The opinion
VANDEWALLE, Chief Justice,
concurring specially.
[¶ 34] I concur in the result reached in the opinion of the Court. I agree the oil and gas lessee has a limited right to use the surface to produce the oil and gas and the surface owner does not lose all right to use that surface even though the mineral interest is the dominant estate. Hunt Oil Co. v. Kerbaugh, 283 N.W.2d 131, 135 (N.D.1979). I write specially to note my belief that the oil and gas lessee does have the right and perhaps the responsibility to keep people, including the surface owner, off of dangerous property the lessee is *716 using to produce the oil and gas, such as tank batteries, open pits, pumps, etc. Here the evidence supports the trial court’s determination that, for retaliatory-reasons, Sagebrush attempted to restrict the defendants beyond what was necessary to accomplish safety purposes.
[¶ 35] GERALD W. VANDE WALLE, C.J.