The Use of Water by Mineral Lessees

If there has been a severance of the surface estate and the mineral estate, and there has been no express statement regarding which estate is to own the water which may be produced from the lands, the Texas Supreme Court has held that water underlying the surface is owned by the owner of the surface estate. In Fleming Foundation v. Texaco,1 the Amarillo court held a reservation of oil, gas and other minerals in a deed specifically does not reserve subsurface water, and that the subsurface water is incident and belongs to the surface estate.2 The Texas Supreme Court, in Sun Oil Company v. Whitaker,3 cited Fleming4 in reasoning that using water would not be restricted merely to primary recovery of oil, but also would extend to secondary or pressurization matters. The Court stated:

Courts have held waterflood projects to be reasonably necessary operations under oil and gas leases.5

The later case of Robinson v. Robbins Petroleum,6 established that the mineral content of the water did not determine whether the water was a mineral, and therefore, salt water, and potable water, belonged to the surface estate.

Using water by the mineral estate owner, to drill, generally follows from the principal that the owner of the mineral estate, as the owner of the dominant estate, may use so much of the surface estate as is reasonably necessary to develop the mineral estate. The Supreme Court has stated “… the owner-operator of the lease has the right to use so much of the land, both surface and subsurface, as is reasonably necessary to comply with the terms of the lease contract and to carry out the purposes and intentions of the parties.”7


  1. 337 S.W.2d 846 (Tex.Civ.App. — Amarillo, 1960) 13 Oil & Gas Rep. 527 (writ ref’d n.r.e., reh. den., 1961).
  2. Fleming Foundation, 852.
  3. 483 S.W.2d 808 (Tex. 1972); 42 Oil & Gas Rep. 256.
  4. 483 S.W. 2d 808, 811.
  5. Sun Oil Companyv. Whitaker, 811, citing, inter alia, Carroll v. Roger Lacy, Inc., 402 S.W.2d 307 (Tex. Civ. App. 1966, writ ref’d, n.r.e.); Gulf Oil Co. v. Walton, 317 S.W.2d 260 (Tex. Civ. App. 1958, no writ hist.); Tidewater Oil Co. v. Penix, 223 F. Supp. 215 (U.S.D. C. Okla. 1963); Utilities Production Corp. v. Carter Oil Co., 2 F. Supp. 81 (U.S.D.C. Okla. 1933).
  6. 501 S.W.2d 865 (Tex. 1973); 46 Oil & Gas Rep. 348.
  7.  Brown v. Lundell, 162 Tex. 84; 344 S.W. 2d 863, 865; 14 Oil & Gas Rep. 611), citing Warren Petroleum Corp. v. Monzingo, 157 Texas 479, 304 S.W. 2d 362, 65 A.L.R. 2d 1352. See also, generally, Annotation, What Constitutes Reasonably Necessary Use Of The Surface Of The Leasehold By A Mineral Owner, Lessee, Or Driller Under An Oil And Gas Lease Or Drilling Contract, 53 A.L.R.3d 16 and Annotation, Construction Of Oil And Gas Lease Provision Giving Lessee Free Use Of Water From Lessor’s Land, 23 A.L.R.3d 1434.