Ball v. Dillard

*522DENTON, Justice.

This action was brought by A. R. Dillard, Jr., the mineral lessee, for damages and injunctive relief against Glen Ball, the surface lessee, who denied the mineral lessee access to the leased property. Ball filed a cross action seeking damages for the breach of an alleged oral contract, and for injunc-tive relief to prevent Dillard from using an asphalt road during his drilling operations. The trial court entered an agreed order granting the injunctive relief sought by the respective parties and submitted the damage issues to a jury. The trial court granted Ball’s motion for judgment non obstante veredicto and denied recovery of damages to both parties. The court of civil appeals reversed and rendered judgment in favor of Dillard for the damages found by the jury. 570 S.W.2d 465. We affirm the judgment of the court of civil appeals.

In 1973, Glen Ball entered into a surface lease with land owner Guy Robinson for a term of five years. In 1974, A. R. Dillard, Jr. entered into a mineral lease with Robinson covering the same ranch property. Later, in the summer of 1975, Dillard went onto the property and began preparations for drilling. On the southeast corner of the property was a “mountain road;” however, the mineral lease excluded its use in the drilling operations, and it was necessary for Dillard to build another road up the mountain. Construction of a new road was begun where the land owner had suggested. For some time Dillard’s employees used the south gate entrance in building the new road and preparing for drilling. September 9, 1975, Ball locked the south gate and did not provide a key for Dillard or his employees. On September 22,1975, Dillard filed a suit against Ball seeking an injunction to enjoin him from interfering with his rights as mineral lessee of ingress and egress for exploration and development of oil and gas. Ball filed a cross action seeking declaratory relief defining the rights of the parties under their respective leases, and under an alleged oral agreement between them. The cross action further sought an injunction enjoining Dillard, the mineral lessee, from using the “mountain road” located on the southeast corner of the ranch. Dillard subsequently amended his petition to seek damages caused by the lockout from the premises.

On October 17, 1975, Dillard and Ball, joined by the land owner Robinson and the Fort Worth National Bank as Trustee, agreed to an interlocutory order which enjoined Dillard from using the asphalt portion of the existing “mountain road;” enjoined Ball from interfering with Dillard’s ingress and egress; relieved Ball of his responsibility from maintaining the “mountain road” from the gate to the point where the asphalt began, and required Dillard to maintain any roads used in his operations. The parties then proceeded to trial on the damage issues. In response to the special issues the jury found: (1) Dillard had suffered damages as a result of Ball denying him access to the property; (2) Dillard had suffered damages in the amount of $10,-834.22; (3) there was insufficient water available to Dillard for drilling purposes on the property; and (4) the parties had not entered into an agreement to pay Ball for the surface damages he sought.

The trial court denied Dillard’s motion for judgment on the verdict, granted Ball’s motion for judgment non obstante veredic-to, and denied recovery of damages to both parties. The court of civil appeals reversed and rendered judgment for the mineral lessee for the damages found by the jury.

Ball contends that the respective rights of the surface and mineral lessees emanate from their respective leases from a common lessor. He contends that the reserved general right of entry for mineral exploration must be read in conjunction with the other provisions of the Ball surface lease, which had been recorded in the deed records of Palo Pinto County one month prior to Dillard’s mineral lease. In addition to Ball’s express obligation to the lessor with respect to the maintenance of the “mountain road” leading into the property, the lease further provides that the road is the property of the lessor and any load over 12,000 pounds going up the road or 24,000 pounds coming *523down the road is specifically prohibited. The surface lessee was given no authority to authorize the use of this road except for use as authorized by the lease. He was further obligated to “keep improvements in as good repair and condition as they may be put during the term of the lease . unavoidable depreciation and destruction excepted.” The mineral lease covering the same property provided as follows:

Lessee shall not use the present road up the mountain in the Southeast corner of the property. Lessee shall take adequate precautions to prevent any of his employees, agents, invitees, or others from using said road.

