DANIEL, Justice
(dissenting).
I respectfully dissent. I adhere to that portion of the majority opinion which restates the general rule that, unless otherwise provided by contractual provisions, an oil and gas lessee has an implied right or easement to make such use of underground water as may be reasonably necessary for ordinary and customary primary drilling and producing operations. However, I completely disagree with the majority’s extension of this “implied easement” doctrine so as to permit Sun also to take, consume and deplete an enormously greater quantity of water for a vastly different repressur-ing and secondary recovery process in the face of jury findings that the parties to the lease did not contemplate or mutually intend such use; that it would materially affect the supply which the surface owner could produce by wells for irrigation of the surface; that such use was not reasonably necessary; and that it will substantially reduce the value of the surface for agricultural purposes.
The majority fails to consider the vital distinction between the occupancy and use of the surface, including water, for ordinary drilling and production operations which do not substantially consume, diminish or destroy the surface estate and the relatively new, extraordinary and far more extensive taking of fresh water for injection into oil sands in a manner which substantially destroys and diminishes the surface estate. Water flooding is not an ordinary primary production method; it is an extraordinary and extraneous medium [813]*813usually employed after ordinary primary operations have terminated.1
Underground water is part of the surface estate, and unless severed by reservation or conveyance, it belongs to the owner of the surface.2 Whitaker, purchaser of the surface estate in 1948, had drilled wells to the Ogallala formation, a closed and isolated underground fresh water reservoir, encountered at a depth of approximately 200 feet, and this is his only source of water for domestic and irrigation purposes. Whitaker was using the water for agricultural irrigation for 5 years before Sun sought to use the same source of water for water flooding its oil sand.
Sun, which purchased an oil and gas lease from Whitaker’s grantor in 1946, completed eight producing oil wells on the Whitaker 267 acres in the San Andres sand. The record reflects no objection to Sun’s use of water for the ordinary and customary primary drilling and producing operations, which were conducted during the initial 18 years of operations under the lease at the surface well sites and through the well bores by open flow and later by pumping. In 1965, when the primary production from these wells declined because of pressure attrition, Sun sought to increase the underground pressure by water flooding the San Andres sand through two injection wells to be drilled on the Whitaker tract. This much of the program was approved by an order of the Railroad Commission, but the order did not undertake to state or approve the source of the water which was to be injected. Although water from other sources was admittedly available by purchase, Sun proceeded to drill a 200 foot well into the Ogallala fresh water sand on Whitaker’s land, from which it pumps water at the rate of not to exceed 100,000 gallons per day without the consent of or compensation to Whitaker. The fresh water is injected by pressure pumps through the two injection wells into the San Andres sand at an average depth of 4770 feet, where it mixes with the salt water and increases the reservoir pressure. According to Sun, the use of this “extraneous medium” will cause the wells on the Whitaker tract to yield an additional one million barrels of oil worth about $3,000,000. For this purpose, Sun proposes to consume a total of 4,200,000 barrels of Whitaker’s Ogallala water, which will shorten the life of Whitaker’s water supply by at least eight years. Whitaker owns only the surface estate and therefore receives no royalty from the oil production.
Sun contends that, regardless of the effect upon the surface estate, it has the implied and express right under its lease to take and consume this portion of the surface estate without any compensation to [814]*814the surface owner, and that it is entitled to an injunction restraining Whitaker from interfering with its taking of water from the Ogallala formation to increase its production by this secondary recovery process.
Contract Provisions
Sun correctly argues that, so long as no violation of law is involved, the parties to its lease were free to contract as they pleased; its lessor could have granted Sun the right to consume and deplete the entire Ogallala water sand and the entire surface estate of the Gann-Whitaker tract for secondary water flooding and repressuring if the lessor had so elected to contract or convey. On the other hand, any such right to destroy or substantially diminish and consume the surface estate should be clearly spelled out in the contract and not be implied from general provisions relating to substantially non-consuming and non-destructive occupancy and uses of the surface. In another context we said as much in Acker v. Guinn, 464 S.W.2d 348 (Tex.1971) as follows:
“The parties to a mineral lease or deed usually think of the mineral estate as including valuable substances that are removed from the ground by means of wells or mine shafts. This estate is dominant, of course, and its 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 or grazing purposes will be destroyed or substantially impaired. Unless the contrary intention is affirmatively and fairly expressed, therefore, a grant or reservation of ‘minerals’ or ‘mineral rights’ should not be construed to include a substance that must be removed by methods that will, in effect, consume or deplete the surface estate. See Clark, Uranium Problems, 18 Tex. B.J. 505.” 464 S.W.2d at 352.
