*1 REPUBLIC NATURAL GAS CO. v.
OKLAHOMA et al. Argued January 6, May 3, No. 134. 1948. Decided Rainey Robert M. and John F. argued Eberhardt for appellant. cause filed brief Robert C. Foulston was also of counsel.
Earl argued appellees. Pruet the cause for With him Q. Williamson, on the brief were Mac Attorney General Oklahoma, and Floyd Green. opinion delivered the Mr. Justice Frankfurter Court. appeal
This is an from a decision of the Supreme Oklahoma, Court of arising from an order of the State Corporation Commission which concerned the correl- drawn ative of owners of natural rights *2 source. common regulated has the of 1913,
Since Oklahoma extraction partly avoid gas, partly prevent natural to waste and to drainage producers sharing between same excessive as the pool. provided take legislation might The that owners proportionate from a amounts of to gas common source respective but more wells, natural flow their the of the of than of that natural flow without consent 25% Commission; person gas Corporation any taking the gas field, except specified pur- from a away for certain ratably gas “shall owner of the poses, take each in in and proportion gas”; to his interest said that such upon taking upon agreed by was to be terms the ratable agree, well in the of failure to owners, or, various event upon by Corporation terms fixed the Commission.1 largest Field is in the Hugoton
The Gas one of the States, States, covering a vast area several United in 1924 Oklahoma. was discovered or including 231-33): (Okla. 1913, 198, (1941) e. 1-3 Stat. tit. 1 L. §§ §§ any gas in this 1. All under the surface of land “Section natural owners, of hereby property the state is declared to and the original gas lessees, gas of the under which is located surface state. having gas lessee, surface, Any owner, oil of the and “Section right the right gas for have to sink a well to the to drill shall the gas gas therefrom until natural underneath the same to take having parties, gas such is exhausted. In case other under surface gas, drill or wells drill into of a well to the common reservoir may gas same, take therefrom into the then the amount each owner of his well or proportionate to the natural flow wells shall be owners the same flow of the or wells such other natural well gas, to be supply such flow determined common source natural beginning any at of each calendar standard measurement twenty-five per of the month; provided, not more than cent shown, good any taken, flow of well shall be unless cause natural may, hearing Corporation upon notice Commission developed until 1937. portion was not the Oklahoma but permission obtained corporation, Delaware Republic, leases 1938, purchased gas in Oklahoma to do business in its wells, removing gas field and drilled in this Com- Peerless Oil Gas pipelines. 1944, the own field other- portion gas in a pany completed a well Republic. It had no market tapped only by wise transporting well, from this nor means of obtained gas gas It offered to sell the market. gas such applied then which refused it. Peerless Republic, drilling order, taking greater proper permit the of a amount. by any or lessee of the surface shall be of a well or wells owner regarded reducing possession is shown his share such as *3 by his well. taking gas Any person, corporation, from a firm or
“Section gas field, gas field, except purposes developing or oil and of a use, operating wells, purpose oil for the of his own domestic shall and ratably gas proportion in to his interest take from each owner of the may agreed upon gas, upon as be between said in said such terms taking such, they agree party or in case cannot at owners and the by price upon may Corporation a such terms as be fixed the such hearing; provided, after notice and that each owner Commission gas point delivery on required to deliver his to a common of shall be adjacent overlying gas.” or to the surface such (Okla. (1941) 4, 52, 239, Stat. tit. See also L. c. §§ §§ 240): any production full from common “Section 4. That whenever the gas supply of of in this state is in excess of the market source natural any corporation, having right demands, person, then firm or the to any supply, produce gas from common source of drill into and such only gas may proportion of take therefrom such the natural waste, the or may marketed without as the natural flow of well corporation by any person, firm or or controlled such wells owned supply of such common source of bears to the total natural flow' by well, pre- having regard acreage so as to due to the drained each securing any pro- any corporation unfair person, firm or vent such gas therefrom; provided, Corporation Com- portion of that the may by order, taking greater proper permit the of a amount mission taking equitable. or whenever it shall deem such reasonable prescribe to rules and said commission is authorized and directed Corporation requiring Republic Commission for an order gas is, such from it to “ratably” to take take —that proportion same natural well as of the flow of Peerless’ Republic took of flow After the natural of its own wells. production of hearing, Commission found that in gas Hugoton natural field was in of the excess demand; Republic qualified market had do busi- existing in Oklahoma with full of the knowledge ness taking gas; the ratable of natural legislation requiring taking and that was share more than ratable regulations any of well determination the natural flow such wells, regulate taking gas any or and to or all natural state, prevent supply within so as such common sources of having waste, protect public, the interests of the and of all those prevent produce therefrom, unreasonable discrimina- any supply against one such common as tion favor source another. every corporation, here- person, 5. That firm or now or
“Section selling gas engaged purchasing natural after the business thereof, purchase state, purchaser and shall in this shall be a common may sale, may all natural which be offered for which reasonably lines, gathering lines without be reached its trunk another, producer against or in favor of one discrimination favor as against as authorized any supply source of another save one hearing; if due but Corporation Commission after notice and purchase all the corporation, shall person, firm be unable such producer offered, purchase gas from each then shall natural so *4 purchaser to ratably. any common It shall be unlawful for such gas, or in grades of pressures like and natural between discriminate may be production, production in which it own or of its favor indirectly interested, part, in directly in or but or either whole marketed, production gas to such prorating natural purpose of any producer other as that of be treated like manner shall only proportion that such person, in the ratable shall be taken and marketing. production production total available bears to the regula- authority to make Corporation shall have Commission taking metering purchasing equitable and delivery, tions common gas authority relieve such have of all such shall duty purchasing hearing, purchaser, due notice and from after quality grade.” inferior an portion tapped from that of the field its both belonging Peerless, thereby wells and that draining gas away and, effect, taking prop- from Peerless’ tract erty belonging to Peerless. The Commission ordered Republic: ratably applicant’s
“1. . take gas . . to from ., necessary well . . and to make connec- [Peerless’] applicant tion as soon as lays connecting a line said respondent’s [Republic’s] well with line, to con- tinue do so until the further order of this Commis- ; provided that, applicant sion from lay shall its line respondent its well to point the lines of at some designated by respondent, but in said Section said Company which well of Peerless Oil and Gas has drilled; respondent been and said required make said designation immediately and un- without reasonable and in delay, respond- event of failure do, respondent ent so to permitted shall no longer be produce any of its wells located in the Hugoton Oklahoma Gas Field.
