                                  NO. 07-00-0225-CV

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL D

                                JANUARY 16, 2002
                         ______________________________

                                  H.B. TAYLOR, JR,

                                                      Appellant

                                           v.

                             BRIGHAM OIL & GAS, L.P.,
                          BRIGHAM LAND MANAGEMENT,
                         and VERITAS GEOPHYSICAL, LTD.,

                                               Appellees
                       _________________________________

           FROM THE 31ST DISTRICT COURT FOR WHEELER COUNTY;

                NO. 10,341; HON. STEVEN R. EMMERT, PRESIDING
                       _______________________________

Before BOYD, C.J., QUINN and REAVIS, JJ.

      H.B. Taylor, Jr. (Taylor), appeals from a final summary judgment entered in favor

of Brigham Oil and Gas, L.P., and Brigham Land Management (collectively referred to as

Brigham) and Veritas Geophysical, Ltd. (Veritas). The dispute arose from entry by Veritas

onto land, the surface of which Taylor owned. Veritas so entered the premises to conduct

seismic exploration on behalf of Brigham. The three points of error before us involve 1)

the authority to enter upon the lands, 2) unreasonably exceeding the extent of the
permission or the commission of negligence once entry was gained, and 3) punitive

damages.1 We affirm the judgment.

                                              Background

        Brigham and Veritas sued Taylor for declaratory and injunctive relief. Taylor had

leased the land in question for mineral exploration. Brigham obtained permission from a

minority working interest owner to conduct seismic exploration upon the property and

engaged Veritas to perform the work. However, Taylor refused them entry, threatening to

meet them with a shotgun. Thus, Brigham and Veritas sued.

        Upon joining issue, Taylor counterclaimed for damages. By that time, Veritas had

entered upon the realty and conducted the operations desired. According to Taylor,

however, the exploration encroached upon more of the surface than was reasonably

necessary. So too did Taylor allege that Veritas not only negligently damaged portions of

the surface estate but did so with malice. Brigham and Veritas subsequently moved for

summary judgment, contending that 1) it had a right to enter the property to conduct

seismic operations and 2) Taylor had no evidence evincing that they breached any duty

owed him or acted with malice. The trial court agreed, granted the motion, and entered

summary judgment in favor of Brigham and Veritas.

                                         Points One and Two

        Though Taylor contended below that neither Brigham nor Veritas had permission

to enter, he modifies his argument on appeal. Through point one, he now posits that the



        1
          A fourth ground concerned the entitlement of Brigham and Veritas to attorney’s fees. That particular
claim , however, was the subject of a notice to non-suit. Thus, it is not before us, and we need not consider
it.

                                                      2
extent of their authority did not include the right to traverse the surface estate more than

was reasonably necessary or to negligently damage the surface estate.2 Moreover, his

second point covers the same subject. That is, through it, he believes that he presented

sufficient evidence to create an issue of fact regarding whether the entities acted

unreasonably. Given the similarity between the two issues, we address them together and,

upon doing so, overrule them.

        Standard of Review

        The standard of review applicable to no evidence summary judgments is well-

settled. We find it sufficient to merely cite the litigants to Kimber v. Sideris, 8 S.W.3d 672,

675 (Tex. App. – Amarillo 1999, no pet.).

        Furthermore, to the extent that one has a right to enter upon the surface estate to

explore for oil and gas, the right is not necessarily absolute. Unless the parties agree

otherwise, the entity performing the exploration may not commit negligence nor use more

of the surface than reasonably necessary. Humble Oil & Refining Co. v. Williams, 420

S.W.2d 133, 134 (Tex. 1967); Oryx Energy Co. v. Shelton, 942 S.W.2d 637, 641 (Tex

App.--Tyler 1996, no writ). Yet, evidence that damage occurred to the surface while

exploring for minerals alone is not evidence of negligence or unreasonably excessive use.

This is so because of the nature of the estates involved and the correlative rights and

liabilities accompanying them.




        2
          Taylor may have altered his argument because he adm itted, via responses to request for admissions,
that “Brigham had the right to enter the land for the purpose of conducting seismic or geographical tests . .
. .” And, alth ough this admission does not encompass the authority of Veritas to enter the premises, Taylor
does not argue on appeal that Veritas lacked such authority. Again, he merely asserts that it could not act
unre aso nab ly in cond ucting the opera tions.