The fact that commercial production of limestone would destroy the surface for agricultural and grazing purposes was persuasive in this Court’s decision that a devise of “the mineral rights” would not be construed to include limestone, “although technically a mineral.” Heinatz v. Allen, 147 Tex. 512, 217 S.W.2d 994 (1949). See also Atwood v. Rodman, 355 S.W.2d 206 (Tex.Civ.App.1962, writ ref. n. r. e.) and other cases cited in Acker v. Guinn, supra. By analogy, unless the contrary intention is affirmatively and fairly expressed, a mineral lease should not be construed by implication to include the right to take and destroy enormous amounts of fresh water (over and above that customarily used in ordinary primary drilling and production operations) for secondary recovery processes that will, in effect, consume or substantially deplete the surface estate. No implication should be indulged that the lessor intended the dominant use and occupancy easement to include the right to destroy or substantially diminish the utility of the surface for agriculture purposes, all of which are dependent upon irrigation wells producing from the Ogallala sand.
By the same token, the term “all operations hereunder” in the “free wood and water” clause, being undefined and having no fixed meaning, while technically broad enough to cover water flooding, should not be interpreted as covering such secondary recovery processes which would consume or substantially diminish the fresh water supply and hence the utility of the surface for agricultural purposes. This is especially true when all specific references to operations in the lease refer only to primary type drilling and production operations and when there are specific provisions in the lease for the protection of the use of the surface for agricultural purposes, such as the prohibition of the use of water from lessor’s wells and the provision that lessee “will bury pipe lines below ordinary plow depth and pay damage caused by Lessee’s operations to growing crops.”
In this connection, it should be mentioned that the lease on the Whitaker tract was written on a form furnished by the lessee which had the name “SUN OIL [815]*815COMPANY” printed thereon as Lessee. It has been held that the “language of an oil and gas lease is generally regarded as that of the lessee” and “it appears to be the settled rule in this state that of two or more equally reasonable constructions of which the language of an oil and gas lease is susceptible the one more favorable to the lessor will be allowed to prevail.” Zeppa v. Houston Oil Co. of Texas, 113 S.W.2d 612 (Tex.Civ.App.1938, writ ref.).
If Sun had contemplated or intended for its lease to cover free use of water for secondary repressuring of the subsurface oil sands, it could have made this known to its lessor and so contracted in specific language, by use of a provision which the record shows to have been placed in Sun leases on other tracts as early as 1947, in the following words:
“Lessee shall have free use of oil, gas, coal and water from said land except water from Lessor’s wells for all operations hereunder, including repressuring, pressure maintenance, cycling, and secondary recovery operations . . .”3
In my opinion, the trial court, based upon the jury findings, and the Court of Civil Appeals have correctly decided against Sun’s claim to an express grant of the right to take the fresh water under Whitaker’s land for repressuring the San Andres sand by water flooding. Since the majority states that “We need not decide whether the opinion of the Court of Civil Appeals is sound” in as much as it is satisfied that Sun has “the implied right to free use of so much of the water in question as may be reasonably necessary to produce the oil from its oil wells,” I will shorten-this phase of my dissent by simply saying that I agree that the opinion of the Court of Civil Appeals is sound, except as to its approval of exemplary damages. Both the present opinion of the Eastland Court (457 S.W.2d 96) and the earlier opinion of the Amarillo Court of Civil Appeals, 412 S.W. 2d 680 (Tex.Civ.App.1967, affirmed on other grounds, 424 S.W.2d 216, 1968), denying Sun’s application for a temporary injunction, are well reasoned. I refer to them for details on the evidence and law relating to the ambiguity which results when an attempt is made to apply this otherwise unambiguous lease contract to the subject matter of this suit; the effect of absence of any specific provision in the lease relating to secondary recovery by water flooding; the specific provisions for protection of lessor’s wells and growing crops; that water flooding was not practiced in the west Texas area when the lease was signed in 1946; and other evidence which supports the jury findings to the effect that Sun’s extensive use of fresh water for secondary recovery by water flooding was not mutually contemplated or intended by the parties to the . 1946 lease.