“2. The terms and conditions
taking
of such
natural gas by Republic
Company
Natural Gas
said Peerless Oil and Gas Company’s well shall be
determined and agreed upon by and
appli-
between
cant and respondent; and in
parties
said
event
applicant
are unable to agree,
respondent
are
hereby granted
to make
application
further
to the Commission for an
fixing
order
such terms and
conditions; and the Commission
jurisdiction
retains
purpose.”
hereof for said
On appeal,
Supreme
the Oklahoma
Court affirmed,
holding
Republic,
having
given
been
leave to enter
the State on the basis of the legislation governing natural
gas production, might not challenge
validity,
and that
neither
order nor the legislation
on
is based
which it
*5
Okla.
rights.
asserted constitutional
runs counter to
order as
the Commission’s
interpreted
350. The court
taking
between
Republic “a choice
giving
direct, marketing
paying
therefor
Peerless
in its own
therefor, or to shut
accounting
to Peerless
supply.”
common source
production from the same
Due Process and
Invoking both the
Ever highest “the only after litigation in State power of review had” a in a could be a in which suit of State decision court 237 of § or decree.” judgment a “final has rendered 25 of the rephrasing § 28 U. S. C. Code, § Judicial Designed September 24, 1789, Stat. Act of a marked review, this reflects piecemeal the evils of avoid unlike that system, judicial the federal characteristic for the exercise prerequisite This of the States. of some per- especially of this Court appellate powers against is asserted barrier when a constitutional tinent of local peculiarly matters decision a State court’s .on upon limitation of this Close observance concern. History technicality. regard strangling
Court is not important factor it is an ample testimony that bears relations. securing harmonious State-federal defining formula when self-enforcing No indicated have been Tests be devised. “final” can *6 68 emphasis to giving direction helpful
which are
of
Thus,
requirement
to case.
from case
decision
major issues
because the
merely
been met
has not
finality
a
ends
few loose
only
decided
in a
have been
case
liability has
example, where
up
to be tied
remain
—for
adjudicated
all that
to be
needs
been determined and
Tobin, 245 U. S.
Bruce v.
damages.
of
is the amount
Banking Corp., 220 U. S.
v. International
18; Martinez
Smith, 295 U. S.
R. Co. v.
Mississippi Central
214, 223;
a minis
if
more than
hand,
nothing
the other
718. On
a
entry of
done, such as the
remains to be
terial act
regarded
the decree
upon mandate,
a
immediately reviewable.
the case and is
concluding
Lucas,
v.
108; Mower
v.
93 U. S.
Board
Commissioners
Fletcher,
There have instances might an that an order otherwise appeal tained controversy pro had interlocutory, because the deemed irrepara point losing party where a would be to a ceeded v. Wil unavailing. Cf. Clark injured if review were bly Pitkin, 545; 113 liard, U. S. 211; 294 S. Gumbel U. v. Barnard Conrad, 201, 6 How. with compare Forgay v. Gibson, reasons, an order How. 657. For related v. 7 possession physical decreeing immediate transfer an though for of review even purposes final property is the ac profits is to follow. such cases accounting controversy part a and not deemed severed counting is Conrad, supra; v. Carondelet Forgay main case. Louisiana, 362; Radio Station 233 S. Canal Co. v. U. a Johnson, 120. But decision v. WOW public domain where taking use, eminent determined, is not compensation has not been amount of change will not certainly property final, where deemed Grays compensation. award of hands until after the Co., Coats-Fordney v. S. 251; Harbor Co. U. Logging Cat Bridge 337; North River U. S. Luxton cf. is clear. States, thing One 229.2 lin v. United U. S. not ab finality are determine The considerations real interests —not very but have reference stractions particu more but, parties immediate those of the merely of our functioning the smooth pertain those that larly, judicial system. faltering faint and line, however
On which side “final” *7 deemed were times, dividing judgments at before not to be does the from those found so, Com- Corporation order of the Oklahoma us fall? The all some but not below, as affirmed terminates mission, to take Republic required proceeding. in this issues three any one of Peerless, may it do so ratably from but not would choose probable, Republic most ways. If, as is order the Commission’s wells, its own under to close down Republic’s to its well to connect it must allow Peerless deter- open for later left But there been pipeline. has the terms agreement, of failure to reach mination, event rates which take the Republic gas, which must upon agent if it sells as may charge purchase, on or pay it must character, or the alternative Does either its of Peerless. determination, so open for matters still fact that it leaves present “final” as to make it short of the order qualify review? what point. Certainly latter first to the
We turn merely characterized as cannot be to be done remains be gas amount of to not the “ministerial.” Whether can ascertained be by Republic Peerless taken formula, of a the determination through application general rule on the was based case our decision In the Catlin compensa just prior determination orders to that condemnation were involved there statutes appealable. The wartime are not tion general applying for not as a reason urged the claimants rejected this We contention. rule. to purchased, if or the fees
price paid to be if on paid marketing it sold behalf Republic judgment.3 Peerless, clearly requires the exercise irreparable damage there immediate threat of Nor is so Republic, rendering postponed illusory review “final” now or The Commis- to make the never. decree Republic point a on its requires designate sion’s order line, pipeline might at after which Peerless attach immediately. had to connect But it Peerless done so it Republic to com- appear requires does not that the order taking have taking mence before the Peerless’ terms agreed upon been Commission. either ordered appear would have to bear the Nor does expense nor that such expense connecting pipeline, Indeed, incurring loss, of some be substantial. would process preliminary exhausted, before review here is itself sufficient to authorize our intervention. Cf. Myers Shipbuilding S. 50- Corp., v. Bethlehem U. 52. But even i>fthe Commission’s order were construed require Republic dispose to take and of Peerless’ *8 immediately we are so advised not —and any no ground assuming State court —there is loss incur could might not be recovered should completed Commission, direction the Oklahoma on Supreme Court, affirmance that State’s ultimately be a Merely party found to be unconstitutional. because to may a litigation temporarily pocket, out of is not suf- immediate incomplete ficient to warrant review of an judgment. State has the burden Appellant, course, fixed, subject This case unlike those in which a rate been had continuing jurisdiction modify Market Cf. Street R. later. Commission, Louis, 548; Co. v. Railroad Iron U. S. St. Mountain Express Here, R. 24. & Southern Co. v. Southern 108 U. S. set, no rates have been future has and their establishment been left open.
