Chapter 7-6 Suit in Assumpsit

• Jurisdiction: United States

7-6 Suit in Assumpsit

7-6:1 Overview

Texas belongs to a minority of states that permit a plaintiff to waive a Trespass Action and bring a Suit in Assumpsit under an implied contract. A Suit in Assumpsit allows a plaintiff to recover for the reasonable value of the use and occupation of the mineral estate in the event that there is no actual injury. Courts use a reasonable market value measure when determining the value for the use and occupation of the mineral estate.

7-6:1.1 Related Causes of Action

Trespass, Breach of Contract, Unjust Enrichment¹¹⁹

MUST READ CASE

Phillips Petroleum Co. v. Cowden, 241 F.2d 586 (5th Cir.1957)

7-6:2 Elements

(1) The plaintiff owns or has a lawful right to possess real property;

• The plaintiff must own or have a lawful right to possess real property.¹²⁰

• The plaintiff must have title to the mineral estate. The title-holder of the surface estate cannot maintain a Trespass or Assumpsit action.¹²¹
• A lessor who has leased the mineral estate may still maintain a Suit in Assumpsit, provided they did not grant the lessee an exclusive right to prospect.¹²²

(2) The defendant physically and intentionally entered the plaintiff's land.¹²³

• Texas recognizes geophysical subsurface trespass, such as unauthorized seismic testing of a mineral estate.¹²⁴

• However, there must be physical entry or injury upon the surface estate.¹²⁵

(3) The defendant's trespass caused injury to the plaintiff.

• Under a Suit in Assumpsit, a plaintiff does not need to establish actual physical injury to the land.¹²⁶

• Plaintiff may recover under an implied contract basis for value of the right to conduct exploratory testing on their own terms.¹²⁷
• Plaintiff is entitled to this recovery even if the defendant does not receive any actual benefit from the testing.¹²⁸

7-6:3 Damages and Remedies

7-6:3.1 Use and Occupation Damages

A plaintiff is entitled to the value of the use and occupation of the mineral estate.¹²⁹

• The value of the use and occupation of the mineral estate is the reasonable market value of exploratory testing.¹³⁰

7-6:4 Defenses

7-6:4.1 Statute of Limitations

The statute of limitations for permanent injury to land is two years from the date of the first injury. However, the damages for temporary injury to land may be recovered for the two years prior to filing suit.¹³¹

• The cause of action begins to accrue on the date the trespass is committed.¹³²
• Texas courts reject application of the discovery rule to claims involving oil and gas

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