Key Operating & Equipment, Inc. v. Will Hegar and Loree Hegar

DISSENTING OPINION ON REHEARING

For all of the following reasons, I respectfully dissent.1

“This is not an accommodation doctrine case.”

The majority attempts to resolve this case based upon the common law accommodation doctrine, which it holds applies to this case — a point which even the He-gars dispute.

Under Texas law, the dominant mineral estate has the right to reasonable use of the surface estate to produce minerals, but this right is to be exercised with due regard for the rights of the surface estate’s owner. Getty Oil Co. v. Jones, 470 S.W.2d 618, 621 (Tex.1971). This concept of “due *337reg…