affirmatively jurisdiction. establishing this Court’s Beeler, Memphis Natural Gas Co. v. 651. policy against premature adjudications constitutional maintaining demands that in doubts this burden be jurisdiction. against resolved See citation of cases in the concurring opinion of Mr. Justice Brandéis in Ashwander Valley v. Authority, 288, 341, 345, Tennessee S.U. precedents The condemnation attract this case more it is persuasively accounting than do the cases. Where an transferring property claimed that overrides decree Conrad, right, Forgay supra, as v. asserted federal Johnson, disposition supra, Radio Station WOW no proceeding possibly of the can subsequent accounting up party’s loss, party make for the defeated since the opponent to his property pay who has lost the must also appeal what his desire to accounting decrees. Hence certainly will almost property the issue of the to the case, in an hand, On other eminent domain persist. may litigation in a whole this, case like the fate contingencies by the fate of the unresolved well be affected do- An in an eminent litigation. adequate award might us profitable main or a rate the case before case acquiesce disposi- satisfy losing party well province not our the earlier issue. It is of course tion of reasons appeals. But for the soundest of discourage they issues before pass on constitutional ought we be- stop. similarity Another have a definitive reached and the cases calls for tween this case condemnation has litigation one organically until what abstention left in the It is that the matters been concluded State. This questions. additional federal open may generate *9 policy against fragmentary vivid relevance the brings into still remains to accounting cases, In that which review. questions. rise to new federal scarcely give can litigated little review has therefore fragmentary The policy against in eminent domain over valuation bearing. But contests inherently case, are type in this cases, price-fixing as potentiality This constitutional claims. provocative of of the same arising out questions federal additional find want of the nec- controversy led this Court to has in con- adjudicated constitutional issues finality of essary Like has been made. before valuation demnation decrees are relevant here. considerations determining considerations for short, guiding requisite possesses of the court below the decree whether this must await lead case finality conclusion judicial process State before its culmination jurisdiction. “Only one branch of the we assume can finally disposed none of below, has been therefore case Miller, ripe it for review court.” Collins it unnecessary S. 371. This makes to con 252 U. gave sider whether the mere fact that decree alterna precluded being tive from final. Cf. Pa commands 476; ducah v. Tennessee Tel. S. Jones’s East U. Adm’r v. Craig, 213; Note, U. S. L. Rev. Harv. appealed the judgment 305-306. Since now necessary finality, lacks the we cannot consider the merits. Republic’s objections All of constitutional are of course saved.
Appeal dismissed. Douglas, concurring. Mr. Justice Oklahoma court not “final” merely because it establishes that no has to drain I away Peerless without for it. paying think that, so, it would be conceded even the judgment appellant would not be “final” if it offered three alterna- comply tive ways to and there were doubts to the con- stitutionality one them. we Then would wait *10 ultimately selected of the alternatives was see which constitutionality reviewing imposed before reason defer But would be no more there of them. than in this. For in that on the merits case decision be isolated in each questions would the constitutional in the other which would be as uncertain one as and we apply appellant. actually alternatives would of the me same even when principle seems to to be the And whatever alter- of would sustain the order majority a us was chosen as its sanction. native of saving in the one the chance is, course,
There case only remedy than another if one rather the order survive which- while in the other the order would chosen, in each be need- giving was But we would ever chosen. That is points. dissertations on less constitutional some ques- in a case where the constitutional nonetheless true uncomplicated us majority simple, seem to tions ques- For the constitutional great dignity. single of no will isolated until the necessary for decision not be tion on is known. pinch appellant of the order precise present appel- in the at least until will not be known case (2) to (1) down, or is to shut become required lant elects purchase gas, (3) Peerless it. a carrier relationship which legal, economic, The as well as the one or another vary will bear to Peerless will Republic sub- is made. To make a “carrier” is to choice “pur- business than to make mit it to different risks only The each questions fact that would raise chaser.” does process” of “due under the Fourteenth Amendment are when questions not mean identical. Even test, developed have judges great reasonableness is the contrariety point today opinions. presented only are in the abstract. Tomorrow variables impact known, precise will when the the facts appellant Thus to me the on will be determined. order adjudication pre- premature constitutional policy against present case in the saying us from cludes is “final.” *11 Black, Rutledge, whom Mr. Justice
Mr. with Justice join, Murphy, Mr. Justice Burton Mr. Justice dissenting. Supreme is
I think Oklahoma Court’s Code, 28 final of 237 of the Judicial purposes § for the valid, order is S. C. that the state commission’s § U. indefi- that decision on the merits to some deferring an only prolong lengthy will already nite future time unnecessarily possible irreparable and with litigation party harm to one or the other.
Appellant, Republic Company, oper- Natural Gas has Hugoton many years. ated wells in the Gas Field for gas major producer exploit Oklahoma- It was the first own field,1having gathering of the constructed its portion into system pipe extending lines from Oklahoma exceptions Republic never only Kansas. With minor has pipe in its Okla. any gas carried but its own lines.2 198 at 352. Company, completed
In 1944
its
appellee, Peerless
Oklahoma,
Hugoton
field.
well
only well
This
presently
pipe
is not connected to
line.
therefore
Surrounding Republic
lies
wells drilled into
dormant.
draining gas
concededly
constantly
the same reservoir
are
Except
part
from under the Peerless land.3
1Republic
92 wells in Kansas and 38 in Oklahoma.
has
unnecessary
Supreme
found it
to consider
The Oklahoma
Court
purchaser
Republic
common-carrier or a common
whether
was either a
gas.
purchaser”
ex
The commission alternative ordering drainage, by loss due to first tecting Peerless from ratably from well of gas required to said in said field unless take Peerless ....