The Kentucky case of Wiser Oil Company v. Conley, 346 S.W.2d 718 (Ky.1960) presented a similar fact situation, wherein the surface owner sought an injunction against the oil and gas lessee to prevent secondary recovery by water flooding and for damages to a coal seam retained by the landowner. The court approved the trial court’s findings of fact to the effect that such operation would cause substantial injury to the coal and to the surface which was regularly farmed; and that water flooding was not in use in Kentucky at the time of the execution of the lease. The court held:
“There is a sound basis for the rule that a deed or lease of minerals carries with it the right to use as much of the surface, or other property, as may be reasonably necessary to exploit the minerals. We also are aware of the well-known concept that where the injury done to the property was of an anticipatory character, such a result would con[816]*816stitute damnum ■ absque injuria. But where, as here, there is no express release of damages and a new method of withdrawing oil is employed, which was not in the minds of the parties at the time the lease was executed and which will destroy or substantially damage the landowner’s remaining estates, principles of justice and humanity would require that reasonable compensation be paid the landowner for the devastation wrought.” 346 S.W.2d at 721.
Implied Easement
For the same reasons stated above with reference to the alleged express grant, it should be held that Sun is not entitled under the general grant of the minerals to an implied right to take, consume, and deplete the fresh water sand on the Whitaker land without compensation to Whitaker. The holding of an implied grant, irrespective of the existence or terms of an express grant, is far reaching, regressive, and without direct precedent since the days when all minerals were royal patrimonies owned by the sovereign crown or state. Perhaps a bit of history will demonstrate where we have been and the direction in which the law has traveled on the subject of dominant estates held by owners or lessees of severed minerals.
The rule in Texas that a severed mineral estate is dominant and the surface estate servient had its genesis in the Spanish law under which the King held separate ownership of all minerals under both private and public lands.4 As with all royal patrimonies, the sovereign’s separate and severed mineral ownership on private lands rendered the surface estate servient and subject to any use the King might find necessary to mine for and produce the minerals on or beneath the lands of his subjects. The Republic of Mexico and subsequently the Republic of Texas retained the law of sovereign ownership of mines and minerals under all lands.5 When the Republic of Texas adopted the common law in 1840, it specifically provided that it did not apply to “such laws as relate to the reservation of . . . salt springs, mines and minerals of every description made by the general and State governments,” and this was carried forward as the law of the new State when Texas became a member of the Union.6
It was during this period of State ownership of all minerals that the Supreme Court of Texas held in Cowan v. Harde-man, 26 Tex. 217 (1862), a dispute between individuals over Cowan’s mining and manufacture of salt from a spring located on land patented to Hardeman, that the State owned the salt and warned by dictum that the State’s “right to the minerals thus reserved carries with it the right to enter, dig and carry them away, and all other incidents thereto as are necessary to be used for getting and enjoying them.” A concurring judge agreed that Hardeman’s patent to the surface was valid but said: “In so far as concerns the use ... it may be avoided in part or in whole by the state in the exercise of its reserved right in the salt spring or minerals embraced within it. The state must have the easement of going upon the land for this purpose; and if to the full enjoyment of the right of the state it should become necessary to use the whole of the land, timber and water upon the tract, the right of the state to an ease[817]*817ment to that extent cannot, I apprehend, be questioned.” This was hut a restatement of the sovereign rights which were understood to accompany the previous “dominio radical” of the King in severed minerals.
