holding that an oil and gas lease impliedly authorizes the oil and gas estate, which is the dominant estate, as much use of the surface estate as is reasonably necessary to produce and remove the minerals
How later courts described this case
- holding that an oil and gas lease impliedly authorizes the oil and gas estate, which is the dominant estate, as much use of the surface estate as is reasonably necessary to produce and remove the minerals
- setting forth the accommodation doctrine, which provides that “where there is an existing use by the surface owner which would otherwise be precluded or impaired, and where under the established practices in the industry there are alternatives available to the lessee whereby the minerals can be recovered, the rules of reasonable usage of the surface may require the adoption of an alternative by the lessee”
- establishing the accommodation doctrine in Texas, whereby if it is shown that a mineral owner has reasonable alternative ways to extract minerals which will not interfere with the surface owner’s intended use, the mineral owner must choose the use not precluding the use of the surface owner
- holding that the mineral estate is dominant over the surface estate
Written by the judges who cited it.
The opinion
GREENHILL, Justice
(concurring).
The decision in this case can rest on a narrower basis, and I would prefer a narrower holding.
As I understand the record, before Getty installed its beam type pump within the irrigated area of Jones, there were already two different types of pumping units in operation in the immediate area. Adobe Oil Company had placed its pumping units in concrete cellars; and an Adobe pumper testified that they required less maintenance, and leaked less sulphide gas than the surface pumps. Amerada had installed its two wells with non-interfering hydraulic pumps.
*629 So when Getty got ready to put its pumps in the irrigated area, it had three choices, two of which would not have interfered with the existing irrigation system. It chose to use the surface beam type pump and thus chose to exercise what it regarded as its rights whether it injured Jones or not. In my opinion, the above facts and circumstances constitute some evidence to support the jury’s finding that Getty’s use of the surface was in a manner which was not reasonably necessary.
While the opinion of the court points out the facts that the irrigation system was already in existence when Getty installed its pump, and that others in the area were using different ways to produce the oil, the court’s holding is not expressly limited to conditions in existence when Getty’s pumps were installed on the irrigated area. Perhaps it would be dictum for the court to say more. But so that there might be no misunderstanding at least as far as I am concerned, I would limit this holding to the conditions at the time the pumps were installed. I would not hold that Getty, or anyone else, would have to move its pumps if they were in place before Jones purchased and installed his irrigation system. For example, if Jones decided to use a mobile irrigation system in the northwest corner where Getty had had its surface pump already operating, my opinion as to how the case should be decided would be different. I would think that the surface owner could not compel the oil and gas lessee to change its operations because the surface owner decided to change his operations. At least that would be a different ball game. In that event, it would seem proper to me for the surface owner to pay for the necessary changes in the oil and gas lessee’s operations, or at least to contribute to such expense, depending in part on what benefit there might be to such lessee.
So I regard the holding in this case as being a narrow one, and as applying to a situation where, viewing the record in the light most favorable to the jury’s verdict, the oil and gas lessee deliberately chose to install its surface pumps so as to destroy or seriously impair an existing surface irrigation system, where the evidence shows that it had at least two alternative choices which apparently seemed reasonable enough to other oil operators on the same property.