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 *620found 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. We affirm the judgment of the court of civil appeals.
In 1955 Jones purchased the 635 acre tract of land in question, which was subject to prior mineral leases in which he acquired no interest. Getty holds an oil, gas and mineral lease covering 120 acres in the west half of the tract; Amerada Petroleum Corporation holds a similar lease covering the remainder of the western half of the tract. The lease for the eastern half of the tract is held by Adobe Oil Company.
Jones has drilled seven irrigation wells since 1955, five of which are used to irrigate this tract of land. Prior to 1963, he used hand-moved, and later power roll, irrigation equipment to irrigate the tract. In 1963 he installed a self-propelled sprinkler irrigation system known °as the “Valley System.” This system consists of 1,300 feet of pipe supported at a height of seven feet above the ground by a series of steel towers which rotate in a clockwise direction around a pivot point. The system can negotiate most obstacles which are less than seven feet in height. The pivot points are connected by underground pipes to the irrigation wells. Labor is required only to move the system from one pivot point to another. There are six pivot points which provide for irrigation of the entire tract except for a few corner areas. At the time Jones installed the system Getty had one producing oil well in the northwest corner of the tract. This well had a beam-type pumping unit considerably over seven feet in height; however, the unit was outside the circumference of the closest pivot point and did not interfere with operation of the sprinkler system.
In December of 1967 Getty drilled two additional wells on its 120 acres which produced but would not flow. Getty installed two beam-type pumping units, one of which is seventeen feet high at the top of its upstroke, and the other thirty-four feet high. Because of this height, the pumps preclude the use of four pivot points of Jones’ irrigation system with a consequent depreciation in the value of the land because of the reduction in its production potential. Getty also has battery tanks placed on the land that are outside the circumference of the irrigation system and do not interfere with it.
Prior to the time Getty developed its two new wells, Adobe had drilled four wells on the eastern half of the Jones tract and had installed beam-type pumping units on each of the wells. Two of these wells were outside the circumference of the closest pivot points of the sprinkler system; the others would have interfered with the system and were placed in concrete cellars to provide clearance. In addition, the cellars were placed so that the support towers of the sprinkler system would pass around them. In its portion of the tract Amerada also has two wells within the circumference of the irrigation system but both utilize hydraulic pumping units which are less than seven feet in height at the well head and hence do not interfere with the irrigation system. The power unit for these hydraulic pump§ is also located so as not to interfere with the system.
The oil and gas lease grants Getty the land “for the purpose of investigating, ex*621ploring, prospecting, drilling and mining for and producing oil, gas and all other minerals, laying pipe lines, building roads, tanks, power stations, telephone lines, houses for its employees, and other structures thereon to produce, save, take care of, treat, transport, and own said products.” The lease obligates the lessee to bury all pipe lines below ordinary plow depth when required by the lessor. The lease contains no specific provision concerning the vertical usage of the land.
Jones does not charge Getty with negligence nor deny Getty's right to determine the location of its wells and to install some type of pumping equipment when necessary for production. His position is that under the facts and circumstances it was not reasonably necessary for Getty to install pumping units in the manner which denies him the use of his irrigation equipment.
Getty’s principal contention is that it has a right to exclusive use of the super-adjacent airspace above the limited surface area occupied by the pumps and that only the lateral surface of the land should be subject to the established rule of reasonably necessary surface usage. We disagree. It has long been recognized that ownership of real property includes not only the surface but also that which lies beneath and above the surface. The use of land extends to the use of the adjacent air. See United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946); Broughton v. Humble Oil & Refining Co., 105 S.W.2d 480 (Tex.Civ.App.—El Paso 1937, writ ref’d); Schronk v. Gilliam, 380 S.W.2d 743 (Tex.Civ.App.—Waco 1964, no writ). Although the earlier cases were generally limited to a consideration of the lateral surface, we held in Brown v. Lundell, 162 Tex. 84, 344 S.W.2d 863 (1961), that the rule of liability of the mineral, lessee for negligently and unnecessarily damaging the surface estate includes the subsurface. This decision implicitly recognized that there are vertical as well as lateral boundaries to the use of the surface hold explicitly that the reasonably necessary limitation extends to the superadja-cent airspace as well as to the lateral surface and subsurface of the land, estate by the oil and gas lessee. We now
Getty further says that if it has acted in a reasonable manner in accomplishing the purposes of the oil and gas lease, its right to so use the surface and the air above is absolute, and that the consequences to the owner of the surface estate are of no legal effect. The expert witnesses agreed that the beam-type pumping units used by Getty were more economical than the hydraulic pumping units; and there was no evidence of any intrinsic value to Getty from the extra expense of constructing below-surface cellars to house the beam-type units. So, Getty argues that their placement of the beam-type pumping units on the surface was authorized by the lease as a matter of law. The question to be resolved, then, is whether evidence may be entertained to show the effect of Getty’s manner of surface use upon the use of the surface by Jones, together with the nature of alternatives available to Getty, in resolving the issue of reasonable necessity.