“(e) draining gas said Section Republic is from underneath ... Company’s has been well 14 into which said Peerless Oil and Gas drilled, gas from underneath said Section and will continue to drain . gas and Peerless . . all the thereunder has been drained 14 until taking proportionate share of the natural prevented from its will be gas ratably required to take gas Republic in the field unless ... from [Peerless].” from the Report “It is evident all of the commission states:
4 The Company is that if the Peerless circumstances in this case facts and by gas it gas well,-this must be produce from its to be allowed to transported or miles, gas is thirty unless said transported fifteen to Company. by disposed Republic the Natural Gas standpoint to construct impractical be from a financial “It would sufficient any city that would take pipeline to or other market outlet impossible well; gas justify production and it would be to the of this existing economically operate present under conditions the well to Republic gas pipeline of the is taken into the in that field unless the Company.” Natural Gas 232,233, 239,240, Stat., tit. Okla. §§ completely, down and second in the shut all wells area to Peerless. purchase from Since ordering Republic to by harsh, second was method was considered the first an issued order Accordingly the commission preferred. Republic ratably from the Peerless to take requiring made, be necessary connection could well as soon closing down all it, however, the alternative of allowing portion the field if it Oklahoma of its wells The terms taking gas. this to the Peerless preferred taking were to be determined and conditions of the agree, they event of failure to parties; but, application make to “granted were further an order terms and fixing the Commission for such taking, however, . conditions ...”6 was further was to agreement order; begin await this at once.7 required gas ratably The order “1. ... to take necessary applicant and to make soon as connection as
[Peerless] lays connecting respondent’s line, a line said well with and to continue Commission; provided that, to do so until further order of this lay applicant respondent shall line from its well to the lines point designated by respondent, at some in said but Section respond drilled; well which said of Peerless . . . has been and said required designation immediately ent make said and without delay, respondent do, in event of so unreasonable failure of permitted respondent longer produce shall óf no its wells Hugoton [Emphasis in the located Oklahoma Gas Field. added.] taking The terms “2. and conditions of such of natural *13 [Republic] agreed upon from shall be determined and [Peerless] by applicant respondent; between and event and and the said parties agree, applicant respondent hereby are unable are to and granted application the to make further to the Commission fixing conditions; for an order such terms and and the Commission jurisdiction purpose.” retains hereof for said language note 6. See The order’s leaves no room infer ence, appears injected here, taking which to be the was not that required begin to agreed upon until the terms had been or determined by further order.
Affirming order, Supreme the Court of Oklahoma construed state the administra- statutes authorize on presents tive action. Okla. 350. The case thus the merits the a question state, whether as means of private reservoir, in a adjusting rights correlative common power compel in such circumstances as has the these private producer another, one to share his market with production when otherwise his would drain off that other’s place appropriate ratable share thus to himself.
I. majority proceedings consider that the the state in a final judgment tribunals have not terminated lies, appeal which this Court refuse therefore adjudicate question.
In the strictest sense the state will not be proceedings completed parties agreed upon until the have the terms Republic’s taking conditions of from Peer- they if until or, agree, less do not the commission fixing has issued an additional order those terms. Since parties agree, possibility it is not certain that the will may required remains that a further order before all disposed of the are is this phases controversy of. one, I think a furnishes one possibility, as remote which the Oklahoma grounds concluding of the court’s judgment meaning policy is not final within the § phases litigation
The fact that all are not con jurisdiction. defeat our This necessarily cluded does not An v. Los true, although recently Gospel as Army geles, that, judgment U. S. we reiterated be final “it must end the liti § and reviewable under gation fully determining rights parties, so nothing 'except trial remains to be done court the ministerial act of which the entering *14 78 ” This 331 U. at 546.
appellate court . . . directed.’ S. variety a general rule, grounded the in considerations is statutory coming reflected in the command8 down jurisdiction in the conferred that, exercising to the sum reviewing by 237, concerned with § this Court inconclusive, piecemeal, repetitious or determinations. for a Army represents typical The instance Gospel case But not applying policy § 237.9 the terms the the every leaving of last by decision state court resort controversy open proceedings to further and orders premature purposes either inconclusive issues recently from appears § of review under This most Johnson, WOW v. 326 the Radio Station decision applied which a settled line authorities U. S. Board, Corp. to that Oil v. State effect. Cf. Richfield U. S. 69. finality such the cases the formulation of test Army Gospel
made and like has not been decisions special followed. circum question, Instead stances, practical posing essentially has been treated as problem, by not one to be the label determined either Rich law, attached to the state court local Board, supra, merely Oil Corp. v. State field pro further inquiry mechanical whether some order or “the ceeding beyond judg ministerial act entering necessary ment” had or after our is ren may be decision Johnson, supra dered. Radio Station v. at 125. WOW opinion typical WOW noted case applying broader, less mechanical to the approach
8Some of the considerations are enumerated in Radio Station Johnson, WOW 120, 123-124. procedure supreme unqualified Under California state court’s order for reversal was remand the trial “effective to case ‘for a new [place] parties position in the as if never same the case had ” been tried.’ at U. S. 546 and authorities cited. The effect inconclusively was thus to leave all issues pending determined further proceedings in the trial court.
question had
finality
judgments directing
involved
the
delivery
property,
immediate
to
an
be followed accounting decreed in
stated,
the same order.
with
reference to
and like
“In effect,
these
situations:
such a
controversy
multiple
is a
litigation allowing review of
adjudication
the
which is concluded because it is inde-
pendent
of,
by,
unaffected
litigation
another
with
happens
which it
entangled.”
to be
Notwithstanding despite this and the want of strict jurisdiction finality, was sustained because number of factors were felt require to that action in order give policy effect to the of 237 for providing review, § rather than a merely application mechanical of its terms for denying review.
There was nothing tentative or inconclusive about the Nebraska court’s judgment for delivery immediate property. Nor it necessary was of that execution phase of judgment the contemporaneous have conclu- prior against The two decisions deemed decisive mechanical de finality Forgay termination of Conrad, such situations v. were 201, How. Louisiana, and Carondelet Canal Co. 233 U. S. the former of which we nearly noted had “stood on our books for years opinion a hundred carrying authority, especially an weighty matters, such Taney.” Chief Justice latter, Except accounting phase.
sion of the exe- immediate review. Indeed ripe was affecting questions of the federal cution without review accounting had been until after delivery phase harm to irreparable possibility offered completed, obviously parties. This factor possibly both one futile. wholly partly later full review tended to make settled, phase had been delivery until Moreover, accounting would be not be known whether could consequentially incident was necessary, that need *16 liti- of core of the dependent upon determination the delivery. gation, which was the it was more rightly In considered circumstances these purpose 237 to allow § with the intent and consistent aof review, notwithstanding possibility the immediate accounting than to phase, in later further review the might with later one deny review the chance parties’ policy The rights. save the section’s fully not prompt outweighed full, adequate and review to furnish and literal “finality.” to secure absolute design presents parallel to respects In all this case the these close, my distinguishing for opinion, too be WOW case Republic negotiate is terms tween not directed them. completing negotiation the to make its facilities on It is to make a to Peerless. ordered connection available begin That carrying with Peerless and at once. phase order, phase like the in the account delivery not await cases, fixing of the terms whether ing does present agreement by further order.11 It is a or obli gation, immediately qualification.12 without effective Phillips, Loan Assn. v. 300 U. See Knox S. 6,7 supra and See notes text. pro remote event that should elect to shut down
duction, agreement there be need would no for a further order or parties, presently finality and the erected obstacle to would be completely removed.