By the Constitution of 1866, the State released and relinquished all mines and minerals to the owners of the soil.7 Subsequent court decisions, while recognizing the dominant easement of private owners or lessees of severed minerals, have gradually required more regard for the servient surface estate than was previously required under the “dominio radical” (ultimate or basic ownership) of the King or the sovereign state.8 None has followed Cowan, supra, by holding that the dominant mineral easement may be used to completely void, consume or destroy the surface estate. In recent years the implied right to surface occupancy and uses by mineral lessees have been limited to those uses which are “reasonably necessary” to effectuate the purposes of the lease, having “due regard to the rights of the owner of the surface [estate].” Humble Oil & Refining Co. v. Williams, 420 S.W.2d 133 (Tex.1967); Brown v. Lundell, 162 Tex. 84, 344 S.W.2d 863 (1961). A definite trend toward conciliation of conflicts and accommodation of both estates is evident in our court decisions and in the conduct between the lessees and surface owners. Getty Oil Company v. Jones, 470 S.W.2d 618 (Tex.1971); Acker v. Guinn, supra; Brown v. Lundell, supra; Sun Oil Company v. Whitaker, 412 S.W.2d 680 (Tex.Civ.App.1967), supra. In Getty it was said:
“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 estate by the oil and gas lessee. We now hold explicitly that the reasonably necessary limitation extends to the superadjacent airspace as well as to the lateral surface and subsurface of the land.” 470 S.W.2d p. 621.
This Court has led the way in working out accommodations which preserve unto the severed mineral owner or lessee a reasonable dominant easement for the production of his minerals while at the same time preserving a viable servient estate. This is particularly important in a State whose most productive resources are oil and agriculture, both of which depend heavily upon declining sources of water. Texas’ 177,221 oil wells produced more that 1.2 billion barrels of oil in 1970, with a value in excess of $4 billion, and with jobs furnished for nearly 100,000 people.9 Approximately 41% of these wells were producing with the aid of some type of secondary recovery process.10 Total farm income for 1969 was [818]*818in excess of $3.4 billion and furnished employment for nearly 300,000 persons.11 More than half of the total value of Texas crops is estimated to be produced through irrigation of 8,206,249 acres in 146 counties, which have a total of 83,115 irrigation wells.12 In addition, by 1967 there was an estimated 272,000 fresh water ponds, lakes and reservoirs of less than 200 acre-feet of storage capacity covering approximately 457,000 surface acres.13 Section 5.140 of the Texas Water Code permits these reservoirs to be constructed and the impounded water to be used for domestic and livestock purposes without obtaining permits from the Texas Water Rights Commission. The State has expressed its concern for conservation and protection of these small surface reservoirs 14 and the ground waters of the State through Acts of the Legislature.15
The majority opinion today applies directly to 4,200,000 barrels of fresh water to be taken without compensation to the owner of only one 267 acre irrigated farm, whose usefulness will be diminished and shortened for a period of at least eight years. However, the rationale of the opinion is so far reaching that it could be applied to any and all of the ground waters of the 8,206,249 acres now under irrigation which underlie acreage covered by similar oil and gas leases, if and when all or a substantial portion of such waters can be shown to be reasonably necessary for injection into a producing oil stratum for repressuring through a secondary water flooding process. The majority is establishing a precedent for untenable conflicts in which the dominant estate may not only properly occupy and use the surface and reasonable amounts of water for primary drilling and production operations but also completely consume and destroy the surface owners’ fresh water supply without compensation even if there is no express grant of free use of water for operations under the lease. No such right of total consumption of a fresh water supply and its destruction of surface uses for agricultural purposes should be implied in any oil and gas lease which is silent on the subject.16
[819]*819In view of this Court’s previous leadership in considering accommodations between dominant and servient estates, it is particularly regrettable that today this Court becomes the first to say that the dominant estate is once again so sovereign that it has the implied right to take, consume and destroy the fresh water supply of a surface owner for a secondary water flooding project without compensation. I have found no case in any jurisdiction which has heretofore made such a holding. Those cited by the majority certainly have not gone so far, although they contain broad dicta which is carried over from the 1862 case of Cowan v. Hardeman and the precedents it follows from both Spanish and English crown ownership cases.