It is well settled that the oil and gas estate is the dominant estate in the sense that use of as much of the premises as is reasonably necessary to produce and remove the minerals is held to be impliedly authorized by the lease; but that the rights implied in favor of the mineral estate are to be exercised with due regard for the rights of the owner of the servient estate. Humble Oil & Refining Co. v. Williams, 420 S.W.2d 133 (Tex.Sup.1967); General Crude Oil Co. v. Aiken, 162 Tex. 104, 344 S.W.2d 668 (1961); Brown v. Lundell, 162 Tex. 84, 344 S.W.2d 863 (1961); see Keeton & Jones, Tort Liability and the Oil and Gas Industry, 35 Texas L.Rev. 1 (1956); Comment, Land Uses Permitted an Oil and Gas Lessee, 37 Texas L.Rev. 889 (1959); Lambert, Surface Rights of the Oil and Gas Lessee, 11 Okl.L.Rev. 373 (1958) ; Davis, Selected Problems Regarding Lessee’s *622Rights and Obligations to the Surface Owner, 8 Rocky Mt.Min.L.Inst. 315 (1963). In another context we recently gave recognition to the surface soil as a natural resource in Acker v. Guinn, 464 S.W.2d 348 (Tex.Sup.1971): “[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. Kenny v. Texas Gulf Sulphur Co., 351 S.W.2d 612 (Tex.Civ.App.—Waco 1961, writ ref’d). And there may be necessitous temporary use governed by the same principle. But under the circumstances indicated here; i. e., where there is an existing use by the surface owner which would otherwise be precluded or impaired, and where under the established practices in the industry there are alternatives available to the lessee whereby the minerals can be recovered, the rules of reasonable usage of the surface may require the adoption of an alternative by the lessee.
The only evidence regarding reasonable means of irrigating this land is found in the testimony of witnesses presented by Jones. It was their testimony that a critical shortage of labor available to farms in the area necessitates the use of automatic sprinkling equipment in irrigating the land. Indeed, Jones testified that the decreasing availability of labor was the controlling factor in his installation of the self-propelled sprinkler system in 1963. Getty sought by cross examination of the witnesses to establish that manual irrigation would suffice, or that a reversible automatic sprinkler would be an adequate alternative for Jones; all, however, rejected manual irrigation as a realistic alternative because of the labor shortage. Neither did the witnesses consider the reversible system a suitable substitute since it would require supervision night and day to avoid collision with the pumps; and that, even if supervisory labor is available, loss of a day’s watering would result from moving the system to its proper position by the reversal procedures.
Although disputed by Getty, there was evidence to show that it had reasonable alternatives for obtaining its oil. A petroleum engineer presented by Jones testified that the construction of cellars adequate for the two pumping units required by Getty would have cost less than $12,000 when the pumps were initially installed, and that natural air circulation would alleviate the danger of hydrogen sulfide gas collecting in the cellars. He further testified that installation of large hydraulic pumps would have initially cost less than $5,000 more than the present pumps and would have annual operations costing from $350 to $1,000 more per year. Another witness for Jones was a contract pumper for Adobe who was currently operating two beam-type pumps in cellars, together with twenty-five beam-type pumps on the surface. He testified that less maintenance was necessary on the units in the cellars than on the ones on the surface and that there was less leakage of hydrogen sulfide gas; he also testified that the prevailing winds ventilated the cellars.
The record thus indicates that the irrigation system currently in use affords Jones the most advantageous, and perhaps the only reasonable means of developing the surface for agricultural purposes. It is also indicated that there is available to Getty the two types of pumping installations — the beam-type pumps in cellars or the hydraulic pumps on the surface — which are reasonable alternatives to its present use of the surface; and that Getty’s use of an alternative method of producing its wells would serve the public policy of de*623veloping our mineral resources while, at the same time, permitting the utilization of the surface for productive agricultural uses. Under such circumstances the right of the surface owner to an accommodation between the two estates may he shown, dependent, of course, upon the state of the evidence and the findings of the trier of the facts. Here, the trial court submitted the following special issue and accompanying instruction:
“Do you find from a preponderance of the evidence that Getty Oil Company’s erection of the pumping units in question at its Numbers One and Two Wells at such excess in height so that Plaintiff’s sprinkler system will not pass over the same constituted a use of the surface of the land in question in a manner which is not reasonably necessary?
“In answering the foregoing Special Issue, you are instructed that a determination of whether the erection of such pumping units by Getty Oil Company constitutes a use of the surface of the land in question in a manner which is not reasonably necessary involves weighing the degree of harm or inconvenience, if any, such pumping units cause to John H. Jones against the utility, if any, of such pumping units to Getty Oil Company and the suitability of other measures, if any, which would substantially serve the purpose of such pumping units to Getty Oil Company at less or no inconvenience or harm, if any, to John H. Jones.”
We agree with the court of civil appeals that inclusion of the phrase “at such excess in height” in the issue was erroneous as a comment upon the weight of the evidence. Additionally, and as also recognized by the court of civil appeals, the accompanying instruction erroneously calls for a weighing of harm or inconvenience to Jones against the considerations pertaining to Getty. This is not the proper test, particularly in the suggestion that inconvenience to Jones may be a controlling element. There must be a determination that under all the circumstances the use of the surface by Getty in the manner under attack is not reasonably necessary. The burden of this proof is upon Jones, the surface owner. Cf. Humble Oil & Refining Co. v. Williams, 420 S.W.2d 133 (Tex.Sup.1967). Jones sought to discharge this burden by showing that the use which Getty is making of the surface is not reasonably necessary because of non-interfering and reasonable ways and means of producing the minerals that are available to Getty, the use of which will obviate the abandonment by Jones of his existing use of the surface, and that the alternatives available to Jones would be impractical and unreasonable under all the conditions. These are the elements to be considered by the trier of facts and the jury should be so instructed in resolving the issue of the reasonable necessity of the surface use by Getty, the mineral lessee.
We further hold, as urged by Getty, that in event it is ruled that Getty is making an unreasonable surface use, Getty will have the right to install non-interfering pumping units; and in such event Getty will not be liable in damages beyond the decrease in the value of the use of the land from the time the interfering pumps were installed to the time of their removal.
The judgment of the court of civil appeals is affirmed.