(dissenting).
I respectfully dissent.
The mineral lease under which Getty claims is dated January 15, 1948. Jones purchased the 635 acres in question in 1955, long after the execution of the lease. At the time of Jones’ purchase of the surface, there was a well equipped with a rod and beam pumping unit, a tank battery and heater treater on the land. After his purchase, Jones, a cotton farmer, drilled seven water wells for the irrigation of his crops. Initially, between 1956 and 1963, Jones ir*624rigated the land with hand-moved equipment, then later in the same period with power-moved equipment. Still later, in 1965, he installed a self-propelled irrigation system consisting of 1300 feet of pipe mounted seven feet above the ground which rotate automatically from pivot points. The only labor thus involved is the moving of the unit from one pivot point to another.
In January, 1968, Getty completed two more producing wells on the land, both requiring pumping units. One of the units extends seventeen feet above the ground and the other extends thirty-four feet above the ground (at the top of the upstroke of the beam). These pumping units prevent the operation of Jones’ Valley Irrigation System.
Jones does not charge Getty with negligence or contest Getty’s right to determine the location of its oil wells or its right to install some type of pumping equipment. At the time the first well was drilled and a pumping unit installed, there was no question that Getty’s action in so doing was authorized under the terms of the lease. Jones bought this surface with full knowledge of the lease and the presence of the original pumping unit and the possibility of the drilling of additional wells which might also require pumping units. Now, by changing the nature of his surface operations, Jones seeks to alter the terms of the prior mineral lease and to impose additional burdens on the oil and gas lessee which are not imposed by the original oil and gas lease.
It is fundamental that by the oil and gas lease, Getty obtained the dominant estate. Getty has the right to the use of as much of the premises as is reasonably necessary to comply with the terms of the lease and to effectuate its purposes. Humble Oil & Refining Co. v. Williams, 420 S.W.2d 133 (Tex.Sup.1967); Brown v. Lundell, 162 Tex. 84, 344 S.W.2d 863 (1961); Warren Petroleum Corp. v. Monzingo, 157 Tex. 479, 304 S.W.2d 362, 65 A.L.R.2d 1352 (1957); Warren Petroleum Corp. v. Martin, 153 Tex. 465, 271 S.W.2d 410 (1954). There is no contention by Jones in this case that Getty is “using more land than necessary” to effectuate the purposes of the lease.
There is no express provision in the lease requiring that pumping units or other structures be placed in cellars beneath the top of the ground. Indeed, the lease specifically and expressly provides to the contrary. The oil, gas and mineral lease here involved is as follows:
“ * * * grants, leases and lets, exclusively unto lessee the following described land in Gaines County, Texas: [describing W/2 Sec. 4, less 5 acres] and any and all lands or rights and interests in land owned or claimed by lessor adjacent or contiguous to the land above described.”
The foregoing grant of land is modified only by a purpose clause as follows:
“ * * * for the purpose of investigating, exploring, 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 deals expressly with the question of the horizontal and vertical locations of Getty’s equipment and installations, as follows:
“ * * * when required by Lessor, Lessee will bury all pipelines below ordinary plow depth, and no well shall be drilled within two hundred (200) feet of any residence or barn now on said land without Lessor’s consent.”
This case is simple. Getty claims the right to place pumping units on the top of its well sites to a height necessary to effectuate the purposes of its lease. Jones claims a right to come over the top of the *625well site with his irrigation equipment at a point about seven feet above the ground. The two claimed rights cannot exist simultaneously. By the terms of the lease, Getty has the right to utilize the air space to a height above its well sites as is reasonably necessary to effectuate the purposes of the oil and gas lease.
