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Click here for the full text of this decision FACTS:Floyd and Lloyd Davis own or lease the surface estate of a parcel of land in near Welch. Devon Energy Production Co. owns the mineral rights and operates the North Welch Unit there. The roads on the unit are non-compacted dirt. When the Davises irrigate their crops, the roads become muddy. In earlier years, the roads were paved, but the Davises plowed them under. Due to the Davises’ activities, Devon employees have at times been unable to access the company’s wells. Devon proposed to make the lease roads permanent by building them with caliche. When the Davises opposed this, Devon filed for declaratory and injunctive relief. The Davises defended by first arguing that Devon had fatally erred by not joining a necessary and indispensable party to the suit: the Myrtle Davis Trust, which owned a portion of the surface rights of the unit, and who leased it to the Davises. Also at trial, the Davises introduced letters from each of Devon’s successors in interest describing present and future road construction on the unit. The trial court ruled for Devon, declaring that the proposed use by Devon was reasonable and necessary, and that the use of caliche was not unreasonable. The trial court enjoined the Davises from hindering or interfering with Devon’s oilfield operations, including the construction of permanent caliche roads. HOLDING:Affirmed. The court rules the Myrtle Davis Trust was not a necessary and indispensable party. Devon’s suit is one for injunctive relief against those who interfered with Devon’s rights under the mineral lease, and those people were the Davises, not the trust. The court adds that the trust is free to pursue its own recourse against Devon if it concludes that Devon acted improperly; a judgment in this action will not prejudice that right. The court then examines the two letters upon which the Davises rely. A 1991 letter from Chevron to the Davises discusses roads on the unit. Chevron stated it wanted 10-foot roads instead of 20-foot roads, and that dirt roads “are preferred.” The court disagrees that this statement amounts to a prohibition against the use of caliche. At best, the statement reflected Chevron’s desire for 10-foot dirt roads, but that they may have preferred dirt roads of that size falls short of a promise to only construct roads of that size and type forever. “In short, that one may”prefer’ coffee over tea does not mean he can never drink tea. Similarly, that Chevron may”prefer’ narrow dirt roads does not alone contractually bar it (or its successors) from building wider permanent roads out of caliche. At the very least, nothing in the June 1991 letter evinces an intent to so restrict the company.” Similarly, a 1997 letter to the Davises from Pennzoil Exploration and Production Company said nothing about the use of caliche or the making of caliche roads. In fact, the letter did not address road building at all. The court’s next issue addresses whether the evidence was sufficient to support a finding that the use of caliche was reasonably necessary. The court acknowledges that under Getty Oil Co. v. Jones, 470 S.W.2d 618 (Tex. 1971), the mineral lease holder may use as much of the premises as is reasonably necessary to produce and remove the minerals, but that it must do so with due regard for the rights of the surface owner. This right of accommodation, or alternative means doctrine, does not contemplate that the surface will be used by the lessee in a manner that destroys or substantially impairs its agricultural use; that is, not every impairment to the surface owner’s use of the surface is enough to trigger the doctrine. Rather, only when the lessee’s conduct destroys or substantially impairs the surface owner’s use of the surface does the question arise as to whether that conduct is reasonably necessary. In this case, there is some evidence that roads are essential to the oilfield operations by Devon, and that the roads in current use can become impassable after the Davises use their irrigation system. Furthermore, there is evidence that while caliche may be problematic to the Davises’ plow, there are ways around having that happen. The court says this is some evidence supporting the finding that building permanent, caliche roads is not unreasonable. As to the Davises’ claim of accommodation, there is no evidence indicating that construction of permanent caliche roads would destroy their ability to conduct a profitable farming operation. “And, though there exists some evidence suggesting that caliche may cause them problems, the trial court could have reasonably concluded, from the record before it, that any impairment had an insubstantial impact on the farming operations.” Finally, the court finds the evidence legally and factually sufficient to support the trial court’s finding that the Davises interfered with Devon’s production. The court cites numerous instances where Floyd Davis threatened physical violence on Devon employees, and vowed to actively oppose any road construction. OPINION:Quinn, J.; Quinn, Reavis and Campbell, JJ.

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