of West Cleburne Road was too small, too close to residences. So he signed a drilling lease on his Madrid Drive house in late 2007. But at 5 acres, the open field had plenty of space for a well pad, and by February 2008 it was owned by Chesapeake Exploration, a unit of Oklahoma City-based Chesapeake Energy, according to Tarrant Appraisal District records. By 2011, natural gas was flowing from what was eventually three wells on the drill pad, just 165 feet from Crowder’s backyard fence.
In November 2011, Crowder sued Chesapeake Operating, complaining that the noise, odors and truck traffic from the well site were a nuisance. And on Friday, a Tarrant County jury agreed, awarding him $20,000 in damages, a fraction of the approximately $108,000 he had sought.
The finding of a private nuisance means the six-person jury concluded that the well site substantially interfered with the Crowders’ ability to enjoy their property.
“Most people have never experienced a gas well being drilled; they’ve never seen one,” Crowder, 71, said in an interview after the verdict. The white-haired retiree and his wife, Jane, had never undertaken anything like their lawsuit, he said, but feel vindicated despite the reduced damages. The jury declined to award more than $80,000 in future damages after they found that the well site was a temporary, not permanent, nuisance.
“It’s not about the money. It’s about somebody finally listening to us and agreeing with us. It’s not right. It’s in the wrong environment,” Sam Crowder said of the wells.
Jane Crowder said she sometimes must stop her outside activities because her eyes become irritated and odors are too strong. She said the couple’s nine grandchildren, owing to health concerns, no longer come to their home to visit.
A spokesman at Chesapeake’s corporate headquarters said the company had no comment on the verdict. Chesapeake is the largest natural gas producer in Tarrant County and the second-largest in the Barnett Shale. The company doesn’t have to make any changes at the site as a result of the decision.
It’s believed to be the first time a Tarrant County jury has found for a plaintiff in a nuisance suit related to natural gas development. It follows a $2.9 million jury award on April 23 in Dallas County to a Wise County family in their nuisance claim against Plano-based Aruba Petroleum.
Fort Worth attorney Kirk Claunch, whose firm represented Crowder, promises more to come. While Claunch lost a similar suit by a different homeowner against the same Chesapeake drill site on April 10, he said Friday he has eight other suits in several counties related to natural gas development.
Claunch said he was “very pleased” with the award, echoing Crowder’s statement that a big monetary award was not first and foremost. The verdict “established a very good precedent of a nuisance case of gas well drilling in an urban environment,” he said, and is a reminder that simply complying with laws and ordinances isn’t enough.
The city of Fort Worth drilling ordinance calls for a 600-foot setback for drilling operations from homes and other protected uses. But Chesapeake obtained a variance from that rule after collecting waivers from 81 percent of the affected property owners. Crowder didn’t sign the waiver.
‘A constant annoyance’
Two Texas energy lawyers said the successful suits by plaintiffs are being noticed and will lead to more nuisance lawsuits against energy producers, historically a rare cause of action.
“As a way to deal with these issues, it’s pretty new,” said Austin energy attorney John McFarland, who has represented landowners in royalty lawsuits against oil and gas producers, “I think these cases are going to grow” as the plaintiff’s bar sees an opportunity for contingency awards, he said. Bob Ballentine, a Houston attorney with Burleson LLP who represents energy firms, agreed, although he cautioned that each case must stand on its own.
In the Parr case, the jury found that Aruba created a nuisance, but also decided that natural gas production around the Parrs’ 40-acre ranch was not “abnormal or out of place” in its surroundings. “They were saying that it does not constitute a nuisance in every instance,” Ballentine said.
The Tarrant County jury that delivered its verdict Friday found that Chesapeake intentionally created a nuisance with its well site, and that the facility was abnormal and out of place for its environment.
During the week-long trial, Sam Crowder testified that the well site was “a constant annoyance,” citing dust, round-the-clock noise from a compressor on the site, and diesel truck traffic. “It’s nasty, and it just doesn’t belong there,” he said.
Other homeowners in the neighborhood who were called as witnesses in the case likewise complained of its presence. Two of the witnesses have also sued Chesapeake. “None of our neighbors like the gas wells,” Sam Crowder said Friday.
During the trial, two Chesapeake employees told the jury that the company made numerous efforts to respond to complaints from residents.
Production supervisor Craig Overcash testified that the company moved a compressor on the site three times in an effort to satisfy another neighbor, Guillermo Ortegon, who is not suing Chesapeake. Overcash said Chesapeake enclosed the compressor in what Chesapeake attorney Clark Rucker termed the “Rolls Royce of sound walls.” Overcash said the company spent about $180,000 addressing Ortegon’s complaints. He testified that with the sound walls in place, “I couldn’t distinguish it from the surrounding street noise.”
But Sam Crowder said he can, and he sleeps with a fan in the bedroom to drown it out, even though his home has double-paned windows and storm windows.
Asked if he would sleep better Friday evening after winning his suit, he said, “Yes, knowing that somebody heard me and agreed with me.”
And the compressor sound? “It’ll always be annoying,” he said. [Emphasis added]
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“There could be millions or billions of dollars worth of damages,” argued Crown counsel Neil Boyle.
Sketch by C. Abel, Ernst v. Alberta Government, heard by Justice Neil Wittmann, Drumheller Court of Queen’s Bench, April 18, 2014
Encana’s “Rolls Royce of sound walls” at the 7-13-27-22-W4M Compressors, about 900 metres from Ernst’s home. The Rosebud coulee walls amplify the noise into Ernst’s property and home.