A motion was filed by Cain this week asking U.S. District Judge Irene Keeley, to certify a question for the WV state justices. Should she decline, he wants her to grant a judgment on his behalf and issue an order that provides for permanently stopping XTO Energy from trespassing on any of his property.
Cain concedes he doesn't own the rights to oil, gas and minerals under his 105 acres. But he argues that a 1907 deed at the center of the case never envisioned such extensive surface disruption.
XTO Energy plans to use about 36 acres to site wells. Cain contends that would use the best land and leave him mostly with steep hillsides.
XTO has denied doing anything illegal and wants the case dismissed. It argues it paid $63,000 for a pipeline right of way easement to transport oil, gas water and other substances across Cain's property.
But Cain says the justices should rule on whether a company has the right to occupy the surface of the land just because it controls the resources underneath. He argues XTO shouldn't be able to profit from what he considers illegal activity.
Existing case law supports "the common sense principles" underlying his case, the motion says. However, "the question presented has not been squarely answered by a controlling appellate decision."
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