Moreover there is tentative or nothing inconclusive phase about of the order or the state sus- That taining phase only separable it. is from the fixing matter of terms; delivery like order for WOW case, it controversy is the main core of the aspect to which the is fixing consequential terms both and incidental. The WOW required order immediate ir- delivery property, consequent with possibility of reparable required harm. Here the order immediate acceptance of with delivery, possibility injury similar party one the other.13 greater
Neither there likelihood of piecemeal consid- eration of than questions constitutional and other in the WOW case. Cf. 326 U. at 127. fixing matter of S. hardly terms practically here can be difficult more more complex the WOW legally making than accounting case.14 It hard also to see how be one would either more likely up or less to throw new constitutional than issues permit Republic drainage To to continue from beneath Peerless’ land period required sending for the indefinite the case back to the bringing Oklahoma tribunals then here back a second deprive time will Peerless of law unless the state *17 compensation taking allows for such continued from the of date present the highly order. It is least at doubtful that the state law remedy, allows such if eventually a even the order is held valid. hand,
On the if the other order should be invalidated on the review, Republic put deferred will have been further unneces- sary uncertainty merely delay, expense ascertaining rights, in its possibly to secure a determination which them. this cannot affect If may irreparable injury, certainly policy not is be it not the of 237. § marketing problem industry, In view of in this no such conditions reaching agreement upon of presented or of be valuation it would as, instance, seeking place upon for in the case of value real a public property estate taken for use or condemnation valuation rate-making purposes. determining for The idea that the value valuing present the taken here would all the a difficulties up rate-making purposes beyond railroad for blows the all matter practicalities the of the situation. taken to rule that can case be
the other. Nor the WOW not constitutional not or would consider Court could unlikely accounting phase, though on the arising issues may is necessity doing have been. There the for so substantially parallel the situa- complete a between thus and that in the WOW of cases. presented tion now line appeal- is stronger finding this case for respect In one may necessary be finality. For here no further order able present resolution the basic constitu- made, since the problem probability in all will end entire con- tional if the deci- certainly That would be the result troversy. if Republic should elect against sion Peerless go should if be production. down And the decision should to shut likely it will favor, parties in hardly Peerless’ is terms of failure agree upon since, case unable to prescribe will them.15 case agree, commission at basically controversy is a over terms all. indeed present only contingent, collateral matter. What They fundamentally at stake is the to take Peerless’ land and market it without beneath finally paying question Peerless it. Once determined, it can be only this Court’s decision question, the need for further order constitutional highly improbable. will become is one in which need for This case therefore further proceedings may certainly never arise and almost would if were question not do so the constitutional now deter- Indeed, application mined. a closer factual than the case, presents jurisdictional aspect WOW an parallel almost exact to the order reviewed in Pierce Oil Corp. v. Refining Phoenix U. S. where the required appellant carry Oklahoma commission oil appellee unspecified at rates. Cf. Refining Gulf *18 15 note See 14.
83
Williard,
States,
v.
Co. United
U. S.
Clark
125;
269
v.
The
.to the WOW line of
put
is
aside
this case
decided
to con-
by analogy
is
cases, particularly Grays
demnation
Co.
Logging
Harbor
Co.,
v. Coats-Fordney
In Catlin v. United question U. S. conclusively take was settled below before the award fixed. damages per- was But there to have appeal transferring possession mitted an from the order produced delays would have inconsistent with the over- 16Wheeling Bridge Wheeling Bridge & Belmont Co. v.
U. S. 287. Bridge The same was said to be true of Luxton North v. River Co., 147 337. id. U. S. See 341. 18Moreover, practice under state review of the condemnation order supreme by certiorari, appeal state court was which lay only fixing damages. law, from the order As a matter of state therefore, judgment on the condemnation order was interlocu tory. See, however, States, Catlin v. to this United 234; Bridge Co., Luxton North River U. S.
84
and
Purposes
the War
Decla-
purpose
policy
of
riding
as amended
Acts. 26 Stat.
Taking
ration of
235, 238,
The asserted 17) not hold the (see note cases therefore does Luxton presented. now them entirely different situations of or separable phase litigation; the either was no there require- statutory independent of 237 other like policy § disposition ultimate finality of forbade before ment review phase of in the state inferior fed- every litigation of the therefore, though The cases eral courts. condemnation orders for generally denying uniform in review of con- prior damages, demnation to award of are not uniform requirement “final- resting wholly result on this ity” provisions review, made and like but by § 237 perti- independent grounds on other frequently rest application provisions. of those nent “penumbral appealable finality, area” of see The scope. in its 124, may sweeping U. at not be never- S. prevent theless one essential the letter the section purpose it overriding its reason. For would separable comprehend situation presenting seem phases involving the core or crux of litigation, one controversy parties, other between the collateral necessity of their consideration dependent matters upon unqualified disposition and decision final and merely applica- If dispute. the hub of the mechanical avoided, tion of is to be be taken that the § 237 cannot line practical approach of the WOW of decisions must exclusively where accounting limited cases an follow delivery property ordered to decreed at same indeed exception, time. reason of 237§ itself, delivery is not so limited. Because ac- only cases counting presenting are ones such *20 problems, play must be some in other given as well situations to decide whether excluded the vices policies the underlying they 237 are be present, may § as according par- to the character effects sought ticular determination be reviewed. it can
Finally, hardly merely be that the alternative per se character of the deprives finality, regard- order it of less of whether presents the alternatives a sub- question. stantial federal Because is allowed to choose shutting carrying between down wells and or purchasing the it gas, thought Peerless seems to be that finality made, the order lacks until that is choice though even when clearly made either course be would within state’s power require.