The only specific provision of the lease requiring the lessee to bury equipment provides that the lessee must buy all pipe lines below ordinary plow depth when required by the lessor. To hold that roads, tanks, pumping units, power stations, telephone lines, houses for employees and other structures are, or might be, required to be buried by this clause or by the purpose clause is to give the lease an unreasonably strained construction. Here the parties dealt expressly with the subject of what, if any, of Getty’s equipment must be buried below the surface. These express provisions require application of the principles of law stated in Freeport Sulphur Co. v. American Sulphur Royalty Co., 117 Tex. 439, 6 S.W.2d 1039:
“Implied covenants can only be justified upon the ground of legal necessity. Such a necessity may arise out of the terms of the contract or out of the substance thereof. One absolutely necessary to the operation of the contract and the effectuation of its purpose is necessarily implied whether inferable from any particular words or not. It is not enough to say it is necessary to make the contract fair, or that it ought to have contained a stipulation which is not found in it, or that, without such covenant, it would be improvident or unwise or would operate unjustly; for men have the right to make such contracts. Accordingly courts hesitate to read into contracts anything by way of implication, and never do it except upon grounds of obvious necessity.”
Further, it is elementary that an express stipulation upon a matter excludes the possibility of an implication upon the same subject.
This Court should not rewrite the oil and gas lease which was of record when Jones purchased the property. The majority is, in the face of express language, reading into the lease an implied covenant requiring Getty to alter its operations at its expense to accommodate Jones in order that the latter may operate his farm more efficiently whenever and wherever the uses of the surface might change. To read the lease now, 22 years after the document was executed, in this manner is contrary to, rather than in accord with, the intention of the original parties to the agreement. Warren Petroleum Corp. v. Monzingo, supra. In Monzingo, the Court refused to imply an obligation upon the lessee to restore the surface of the leased premises to its original condition after expiration of a lease: “Admittedly the lease contained no such provision and one is not to be read into the contract by implication.” 157 Tex. at 481, 304 S.W.2d at 363.
The majority opinion holds that testimony that pumping units could be installed in a cellar 24 feet below the top of the surface raises a fact issue as to how much air space above the top of the surface may be occupied by the oil and gas lessee’s equipment which is being used to produce oil from the well. Such a holding would permit a jury to find that pumping units (and other oil and gas development and production equipment) must be located below the surface of the earth, despite the express provisions of the oil and gas lease and the holdings of our courts, thus depriving the oil and gas lessee of its right to occupy and use the surface for its oil and gas operations. See Warren Petroleum Corp. v. Martin, supra; Warren Petroleum Corp. v. Monzingo, supra; Humble Oil and Refining Co. v. Williams, supra; Texas Co. v. Daugherty, 107 Tex. 226, 176 S.W. 717 (1915); Gregg v. Caldwell-Guadalupe Pick-Up Stations, 286 S.W. 1083 (Tex.Comm.App.1926, holding approved); Stradley v. Magnolia Petroleum Co., 155 S.W.2d 649 (Tex.Civ.App.—1941, writ ref’d) ; Trinity Production Co. v. Bennett, 258 S.W.2d 160 *626(Tex.Civ.App.—1953, writ ref’d n.r.e.); Sinclair Prairie Oil Co. v. Perry, 191 S.W.2d 484 (Tex.Civ.App.—1945, no writ); Baker v. Davis, 211 S.W.2d 246 (Tex.Civ.App.—1948, no writ); Grimes v. Goodman Drilling Co., 216 S.W. 202 (Tex.Civ.App.—1919, writ dism’d); Placid Oil Co. v. Lee, 243 S. W.2d 860 (Tex.Civ.App.—1951, no writ); Pitzer & West v. Williamson, 159 S.W.2d 181 (Tex.Civ.App.—1942, writ dism’d); Miller v. Crown Central Petroleum Corp., 309 S.W.2d 876 (Tex.Civ.App.—1958, no writ); Parker v. Texas Co., 326 S.W.2d 579 (Tex.Civ.App.—1959, writ ref’d n.r.e.); Cozart v. Crenshaw, 299 S.W. 499 (Tex.Civ.App.—1927, no writ); and Gulf Oil Corp. v. Walton, 317 S.W.2d 260 (Tex.Civ.App.—1958, no writ).