For instance, the majority’s quotation from Guffey v. Stroud, 16 S.W.2d 527 (Tex.Com.App.1929) is pure dictum and the holding of the case is contrary to the point for which it is cited. That case involved no dispute as to water. It was a suit by the owner of a gas lease (Stroud) against the owner of an oil lease (Guffey) on the same tract of land to stop the oil lessee from using or wasting the gas in the process of drilling for oil. Judge Ocie Speer, writing for the Court, brushed aside the gas owner’s claim for waste of gas encountered in Guffey’s attempt to find oil, saying that Guffey’s “right to take the oil carried with it by implication the right to tap the gas pockets and to bring to the surface so much of the gas as was necessary in the proper drilling for oil,” adding that “it cannot be said that all use of, or interference with, the gas in place was wrongful as against defendant in error. The rule in Shylock’s case is not controlling.” However, it is quite important to note that Guffey’s oil well having turned out to be non-productive of oil but productive of gas, the court upheld the gas lessee’s injunction against Guffey and prevented him from producing any more of the gas. Sun, if the oil lessee in that case would probably argue that it had the implied right to use the gas for repressuring the oil sand, but the court held that the gas belonged exclusively to the gas lessee (Stroud) and that he was entitled to enjoin the oil lessee (Guffey) from further interfering with the gas.
Stradley v. Magnolia Petroleum Company, 155 S.W.2d 649 (Tex.Civ.App.1941 writ ref’d) related only to water used in ordinary primary drilling and production operations of the nature that is clearly recognized and approved by all decisions which have considered this ordinary type of water use. It did not involve secondary water flooding or any substantial depletion or diminishing of the water or the surface estate, and it was not so contended. It is authority, however, for considering along with other factors “the information of the grantor and grantee in order to ascertain the intention of the parties.” p. 652.
With due respect, three of the cases cited by the majority for the statement that “Courts have held waterflood projects to be reasonably necessary operations under oil and gas leases” do not so hold, and none of them involve fresh water flooding to the extent of depleting the surface owner’s supply for irrigation or alleged diminishment of the value of the surface estate. Carroll v. Roger Lacy, Inc., 402 S.W.2d 307 (Tex.Civ.App.1966, writ ref. n. r. e.) does not mention water flooding; it holds that the lessee under a “free wood and water” clause may pump the lessor’s pond dry while using the water in drilling for oil, a holding which this Court now impliedly approves. Gulf Oil Co. v. Walton, 317 S.W.2d 260 (Tex.Civ.App.1958, n. w. h.) was a suit by the surface owner to enjoin the oil lessee from constructing new roads over his ranch to a series of proposed injection wells to be drilled for water flooding purposes and to force the lessee to use abandoned wells for such purposes; the Court [820]*820held that the lessee had the right to make its own location of the injection wells and the access roads; no mention is made of the type or source of the water to be derived for such injections. Utilities Production Corp. v. Carter Oil Co., 2 F.Supp. 81 (N.D.Okl.1933) aff’d 72 F.2d 655 (10th Cir.1934), was' not a water flooding case; it involved only gas, and the Court simply held that gas produced with the oil could be returned to the sand for repressuring. Only Tidewater Oil Co. v. Penix, 223 F.Supp. 215 (E.D.Okl.1963) involved a dispute over the right to use fresh water from the leased premises for water flooding; the court held that the lessee had the implied right to make the uses complained of only after finding (at p. 217) that “no crops were growing on said land at the time” and that the surface owner “has suffered no damage by reason of the operations of Tidewater on the lease . . . and present or prospective value of the land did not depreciate in value because of said operations.”
Holt v. Southwest Antioch Sand Unit, Fifth Enlarged, 292 P.2d 998 (Okl.1955), from which the majority quotes one sentence, was a salt water flooding operation, which the court approved as within the implied rights of the lessee under a standard oil, gas and mineral lease. However, three sentences before the one quoted by the majority, the Oklahoma court was careful to say (at p. 1000):
“We need not and do not here consider whether or not different rules of law are applicable to fresh water recovered from a shallow structure and to salt water recovered from a relatively deep structure.”