The argument would have more force if the difference between the alternatives were it great enough to make likely contrary results on the dif- might reached ferent But alternatives. where here the difference g., e. emphasized, merely passage between the of title before after carriage, it is hard how to see there difficulty could be more with one alternative than with II; See other. Part also Part IV. So minor a dis- hardly tinction furnishes a substantial basis contra- process riety judicial opinion on due questions. Nor is it suggested that allowing the choice between either two shutting presents those courses and down greater Given difficulty. constitutionality of all alternatives, power no more permit party transcends state affected to select the course require least onerous than to him to follow the one most It is equally burdensome. hard to see how giving destroys choice the order’s conception of wholly mechanical again unless
finality, as used in 237 is to control. § that term premature policy against hypothetical,
The section’s against a decision, not choice piecemeal constitutional Here the problem. no such presenting of alternatives Republic the Oklahoma can offer question is whether paying production taking down shutting choice of protect will the lat- gas. Peerless Either course Either stand- against drainage Republic. rights ter’s finality. would not affect ing alone the order’s terms merely upon premise that alternative charac- Neither, presents question a doubtful per destroys finality, ter se shutting And finally the alternative of constitutionality. considered, is more down, realistically nearly sanction of compliance.19 than mode alternative say coupling such circumstances two deprives finality *21 alternatively order seems courses be to the terms of 237 a giving § to me to mechanical with application harmony policy, just out of the section’s to decide the case it is known refusing as does before necessary fixing may whether a further order for gas. only Such a view handi- price of the Peerless can cap forcing spec- action either orders administrative ify a single compliance may course of when alternatives desirable, by delaying be much more or review thus Beers, 54; Cf. Wabash and Erie v. Canal 1 Black Milwaukee and Soutter, Minnesota R. Co. v. 440. Wall. production, course, of of
Control of the core state conservation Rfg. programs. Champlin Comm’n, prora- Co. 286 U. S. limiting production per tion orders of oil as wells to little as six cent capacity p. were sustained. 229. Cf. Walls v. See Midland Car- Co., 300; Lindsley v. bon Natural Carbonic Gas power protect rights hardly U. S. 61. The of a state to correlative regarded furnishing pro- can be a less solid for basis control power prevent duction than the waste. See note 29 and text infra.
effective perhaps administrative action until all one of the alternatives in turn are tried out first in election and then in review. A decision every now would settle pending phase substantial controversy. At the most minor consequential separable aspect but a would possible remain for remotely further action state tribunals. It is to the interest of both parties, well, the state authorities as rights their be deter- controversy mined and the be ended. And on the facts question jurisdiction closely related merits.
In view of all deny parties these considerations, to our judgment now finality is to make fetish of technical without securing any of the for advantages substantial adjudication constitutional which light § its underlying policies, was designed to attain. Instead that section an delay becomes instrument of sheer performance of our function, executing those of state agencies, settling parties’ rights. has The section no By such declaring office. now that fol- may the state low clearly permissible either of two courses and allow those with whom it deals we them, choose between speak hypothetically would not or violate prematurely policy underlying other §
II. Beyond matter jurisdiction, there is in case concerning no question such as arose in exercise Res- *22 Court, Army cue Municipal 549. con- The stitutional speculative, premature pre- issues are not abstractly sented en The masse. “alternative character” prevent the state does not the federal ques- sufficiently tions from being precise and for concrete purposes of decision here, although various ambiguities have been suggested. the order we whether it is that cannot tell
Thus said merely requires market or compels Republic to share its for must obtain a market which Peerless carry gas it to Co., 300 U. S. v. Consolidated Gas Thompson Cf. itself. subject ambiguity. such an here is not 55. The order Republic gas to take Peerless commands It terms pay for it.20 tell whether Re- that we cannot suggested It is also just from Peerless or purchase will have to public gas profits. transport to market and account gas Republic passes at one end of legal But whether title is, noted, wholly immaterial the other as we have line at Pipe Cf. The Line as a matter of constitutional law. Cases, the order and either event under U. S. 548. sys- into gas must take Peerless judgment Republic expand and, for it unless its market tem, pay must should far suddenly beyond present expectations, must there- its market with fore share Peerless. cannot be sure whether the said further that we Republic make act as a intends to common
commission The only basis this doubt is the fact that carrier. Republic findings state that is a com- the commission’s purchaser. and common su- mon carrier But state assumption upheld the order on the preme court findings justification were for re- those incorrect. Republic report should In its the commission concluded that Republic required to “. . . the Peerless to enter the be allow Company pipeline, pay gas.” The order the Peerless gas ratably unqualified itself terms directs “to take applicant lays connecting line well ... as soon as said [Peerless] . .” respondent’s with line . . See notes report supreme commission’s nor the state Since neither suggests qualified by opinion the command was court’s market, Peerless obtain its own we need not read condition that report into the order. The commission states that such condition “Republic transport if offers to Peerless market can ob- . . . tained .” [Peerless] *23 Republic carry gas primarily to Peerless is based
quiring Republic’s production. drainage on the fact of caused III. question on the previously
It has been noted finality. it, to the issue of To unrelated merits fight, attention is now directed. The real accordingly, drain stated, right Republic as has been is over the to without for it. The away gas paying ques- the Peerless legal process tion as in terms is whether the due cast Amendment equal protection clauses of the Fourteenth deny power private producer one give Oklahoma pool option production shut down from a common purchase purpose altogether or to from another in rights pool, their correlative when adjusting only practical alternative that is the or feasible consistent drain- production by protect with both to the latter from age by the former.
Republic this. basic power denies state’s do Its position is that has a federal constitutional drain in field, off all the unless other owners producing rights supply can their own facilities for mar- keting production, regardless varying their conditions competitive in and regardless different situations of all practical consequent affecting feasibility considerations furnishing such facilities. right. has no such The Constitution did not impress upon the states in a rigid mold either the common- system law feudal of land tenures or of the modified prevailing and variant forms of tenure the states Rather it left them free devise and establish systems property adapted vary- their own law to their ing peculiar and to the needs and desires local conditions placed original of their inhabitants. constitution explicit powers no upon limitation of the states *24 was Amendment until the Fourteenth Not respect.21 one introduced. later, was nearly eight decades
