I respectfully dissent. I would affirm the judgment of the trial court.
I have found no case where the lessee’s use of the vertical space over the well site has been limited or restricted, or any case where a lessee has been held liable for damages for excessive use of such air space.
The majority opinion poses some interesting problems. There is nothing unique about a conventional beam type pumping unit — in terms of height — as compared to a drilling rig, workover rig, storage tanks, separators, and other surface equipment, which must always be present in connection with the drilling and production of oil wells. A pumping unit on a producing well which does not flow is just as necessary and essential to effectuate the purposes of the lease as is a drilling rig used to drill a well on the leased premises. Such drilling rigs are of a height greatly in excess of the pumping units here involved, and the use of such drilling rigs at the well sites of Getty’s two wells, or anywhere within the sweep of appellant’s Valley System irrigation equipment would just as effectively prevent the use of such type of irrigation equipment as would the pumping units here involved. It would be possible, although more expensive, to place such rigs in an excavation or pit of sufficient depth that the top of such rigs would not extend over seven feet over the surface of the land, or directionally drill such wells from a location that would not interfere with the operation of appellant’s irrigation system. The majority opinion recognizes that drilling or reworking operations will necessarily interfere with the operation of appellant’s irrigation system, in that such operations require equipment in excess of seven feet above the ground, but states that such operations would not seriously interfere with the use of the surface since they would be temporary in nature. It is possible that drilling operations might extend over a considerable period of time, dependent upon the number of wells drilled, their depth, problems which might be encountered in drilling, and other factors ; and it is also possible that production of oil from the leased premises might be of a temporary nature, in that the production might cease at any time. It is to be noted that Getty’s two wells were drilled in January of 1968, and this suit, in which both permanent and temporary damages are sought, was filed in June of 1968, a period of approximately six months.
Under the majority holding, a fact question of reasonable use of the surface of the leased premises would arise at any time a lessee uses or places on the leased premises a drilling rig, workover rig, pumping unit, compressors, storage tanks, or other equipment or structures necessary for the drilling and production of oil and gas, which interfere with the use of any farming equipment owned by the landowner prior to the time the oil lessee moved such equipment or structures on the leased premises. Here the use of equipment that extends in excess of seven feet over the sur*98face of the well site had been held to be an unreasonable use. I do not believe that under a customary oil and gas lease as involved here the lessee’s use of the surface is so restricted.
The majority opinion correctly states that the oil and gas lease gave Getty the dominant estate; that it had the right to use as much of the premises and in such a manner as was reasonably necessary to comply with the terms of the lease, and to effectuate its purposes; and that the owners of the dominant estate and the servient estate must each exercise their respective rights with due regard for the rights of the other. I have no quarrel with such established principles, but disagree with the application thereof made by the majority. In some manner the lessee’s dominant estate has somehow become subservient and inferior to the landowner’s servient estate.
In my opinion, Getty’s operations here complained of took place within the legitimate operating area which it was entitled to occupy as a holder of the dominant estate to the exclusion of appellant, the owner of the servient estate.1 I would hold as a matter of law that the erection and maintenance of-the conventional pumping units used by Getty in the manner that they were used did not constitute an unreasonable use of the surface of the land, and that Getty was fully authorized under the terms and provisions of its lease to so operate such pumping units.
I would affirm the judgment of the trial court.
. I have found no eases where a “reasonable use” of the surface has been so narrowly limited as in the instant ease. Here, any use of the air space in excess of seven feet over the well site has been held to be an unreasonable use of the surface of the land. There are numerous cases holding a lessee not liable for damages arising on the well site and the immediate area thereto. Some of the cases speak in terms of “no duty.” In Warren Petroleum Corp. v. Martin, 153 Tex. 465, 271 S.W.2d 410 (1954) the Court held that the lessee was not liable for damages incurred when cattle owned by a surface lessee drank oil from a pool located about five feet from the well, stating that the oil lessee was under no duty to fence the well to prevent cattle from entering upon the land near the well and drinking oil on the ground, and that the only duty owed to the surface lessee was not to intentionally, willfully, or wantonly injure his cattle. Since Warren’s operations took place within the legitimate area which it was entitled to occupy as the holder of the dominant estate, it was under no duty to keep Martin’s cattle out of the area. In Pure Oil Co. v. Gear, 183 Okl. 489, 83 P.2d 389, the lessee had constructed an open ditch from some of his equipment at the well to a pond which retained water, and plaintiff’s cattle came to the ditch and drank water and were poisoned. The Court held that the defendant, as mineral lessee, had the exclusive (emphasis added) right to use the space required for the construction of the ditch and pond, that the cattle in drinking from such ditch were trespassers, and that no liability attached. The Court said: “The true rule is that under the ordinary oil and gas lease, the lessee, in developing the premises in the production of oil and gas, is entitled to the possession and use of all that part of the leased premises which is reasonably necessary in producing and saving the oil and gas. This extends to the space required upon which to erect tanks or dig pits necessary to store or confine such refuse matter as may come from the wells on the leased premises in the course of ordinary prudent operations.” Other cases similarly holding are Sinclair Prairie Oil Company v. Perry, 191 S.W.2d 484 (Tex.Civ.App.—Texarkana 1945, no writ); Placid Oil Co. v. Lee, 243 S.W.2d 860 (Tex.Civ.App.—Eastland 1951, no writ); Baker v. Davis, 211 S.W.2d 246 (Tex.Civ.App.—Eastland 1948, no writ); and Trinity Production Company v. Bennett, 258 S.W.2d 160 (Tex.Civ.App.—Amarillo 1953, no writ). Several of these cases involved wells with pumping units, and some involved injuries to cattle by the pumping units at the well site. Will a different rule be applied to an intrusion on the well site premises by cattle of a landowner, which is held to be a trespass with no liability, and an intrusion on the same well site premises by the landowner’s irrigation system? I can see no logical reason for such a distinction.