(dissenting).
I concur in the majority’s disposition of appellant’s Points 1 and 2, but respectfully dissent from its holdings by which appellant’s Points 3, 4 and 5 were sustained and the judgment of the trial court reversed and rendered.
The facts in this case are set forth in the majority opinion and need not be stated here.
The third, fourth and fifth assignments of error will be discussed together. Appellant argues that it has the right to take caliche from the surface to use on roads, drilling sites and tank battery sites, under its oil, gas and mineral leases from the mineral owners. Appellant’s claim is based upon the rights of the holder of an oil and gas lease to use so much of the surface as is reasonably necessary or essential to the enjoyment of the grant of the lease. There is no doubt, under the holdings of the Texas courts, that the holder of the oil and gas lease has the dominant estate and that said holder is entitled to use so much of the surface as is reasonably necessary. Stradley v. Magnolia Petroleum Co., Tex.Civ.App., 155 S.W.2d 649. The right of such use has been expanded by the courts to include a grant of way, surface, soil, water, gas and like essentials. Guffey et al. v. Stroud, Tex.Com.App., 16 S.W.2d 527, 64 A.L.R. 730. We have found no cases where the use of caliche has been the subject of such a suit. Caliche is not such a mineral as to come under the classification of a mineral in the oil, gas and mineral leases. Shell Petroleum Corp. v. Liberty Gravel & Sand Co., Tex.Civ.App., 128 S.W.2d 471; Psencik et al. v. Wessels et al., Tex.Civ.App., 205 S.W.2d 658; Heinatz v. Allen, 147 Tex. 512, 217 S.W.2d 994; Praeletorian Diamond Oil Ass’n v. Garvey et al., Tex.Civ.App., 15 S.W.2d 698; Winsett et al. v. Watson, Tex.Civ.App., 206 S.W.2d 656. The lease in question granted to the lessee the right and privilege of investigating, exploring, prospecting, drilling and mining for and producing oil, gas and all other minerals; laying pipe lines, building tanks, power stations, telephone lines and other structures upon the land covered by said lease; and the right to *498produce, save, take care of, treat, transport; and own said products and housing' its employees. Further, the “lessee shall have free use of oil, gas, coal, wood and water, from said land.” Appellee contends that where these specific, foregoing free uses of the surface for the Benefit of the lessee are enumerated, any other uses are excluded under the doctrine of expressio unius est exclusio alterius. I believe this doctrine to be applied primarily to the construction of statutes, and not. to a- lease that necessarily contains numerous implied covenants (American Indemnity Co. v. City of Austin, 112 Tex. 239, 246 S.W. 1019); but I believe that the inclusion of such specific items may tend to show the intent of the parties.
In the present case, the testimony of appellant’s production superintendent, who made the arrangements for the drilling, indicates clearly that he expected to pay, and did pay, for the use of the caliche. However, he did his dealing with a tenant who had no authority, knowing at the time that appellee was the record owner. There is also testimony to the effect that appellee subsequently sold caliche commercially from another pit on the same property, opened near the one in question. While it is true that appellant was entitled to so much of the surface as was reasonably necessary, I believe that use is applicable to such surface occupied by drilling rigs, tank batteries, roads for ingress and egress, slush pits and other necessary usages, but not to the free use of a marketable mineral (caliche, in this case) not contemplated by the lease. Appellee has a monetary interest in such caliche as may be found on his property, to produce himself or lease to some other person, as in Shell Petroleum Corporation v.. Liberty Gravel and Sand Company supra; and, as held in that case, I believe that appellant here was a trespasser. Mountain States Tel. & Tel. Co. v. Vowell Construction Co., Tex. 1961, 341 S.W.2d 148. The pit, consisting of about an acre of land, and to a depth of eight or ten feet, has destroyed the surface for the purpose which it had previously been used — that is, a grazing leaser-thus justifying the damages found by the trial court.
To extend the uses to which the surface may be subjected beyond the present point, I believe would be an unwarranted invasion-of those property rights remaining to the owner of the surface.
I would affirm the judgment of the trial court.