ratified, nullify designed to was not Amendment The Fourteenth in accord property institutions power state create it was policies. Whether or not with local needs individual as well rights substantive to secure intended jacket immobiliz- ones,22it was not a strait procedural property institutions of change or alter ing power state Almost innumerable decisions interest.23 public in the has the Amendment this, though even have demonstrated upon limitations substantial been effective to create necessary may deemed changes which the methods be made. due really one of substantive question here
The basic can primarily to whether Oklahoma process. It relates tjie appellant capture which unqualified right curtail by virtue of and as an unalterable acquired conceives rights including of surface acquisition to its incident For, denying in that gas. drill for state right 21 prohibitions approximations perhaps were in The nearest against legislation impairing obligation of contracts state legislation a,gainst post the latter was limited to crim ex before {acto Bull, Hale, penal consequences. v. 3 See inal and Colder Dall. 386. 512, Clause, Supreme and the Contract 57 Harv. L. Rev. Court 621, 852. 22 Indianapolis dissenting in v. See Mr. McCart Justice Black 419, 423; Boudin, Truth and Fiction about the Water 302 U. S. Q. Amendment, 16 N. Y. L. Rev. 19. Fourteenth U. 23 thus precisely in where the Amendment has been made It is cases “property,” effective, by giving expansive scope to the often idea interpretations failed to withstand the test of time. have Nebraska, McBride, 350, with Olsen v. Compare Ribnik v. 277 U. S. States, 161, Coppage v. 236; Adair v. United 208 U. S. U. S. Board, Phelps Dodge Corp. Kansas, 1, v. Labor 236 U. S. with 177, 187; York, Adkins v. Lochner v. New U. S. Hospital, with West Coast Hotel Children’s U. S. Co. Parrish, 300 U. S. limitation consist- only method of
can enforce the feasible say- by Peerless, Republic effect production with ent all to take restrict its ing that the state cannot drained all that can be reservoir, including common other owners and the lands of beneath Peerless’ lease circum- is, particular This similarly situated. protect correlative power of the state’s stances, a denial in the appellant’s taking regulate field or to rights rights proportionate having equal interest others concedes it For, though Republic holdings. their surface rata pro statutory requirement by Oklahoma’s is bound fac- time requirement merely becomes production, *25 Republic’s length period of the the rate affecting tor eventually taken, to be quantity not the total drainage, thus order and defy the commission’s if can present helpless condition. in its leave Peerless especially more reaching, far is bold and The contention industry. of the nature is taken when account single a fugitive, once place in is volatile gas Natural in be stored extracted it cannot When opened. outlet is tips ultimately at burner be marketed but must quantity, the well from conveyance them necessary in the time re- industry’s for the competitive struggle mouth. develop- stage in the initial intense particularly wards outlays very large nature industry’s By the a field. ing continuing produc- for successful required are capital tend however All those factors marketing. tion in a achieved has been once monopoly success toward field. particular reflected have been moreover, qualities, peculiar
These in ownership gas relating to rights legal in the adapted They have been its extraction. as well place, re- struggle competitive that of and to nature to its law, in branch of this Only specialist it. garding say state, can undertake which varies state may degree precision rights with what reliable particular difficulties, in intensified situations. These inade- struggle product and the competitive it, forced both quacy to control have of common-law ideas to adopt extensive government the states and federal has been nec- regulatory years. measures recent This rapidly essary public interest in this both to conserve the adjustment natural and to secure fair depleting resource24 private industry. being in the Rather than rights field sacred, law, untouchable enclave of the common very especially governmental nature lends itself In respect intervention for such it purposes. hardly comparable comprehending only to situations con- merchants of ventional manufacturers consumable goods. with does not law, appellant accordance Oklahoma’s only right place.
assert title to the asserts capture produce. right, what it can But un- qualified, include the to take from beneath would pro- others’ defies their to a taken, rights lands. So them, portionate power share and the state’s to secure if their own rendering marketing through for reasons join they unfeasible cannot the unrestrained facilities competitive draining. *26 concerned, there
So far as the federal Constitution no in the to drain simple unrestricted fee such adjacent far too gas from beneath an owner’s land. It is if are late, otherwise, urge was that the states it ever impotent put upon race or to restrict unfettered measures proportionate equality terms whatever reasonably to that Indeed our may necessary end. history is with where the replete constitutional instances and property states altered schemes of have restricted 24 Co., v. Hope Power Comm’n Gas 591, dissenting Cf. 320 U. S. opinion MR. Justice Jackson at 628.
93 and the states’ public interest response rights extent gone this has to the In some cases local needs. conceptions entirely and basic common-law abolishing areas and indigenous to their substituting new ones extensive and Perhaps the most problems they present. in the devel- systems are to be found illustrations obvious states for and mountainous western oped in our arid streams and flowing in the waters of governing rights are precious metals.25 Others respect mining rights lacking.26 and con- maintained that the creation hardly can be and ownership, extraction rights respecting trol of subject state broadly are less marketing of natural and irrigation to waters for relating than those control in the precious metals to the extraction other uses or play have into those matters called regions where to local in the manner best suited authority states’ to act their inhabitants. The simi- and the needs of conditions purposes problems, situations and the larities of the are so powers, in the exercise of those constitutionality specified. not need to be they obvious do pow- broad the states’ freedom to exercise Historically, ownership regulating rights defining ers as recognized has been almost of natural production completely as their similar freedoms quite long rights mining rights. water in relation to to act 25 v. 361; Irrigation v. 198 Nash, District U. S. Fallbrook See Clark 46, 93-94; 112; Kansas v. 206 U. S. Colorado, 164 U. S. Bradley, 174 S. Irrigation Co., v. Rio U. Dam & United States Grande 527; S. Highland Boy Mining Co., 702-703; v. U. Strickley Gold 256; City v. Mining Kerr, 130 U. S. Parley’s Butte Park Silver Co. Mining 119; Kendall v. Co. v. S. Baker, Juan Silver U. San Water 658; v. 646. Matko, 223 U. S. Co., U. S. Clason 9; v. Hoagland, Co., v. 113 U. S. Amoskeag Mfg. Wurts 26 Head 311; v. Ferry Spokane, 606; v. cf. 204 U. S. Walker, 114 U. S. Bacon California, 314; Campbell U. S. P. R. & S.
94 century half with beginning ago
a line cases Ohio of Indiana, upheld v. U. S. this Court has Oil Co. 177 designed pre- schemes types regulatory of state various protect “coequal rights” and to vent waste supply.27 owners of a common source of These several clearly regulation may the state recognize cases grounds, prevent alternative either to waste justified on adjust private rights.28 or to correlative appellant points true, out, It is that none of those presented specific issue cases of whether the state independently may adjust rights correlative conser- power But it is not program. vation true that merely incidental to the fundamental of the state fact, natural if preserve power resources. one other, were incidental to the the Ohio Oil case would support prevention justifiable the view that waste be- purpose protecting cause it serves “the all the collective Moreover, . at sig- owners . . .” 177 U. S. 210.29 it is opinion Bandini Petroleum v. nificant Co. Superior specifically Court states that the reg- California
27
Indiana,
Lindsley
190;
v.
177
v.
Ohio Oil Co.
U. S.
Natural Car
Co.,
61;
Co.,
bonic
220
Walls v. Midland
254
Gas
U. S.
Carbon
U. S.
300;
Superior Court,
8;
v.
Bandini Petroleum Co.
284
S.
Cham
U.
Refining
Corporation
plin
Commission,
210;
v.Co.
Hunter
McHugh,
v.Co.