Citation of the above case by the majority with apparent approval as to an equally extensive use of fresh water is unfortunate not only because of the determining effect which it gives to the decision in the present case, but because of the possible extent of the decision as to an implied right to use fresh water for repressuring the sands under other lands in a common formation. The Oklahoma court held that the salt water under the complaining surface owner’s land could be used to repres-sure the “common source of supply operated as a single operation with all lessees sharing equitably in the production from the whole.” Immediately following the sentence from this case quoted by the majority, the Oklahoma court said: “It makes no difference whether the oil was produced from plaintiff’s land or not by reason of the repressuring process.” It cites and quotes the Texas case of Stradley v. Magnolia Petroleum Co., supra, as its only authority for this holding. Obviously, until today this was an unwarranted extension of what Stradley actually held.
The Illinois case of Carter Oil Co. v. Dees, 340 Ill.App. 449, 92 N.E.2d 519 (1950), cited by the majority, lends scant support to the holding here. The Illinois court merely held that the lessee had the implied right to shut down one of four wells and use it for a gas injection process which would yield an ultimate recovery of more oil from the remaining three wells than would have been produced from all four wells without the gas pressuring process. The source of the gas to be used was not indicated, and the court specifically found (92 N.E. at p. 524) that the process resulted in “no factor of detriment, deprivation or pecuniary loss” to the plaintiff lessors.
Reasonable Necessity
The majority opinion says that the Getty test of reasonable necessity and with due regard to the uses being made by the surface owner is not applicable here because the only possible reasonable alternatives for secondary recovery water are not on the leased premises. While it is true that Getty involved only the leased premises, its rationale is not limited to reasonable alternatives located on the leased premises. In this day of unitizations, availability of fuel and water from other sources at economi[821]*821cally feasible costs, and customary field and industry practices of often purchasing secondary recovery water from other sources, the Getty rule should not be limited to alternatives involving only the leased premises in this and all future cases.17
In Getty we recognized, once again, that a severed mineral estate carries with it a dominant easement for the purposes of the mineral lease, but our opinions on original submission and rehearing should have dissipated any idea that the right of the owner of the mineral lease to use of the surface is absolute or unfettered. We not only reemphasized the limitations on the rights of the owner of the mineral lease to uses which are reasonably necessary and which are made with due regard for the rights of the surface owner, but we also held that the selection of a use which unduly interferes with existing uses by the surface owner, if there are reasonable alternatives available to the mineral lessee, will be held unreasonable and, consequently, not reasonably necessary to effectuate the purposes of the lease. The question is divided, therefore, into two parts: (1) Does Sun’s use of Ogallala water underlying Whitaker’s tract unduly interfere with Whitaker’s surface use? (2) Does Sun have a reasonable alternative?
The jury made three findings which have a material bearing on proper answers to the questions. In answer to Special Issue Nos. 3, 4 and 7, the jury found that: “ . . . the use of fresh water by Sun Oil Company for secondary recovery purposes from the well which it has drilled on said tract will materially affect the supply which the surface owner could produce by wells”; “ . . . it is not reasonably necessary for Sun Oil Company to use water from the Ogallala formation underlying the Whitaker farm to waterflood the L. D. Gann lease”; and “ . . . the proposed use of fresh water by Sun Oil Company for waterflood purposes will substantially devalue the farm owned by the Defendant Whitaker.” These fact findings are supported by probative evidence which may be summarized as follows: The Ogallala formation is a depletable and isolated underground reservoir in which the water is not replenished except by such surface water as may percolate down into the reservoir. It is the only source of water available to Whitaker for domestic and irrigation purposes, and the water was being so used by him before Sun entered upon its water-flood project. Sun proposes to produce from its single well and to consume 4,200,000 barrels of the water, which use will shorten the life of Whitaker’s water supply by at least eight years. This will cause a substantial decrease in the value of the land. Sun admitted that it “would be physically possible to purchase water to use in waterflooding the L. D. Gann lease involved in this case”, and one of its expert witnesses testified that in his opinion it would be economically feasible to purchase water for water flooding the lease; that in his opinion the cost would be about $42,000.00 for the necessary 4,200,000 barrels; and after paying for the water and the oil royalty there should be a net value of $2,000,000 in additional oil recovered from the water flooding project.