                                                     3
       The execution of a mineral lease not only severs the minerals from the surface but

also creates dominant and servient estates. The entity that owns the minerals enjoys the

dominant estate. Tarrant County Water Control & Improv. Dist. v. Haupt, Inc., 854 S.W.2d

909, 911 (Tex. 1993) (stating that the mineral estate is the dominant estate). Furthermore,

ownership of the dominant estate carries with it the right to enter and extract the minerals

and “all other such incidents thereto as are necessary to be used for getting and enjoying”

the minerals. Id. And, incident to the right to extract is the right to explore. Id. More

importantly, if in pursuing these rights, the servient estate is susceptible to use in only one

manner, then the owner of the dominant estate may pursue that use irrespective of

whether it results in damage to the surface. Id.; Getty Oil Co. v. Jones, 470 S.W.2d 618,

622 (Tex. 1971). In other words, if particular damage to the surface estate cannot

reasonably be avoided in legitimately pursuing the rights of the dominant estate, the owner

of the dominant estate is not liable for the damage.

       Thus, the mere fact of damage to the surface does not evince unreasonable

conduct. See Ball v. Dillard, 602 S.W.2d 521, 523 (Tex. 1980). Instead, it is encumbent

upon the surface owner to establish that the dominant estate owner failed to use

reasonable care in pursuing its rights or that the rights could have been pursued through

reasonable alternate means sufficient to achieve the goal desired but without the damage.

Tarrant County Water Control & Improv. Dist. v. Haupt, Inc., 854 S.W.2d at 91. Simply put,

the servient estate owner must prove that its opponent failed to act reasonably given the

correlative rights and liabilities involved.




                                               4
        Application of Standard

        Here, Taylor alleges that Brigham and Veritas were unreasonable in the manner in

which they performed the seismic work. This is allegedly so because in using the

equipment they did (vibraseisors) and the manner in which they used it, they purportedly

traversed 16 miles of surface land as opposed to four, drove over the contours of each

canyon, removed or damaged 75 to 80 feet of fencing, created “unordinary ruts,” cut grass

and other plant life off of hillsides which caused “[c]onsiderable erosion,” and “cut the top

off” of hills ‘they had gone up.’” Additionally, the damage caused by this round of seismic

exploration was greater than that caused previously, according to Taylor. Yet, aside from

the general allegation that three dimensional seismic exploration was performed and that

vibraseisors were utilized, no evidence appears of record describing what three

dimensional seismic exploration reasonably entails. Nor does evidence appear illustrating

the extent of the goals sought to be achieved through the exploration, what effort was

reasonably necessary to achieve them, whether they could have been achieved through

alternate, reasonable means which would not have resulted in any of the alleged damage

described above, that the damage allegedly committed was not the reasonable result of

the activities undertaken, or that the acts of either Brigham or Veritas were unreasonable.3




        3
          To the extent that Taylor opined that the “damage done [by the seismic operations at issue was]
greater than that done during previous seismic operations” and that the damage was “clearly m ore extensive
than dam age done by other seism ic operation s w hich [he was] fam iliar” does not fill the vo id. Aside from such
statem ents being little m ore than con clusory opinion lac king prob ative va lue, Cox v. B ancoklahoma Agri-
Service Corp., 641 S.W .2d 400, 402 (Tex. App.–Am arillo 1982, no writ) (holding that summ ary judgment
evidence m ust be in a form adm issible at trial and state fact as opposed to subjective opinion and conclusion),
nothing illustrates the nature and extent of the pre vious exp loration s or th eir reason ablenes s. W ithout such
evidence, one cannot reasonably compare them with the exploration at bar to determine whether an issue of
fact exists rega rding the reaso nab leness o f the exploration at bar.

                                                        5
        Simply put, all we have before us is evidence of the purported damage arising from

the activities of Brigham and Veritas, and as previously mentioned, proof of damage is not

evidence of unreasonable care or conduct. And, because there exists no evidence

illustrating unreasonable care or conduct on the parts of Brigham or Veritas, the trial court

was authorized to grant summary judgment on that particular ground (as requested by the

two companies). That is, it was entitled to grant summary judgment upon Taylor’s claim

of negligence and unreasonably excessive use of the surface estate.4

        Accordingly, we affirm the summary judgment.



                                                                              Brian Quinn
                                                                                 Justice


Do not publish.




        4
         Because the trial court was so authorized, no actionable misconduct has been established upon
which to asses s pu nitive da m age s. Thus, we need not consider Taylor’s third and last point of error involving
whether he pre sente d evidence suffic ient to c reate an issue of fact regarding his entitlement to such damages.

                                                        6