It is difficult to believe that this Court would hold that such testimony should render useless the express grant in the oil and gas and disregard prior court decisions. The oil and gas lease becomes a mere letter in the sand, to be washed away by the tidal wave which will be caused by the majority holding. If the majority is correct, then the lease does not mean what it says; the oil and gas lessee has the right to use the surface of the land and place the development and production equipment “thereon.”
If the irrigation wells on Jones’ land go dry and the best surface use becomes grazing cattle on the land, would this Court require the lessee to raise entrenched pumping units to avoid the danger of cattle falling into the hole or to fence around the units? I think not. Jones v. Nafco Oil and Gas, Inc., 380 S.W.2d 570 (Tex.Sup.1964); Warren Petroleum Corp. v. Martin, supra.
It should also be noted that the Court’s opinion allows Jones to have his cake and eat it too. He purchased the land in question from the original lessor subject to an oil and gas lease, and no doubt paid less for the land than if he had bought the full fee title. Now the majority allows him to recover damages because the lessee is using the land in such a way as to interfere with his farming operations. Further, the majority allows him to require the lessee to bury his equipment, thereby giving him a more valuable estate than the one he originally contracted to buy. The majority opinion, in effect, makes the dominant estate the servient estate and the servient estate the dominant estate.
Even if one agrees with the rationale of the majority, there is no reason or authority for requiring the lessee to bear the cost of burying the equipment when the only benefit inures to the lessor or surface owner.
The majority says:
“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.” [Emphasis added.]
We said in Brown v. Lundell, 162 Tex. 84, 344 S.W.2d 863, at 866:
“We further held that since the lessee was the owner of the dominant estate he had the right to use so much of the premises as was reasonably necessary to the exclusion of the lessor in order to carry out the purposes of the mineral grant, but even so that right must be reasonably exercised with due regard to the rights of the owner of the surface.” [Emphasis added.]
We then held, at 867:
“The ultimate issue was whether Brown was negligent in the way and manner in which he disposed of the salt water.” [Emphasis added.]
In Humble Oil and Refining Co. v. Williams, 420 S.W.2d 133, at 134 (Tex.Sup.1967), we said:
“A person who seeks to recover from the lessee for damages to the surface has *627the burden of alleging and proving either specific acts of negligence or that more of the land was used by the lessee than was reasonably necessary. Warren Petroleum Corp. v. Monzingo * * *; Robinson Drilling Co. v. Moses, Tex.Civ.App.1953, 256 S.W.2d 650, no writ; Finder v. Stanford, Tex.Civ.App.1961, 351 S.W.2d 289, no writ.”
The majority recognizes that 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. Jones does not contend that Getty is using more surface than necessary.
There is no evidence in this record that the use of the beam-type unit was not reasonably necessary to produce these wells. No one complains about the height of the units from the base to the top. Thus, the vertical space occupied immediately above the well is admittedly not excessive. Jones is contending that Getty, though free from negligence, is liable for damages, and should be forced to bury its equipment at Getty’s expense, to permit Jones to employ a method of irrigation that can pass over the well site. This Court is rewriting the oil and gas lease covering the land subsequently purchased by Jones, simply because of inconvenience to Jones.
Prior decisions have contained statements that the oil and gas lessee and the lessor or surface owner must exercise its right with due regard for the rights of the other. None of the decisions allows recovery of damages unless the contract requires payment of damages, Meyer v. Cox, 252 S.W.2d 207 (Tex.Civ.App.—1952, writ ref’d), absent a showing that the owner of the dominant estate has exercised its rights in a negligent manner or has used more land than is reasonably necessary to effectuate the purposes of the lease. Even if the majority is of the opinion that the injunction requiring the lessee to employ a different manner of pumping its wells is justified, there is no basis in law for allowing the surface owner to recover damages. Injunctions have been granted or denied under the “due regard” theory, but no case has been cited, nor have I been able to find one, which would allow recovery of damages on this theory.
I agree with the dissenting opinion filed in the Court of Civil Appeals, 458 S.W. 2d at 97, and would affirm the judgment of the trial court that Getty’s use of the land is reasonable as a matter of law.
POPE, J., joins in this dissent.