The mineral lease gave Dillard the dominate estate. He had the right to use as much of the premises and in such a manner, absent an express limitation, as was reasonably necessary to comply with the term of the lease and to effectuate its purposes. Sun Oil Co. v. Whitaker, 483 S.W.2d 808 (Tex.1972); Humble Oil & Refining Co. v. Williams, 420 S.W.2d 133 (Tex.1967); Warren Petroleum Corp. v. Martin, 153 Tex. 465, 271 S.W.2d 410 (1954). A grant of minerals would be worthless to a grantee if he could not enter upon the land for exploration and extraction of the minerals granted. Harris v. Currie, 142 Tex. 93, 176 S.W.2d 302 (1943); Stanolind Oil & Gas Co. v. Wimberly, 181 S.W.2d 942 (Tex.Civ.App.—El Paso 1944, no writ).

Ball concedes that he denied Dillard access to the lease property by locking the gate to the only usable road into the property, but argues that whether this was an unreasonable interference with Dillard’s right of access to the property is a fact issue to be determined from all the circumstances in the case. Ball argues that if he does not have an absolute right to prevent a mineral lessee from coming upon the land in order to carry out his contractual duty to maintain the “mountain road,” that he has a correlative right to do so under the respective lease agreements.

In reviewing the provisions of Ball’s surface lease, it clearly gives Ball neither “an absolute” nor “correlative” right to restrain the mineral lessee from going upon the land to develop the mineral estate. As previously stated, Dillard, the mineral lessee, holds the dominant estate, and as such has the right of ingress and egress upon the land for exploration and production of oil and gas. In so doing he must not make an unreasonable use of the surface. If he does he can be held accountable in damages. Robinson v. Robbins Petroleum Corp., Inc., 501 S.W.2d 865 (Tex.1973), and Sun Oil Co. v. Whitaker, 483 S.W.2d 808 (Tex.1972). When Ball locked the gate to the property, he denied Dillard access to the leased property, and was exercising a right not given to him by his surface lease. As holder of the surface lease, he had no legal right to deny the mineral lessee, Dillard, access to the land for mineral development purposes. Parker v. Texas Co., 326 S.W.2d 579 (Tex.Civ.App.—El Paso 1959, writ ref. n. r. e.); Phillips Petroleum Co. v. Cargill, 340 S.W.2d 877 (Tex.Civ.App.—Amarillo 1960, no writ). Thus, Ball, as surface lessee, has exceeded his rights under the lease, and in so doing has unreasonably interfered with the rights of Dillard, the mineral lessee. In Brown v. Lundell, 162 Tex. 84, 344 S.W.2d 863 (1961), this Court held that the rights of the surface holder and the mineral estate holder are reciprocal and distinct. Neither party can interfere with the rights of the other. See also, Gregg v. Caldwell-Guadalupe Pick-Up Stations, 286 S.W. 1083 (Tex.Comm’n App.1926, holding approved). Therefore, we hold that the evidence conclusively establishes that Ball, the surface lessee, unreasonably exceeded his rights by denying Dillard access to the property for development purposes.

Dillard had entered into an oral contract with Bob Lindsey, owner of Lin-Mour Drilling Co., in June of 1975, to drill three oil wells on the mineral lease. The drilling originally was to begin in August 1975, but it was later extended to the first part of September 1975. When Dillard was denied access to the property on September 9,1975, he was required to cancel this drilling contract. The initial drilling contract called for a cost of $6 per foot and $60 per hour *524“day work.” When drilling operations were later begun on November 8, 1975, the cost of drilling had risen to $6.50 per foot and $75 per hour “day work.” The damages found by the jury was clearly supported by the evidence.

The judgment of the court of civil appeals is affirmed.

Dissenting opinion by SPEARS, J., in which STEAKLEY, BARROW and CAMPBELL, JJ., join.