Thank You For Submiting Feedback!
The mineral estate owner is entitled to make reasonable use of the surface for the production of his minerals. It is not ordinarily contemplated, however, that the utility of the surface for agricultural purposes will be destroyed or substantially impaired. The due regard concept defines more fully what is to be considered in the determination of whether a surface use by the lessee is reasonably necessary. There may be only one manner of use of the surface whereby the minerals can be produced. The lessee has the right to pursue this use, regardless of surface damage. And there may be necessitous temporary use governed by the same principle.
John H. Jones, respondent, the surface owner of a tract of land in Gaines County, Texas, sued for an injunction to restrain Getty Oil Company, petitioner, an oil and gas lessee, from using vertical space for pumping units that prevent the use by him of an automatic irrigation sprinkler system, and for damages. Upon trial, the jury found that it was not reasonably necessary for Getty to install pumps that prevented the operation of the irrigation system; and that by doing so Getty decreased the market value of the land $117,475, and decreased the value of the use of the land from the time of erection of the pumps until the trial by $19,000. The trial court granted Getty's Motion for Judgment Non Obstante Veredicto on the ground there was no evidence that Getty used more lateral surface than reasonably necessary. Upon appeal, the court of civil appeals reversed the judgment of the trial court, holding that vertical as well as lateral space was restricted to that which is reasonably necessary. The court remanded the case, however, on the further holding that the trial court had erroneously instructed the jury. One Justice dissented. 458 S.W.2d 93. Both parties have filed applications for writ of error.
Could Getty use more vertical, as well as lateral, space for pumping oil than reasonably necessary on land owned by Jones, the surface owner?
The court found that Getty had reasonable alternatives for obtaining its oil and that the irrigation system used by Jones afforded him perhaps the only reasonable means of developing the surface for agricultural purposes. The court extended the rule that Getty was entitled to use the lateral surface and subsurface of the land only as far as was reasonably necessary in mining gas or oil to the super adjacent air space as well. The court therefore affirmed the lower court's judgment.