dissenting:
Whether or not a mineral lessee seeking to appropriate surface water, without the consent of the surface landowner, has standing before the Oklahoma Water Resources Board is properly governed by the law in force at the time application is made.
Title 60 O.S. 1981 § 60 provides as follows:
“The owner of the land owns water standing thereon, or flowing over or under its surface, but not forming a definite stream ...; provided further, that nothing contained herein shall be construed to limit the powers of the Oklahoma Water Resources Board to *506grant permission to build or alter structures on a stream pursuant to Title 82 to provide for the storage of additional water the use of which the landowner has or acquires by virtue of this Act.” (Emphasis added.)
The owner of the land is thus vested with absolute ownership of the surface waters upon his land. This vested property right is in no way limited by common law principles. The distinction rests upon cognizance of the disparity between entry upon the land/reasonable use of the surface of the land, as opposed to a lessee’s appropriation of water itself, belonging to the landowner.
An owner of an oil and gas interest is not the owner of the land. While the owner of oil and gas interests may enter upon and make reasonable use of the land surface in connection with exploring for and extracting mineral deposits, he is not entitled to ex-parte appropriation of the landowner’s property to his own use without just compensation. Non-consensual impairment of a landowner’s vested property right to the surface waters upon his land constitutes an unconstitutional taking. Accordingly, 82 O.S. 1981 § 1020.11(D) provides:
“...D. Except as provided in Section 1020.1 of this title, no permits shall be issued to an applicant who does not own the land on which the well is to be located, or hold a valid lease from the owner of such land permitting withdrawal of water from such basin or subbasin.” (Emphasis added.)
Water is a valuable natural resource, having a definite economic value. Where a fixed quantity of water is appropriated for use to the overlying surface owner, serious disputes often arise. Consider for example, the conflict between an irrigator-sur-face owner who intends to use or is using the full amount of water apportioned to his acreage, and a mineral lessee who intends to use a quantity of the same water to carry on his oil and gas operations. Such conflicts are better resolved contractually through purchase or lease of water rights. Their resolution is not contemplated by the Oklahoma Ground Water Law.