As to the Getty test of whether there are established practices in the industry which furnish a reasonable alternative for recovering the oil without the uncompensated diminishment of the water supply, agricultural use and value of Whitaker’s land, Sun’s witness testified that Pan American, Texaco, Skelly, and other operators in the area were buying their water in some instances for water flooding purposes. Further, Sun admitted that with respect to other lands underlaid with ground water deposits on which it holds leases with similar terms, it has purchased water for water flooding purposes from sources other than [822]*822the land covered by the lease for operations on a unitized basis, but not on a single lease basis. The record clearly reveals that Sun itself in some instances and other operators in the area sometimes employ the alternative of purchasing their secondary recovery water from sources other than the lands covered by their leases.
This evidence lends further support to our complimentary observation on motion for rehearing in Getty that the usual and customary practice of the oil and gas operators of this State is to take due consideration of the uses being made by the surface owners, and that this perhaps accounts for the relatively few reported cases of conflicts between the dominant and servient owners on the more than 378,000 oil and gas wells that have been drilled, operated and produced in this State. We have had but few cases before this Court where the lessee has sought to assert the dominance of its rights to the extent contended for by the lessee in Getty and by Sun in the present case. It remains to be seen whether the previous considerations and accommodations practiced by most operators toward surface owners will continue after what the majority has declared to be the law today.
In the future, landowners who learn about this decision can avoid some of its effect, if they so desire, by specifically prohibiting the use of fresh water for re-pressuring, pressure maintenance, cycling, and secondary recovery operations. However, owners of millions of acres of land on which the minerals heretofore have been severed, including over 7 million acres of Relinquishment Act lands, and those who now have outstanding Sun-Gann type leases, including those on University lands,18 will be confronted with the rationale of the majority opinion as long as it remains the controlling law on this subject.
In the present case, there was evidence of probative value in support of the existence of a reasonable alternative practiced by operators in the area by which Sun could obtain water at an economically feasible cost for the conduct of its secondary recovery operations without consuming Whitaker’s water and diminishing the value and utility of his surface without compensation, and this supports the jury finding that “it is not reasonably necessary for Sun Oil Company to use water from the Ogallala formation underlying the Whitaker farm to waterflood the L. D. Gann lease.”
The jury findings compel the conclusion that Sun’s use of 4,200,000 barrels of the Ogallala water underlying the Whitaker tract (1) constitutes an undue interference with Whitaker’s reasonable use of the surface, and that (2) Sun has a reasonable alternative. The judgments of the courts below correctly denied Sun’s prayer for an injunction and correctly awarded injunc-tive relief and damages to Whitaker. However, the judgment for damages should be reformed so as to eliminate interest on the $431.00 for damage to growing crops, which Sun has paid into the registry of the court to be disbursed to Whitaker, and the award of $2500.00 for exemplary damages. The evidence does not support a conclusion that Sun’s production and use of the water in the waterflood project was, or is, “of a wanton and malicious nature, or, as sometimes stated, somewhat of a criminal or wanton nature.” Ware v. Paxton, 359 S.W.2d 897, 899 (Tex.1962). Whether Sun’s lease authorized free use of the water in the water-flood project was a question of first impression in this State, and continued production of the oil was manifestly justified considering that rights of royalty owners were also involved. I would reform the judgments of the courts below by reducing [823]*823the sum recovered by Whitaker to $9,667.-03, with interest thereon at the rate of 6% from April 30, 1969, the date of the trial court’s judgment, until paid.
GREENHILL, STEAKLEY and DEN-TON, JJ., join in this dissent.