95 if as a measure face, ulation is valid on its even viewed rights. designed purely protection of correlative 8, 284 U.S. 22.30 rights
Oklahoma’s to power regulate correlative Hugoton field therefore does not stem from her interest merely in of natural stems preservation resources. govern- aim authority any rather from the basic protect ment seeks to its rights which citizens just they of them when clash.31 secure accommodation authority constantly system That exercised our In types property.32 relation to other view of this 30 recently upheld Supreme of Texas has administrative The Court solely designed protect rights. v. correlative Corzelius action Harrell, Note, 509. 24 Tex. 97. 143 Tex. L. Rev. 31 prevent agents going on Peer can Oklahoma gas. drilling stealing less’ land force of arms and there a well and larceny trespass enjoin power prevent and to state’s neighboring property property use of that creates a nuisance regulation property for the mutual justifies also of common owner Mfg. Amoskeag advantage Head v. 113 of its several owners. Walker, 9; v. 311. U. S. Bacon U. S. may compel one individual circumstances a state
Under certain exploit solely private property to enable another to surrender v. private property. Thus in Clark potential resources of his productive plaintiff’s made Nash, land could be 198 U. S. land, irrigation and in only by enlarging ditch across defendant’s an Highland Boy Mining Company, 200 Strickley U. S. v. Gold only by construct- mining company deliver its ore to market could Peerless can land. Here ing bucket line across defendant’s an aerial gas only Republic compelled to take its property if exploit its Moreover, produce the under until Peerless is able to market. by Republic. land, gas will continue to be withdrawn property. exploiting Peerless’ Republic is now effect Hoag 9; v. Amoskeag Mfg. Co., Wurts g., v. 113 U. S. E. Head Bradley, Irrigation District v. 606; Fallbrook land, 114 U. S. Plymouth Walker, 311; Coal Co. S. 112; Bacon v. 204 U. S.U. Co., 260 U. S. 531; v. Rosenbaum Pennsylvania, Jackman concerning conditions has been said and of what fact hold for us to incongruous would be industry, in this law phase property law is the one that oil and purposes. except for be modified conservation that cannot development origin of its Especially light in the in fostering atmosphere appropriate for in a laissez faire The Evolution expansions, Merrill, see competitive tense *29 should be Law, 281, Miss. L. J. the states of Oil and Gas 13 property to evolve new certainly allowed not less freedom industrial conditions keep pace changing with rules to of the law.33 nearly every in other branch they possess than scope for elsewhere, considering proper in Here as indulge important it is that we experimentation, state in presumption favor of the states’ ac every reasonable improve regulatory should be free to their They tion. here too knowledge advances, as scientific for techniques lifeblood of Mr. experimentation progress. is the See v. Lieb dissenting Justice Brandeis New State Ice Co. mann, 262, 280.
IV. remaining prac- narrow most issue whether the tical of a fair of the achieving method accommodation
33 judicial legislative through processes “It is submitted that and right-duty against injury non-compensated relations and correlative exist, difficulty finding preventable drainage and and do but the proving particular usual rem the facts in a situation is such that the might damages injunction practicable. It seems edies not be declaring legislatures expressly more advisable that enact statutes landowners, right-duty existence of these relations in correlative rights waste, apart public against an administra authorize regula agency, finding facts, promulgate tive after a rules private protection tions their authorize the Commission regulations through in the owners to enforce such rules and actions Summers, Rights Gas, Legal against Drainage courts.” of Oil and Tex. L. Rev. rights parties Repub- is invalid because correlative pay gas take and to that it does required lic if for it. pay least not want it must want —at does v. Consolidated Appellant Thompson on heavily relies Court an Gas U. S. where this invalidated severely limiting production so respondent’s order gas wells purchase would had to from unconnected have satisfy Thus order commitments. vicinity its necessary comparable of that order was to the effect under review here. effect order a the cases.
But there is crucial difference between explicitly assumed deciding Thompson case Court upheld reasonably designed if order could drainage "to undue prevent prevent waste or either lacking pipe line from the well owners reserves anomaly there geological Because of connections.” away from the drainage in the field general was S. wells, 300 U. wells the unconnected connected toward *30 draining wells, rather than 71-73, producing so that the at only would reduce away wells, from the dormant There- possible. producing loss as much as by their own production could not be on their fore the limitation preventing purpose for of since it was neither the justified, rights. correlative regulation nor a waste reasonable it party loss, operated from protecting one Instead away from the drainage aggravate to the effect They an suffered, only wells. owners of connected consequence the that loss, but also drainage increased and market with were their facilities they forced to share The profited by loss. Court very parties who their the company to share requiring such one held that an order was inasmuch market with another unconstitutional repeated assumption several times at This is 300 U. S. 76-77.. 58,67, 72-73. opinion. S. at 69 and in the See 300 U. measure as a justified
as it was not either conservation The adjustment rights. or as a reasonable correlative in justification present is this latter case. compelled purchase to Republic fact that is either carry it to market and account for
Peerless’ unreasonable. profits regulation not make the does If that were the state could complaint, the sole cause step more all the well owners requiring take the drastic produce down until all able to completely to shut were agreement on a ratable came to some effective basis or possible. clearly to make this within the state’s compensate power require Republic Peerless land. Patterson v. gas drained under the Peerless Co., Here, requiring Stanolind S. 376. instead of U. Republic payment amake cash based on the estimated amount of commission has selected what is drainage, the adjusting a unquestionably more accurate method rights. if it correlative Even could be assumed this imposed on method somewhat heavier burden possible alternatives, not follow that than does method commission is unconstitutional. by the selected recognized of al- constantly propriety For we have agencies lowing wide discretion to the administrative who qualified solutions are best to select most reasonable thorny problems that accompany regulation to the this technical Railroad Commission Rowan highly field. & Oil Keeping Nichols mind the fact law property peculiarly concern, matter of local special difficulty defining regulating property respect experts in natural rights gas, due field, presents, and the unusual this record rather facts *31 say I power cannot that the is without to enter this state order. order, suggested the since it includes the re- purchase and not of
quirement merely transportation it profits, becomes invalid because accounting the risk incident Republic to business shifts Peerless Possibly might gas. ownership to sale objection materially furnish more serious basis al- what apart from has But, different circumstances. I no presented conceive said, been those now ready from the order’s possible, harm be substantially greater to drain depriving than operation, liability to pay from beneath Peerless’ lease without drained. gas so if be unable to parties should This assumes a manner will fix them in upon the commission agree terms prevailing market conditions rele- taking due account com- to be as well as reasonable price vant to the paid, With those Republic’s the use of facilities. pensation for great hard what applied, it is properly limitations see For, Republic. as we risk will be shifted business subject noted, commodity is one have already transported to sold as soon storage, must be subject consumption, and therefore cannot point selling price between fluctuation possible wide Republic. sale purchase times commission’s here, me, justify it seems to The facts may so materially do others different action. Whether they when arise. to be considered be left should Court of Supreme affirm I would Oklahoma.