Strain v. Cities Service Gas Co. , 148 Kan. 393 ( 1938 )

The opinion of the court was delivered by

Allen, J.:

By this action certain landowners, appellees herein, seek an injunction to restrain the taking or appropriation of any portion of their land by the Cities Service Gas Company, appellant, under condemnation proceedings. Judgment was for the plaintiffs, and the gas company brings this appeal.

The property of the appellees sought to be appropriated “is a horizontal stratum of the thickness of 480 feet, beginning at a horizontal plane 570 feet subjacent to the surface of said land and ending at a horizontal plane 1,050 feet subjacent to said surface, excepting therefrom said oil sand and a horizontal stratum containing same 50 feet thick, the top of which is 670 feet below said surface,” together with necessary easements, to be used by the gas company as a storage reservoir for gas.

In the petition for condemnation the appellant states that it is a gas pipe-line company and also a gas company, and that it is now and has for many years been engaged in producing, buying, transporting, storing, selling and delivering natural gas; that it sells gas to public utility companies supplying domestic consumers in more than one hundred cities in Kansas and Missouri; that it also sells gas directly to federal and state institutions in Kansas. The petition alleges that because of the sudden and drastic changes in the temperature in Kansas and Missouri during the colder seasons of the year, it is necessary for the petitioner, in order to maintain continuous, dependable and uniform service to its customers, not only to increase the pressure at its compressor stations, but it is also necessary to have storage reservoirs to hold the gas in readiness for delivery as needed; that the storage reservoirs will obviate the danger to the gas consumers that would result from an interruption of the gas supply; that to accomplish this end it has established gas storage reservoirs in depleted gas sands at three different places in Kansas, and has found it necessary to establish another underground reservoir in a fourth depleted field. It is further alleged that there is a depleted gas field in Anderson county, known as the “South Welda field,” consisting of about 4,000 acres; that the gas transportation line of petitioner runs through this field; that it has secured gas-storage leases from all the landowners except the landowners involved in this action; that these landowners refuse to grant storage rights, except at an exorbitant price, and that it is necessary to appropriate this land by condemnation proceedings.

The petition for condemnation was filed in the district court of Anderson county in February, 1937; appraisers were appointed, but they failed to agree. Thereupon a supplemental petition was filed, appraisers were appointed, notice given, and a report of their proceedings filed with the clerk of the court. In April, 1937, the gas company paid to the clerk of the court the amount of the award of the appraisers, together with the fees of the appraisers and costs. A transcript of the proceedings was filed with the register of deeds. The landowners appealed.

In the petition for the injunction it was alleged:

“That said pretended condemnation proceedings are null, void and of no effect, due to the reasons herein stated.

“That there is no law under which the land of these plaintiffs, or any interest or easement therein, can be taken or appropriated, against these plaintiffs’ will, for the' purpose for which said land is sought to be appropriated in said pretended condemnation proceedings.

“That the purpose for which said land, or an easement therein, is sought to be taken under said pretended condemnation proceedings is for private purposes, not for public uses, and is not such a use as would entitle defendant to the right of eminent domain.

“That an interpretation of the alleged laws under which said pretended condemnation proceedings were had, interpreting said laws to apply favorably with said pretended condemnation proceedings, would be unconstitutional and void.

“That the proceedings in said pretended condemnation proceedings are illegal and void, and are contrary to the general eminent domain laws of the state of Kansas.

"That an ex parte finding of said court without notice to these plaintiffs, and without a hearing whereat these plaintiffs were given an opportunity to present themselves and be heard on the matter, deprives these plaintiffs of their constitutional right, their day in court, and is an attempt to take the property of these plaintiffs without due process of law.”

The trial court held there was no legislative sanction for the proceedings. This is the vital question in the case.

It is the settled law that private property is not to be taken for private use. In Bangor and Piscataquis R. R. Co. v. McComb, 60 Me. 290, 295, this fundamental concept was thus expressed:

“This exercise of the right of eminent domain is, in its nature, in derogation of the great and fundamental principle of all constitutional governments, which secures to every individual the right to acquire, possess, and defend property. As between individuals, no necessity, however great, no exigency, however imminent, no improvement, however valuable, no refusal, however unneighborly, no obstinacy, however unreasonable, no offers of compensation, however extravagant, can compel or require any man to part with an inch of his estate. The constitution protects him and his possessions, when held on, even to the extent of churlish obstinacy.”

See Irrigation Co. v. Klein, 63 Kan. 484, 488, 65 Pac. 684; Comm’rs of Shawnee Co. v. Beckwith, 10 Kan. 603.

The power of eminent domain can only be exercised by virtue of a legislative enactment. The right to appropriate private property to public use lies dormant in the state until legislative action is had, pointing out the occasions, modes, conditions and agencies for its appropriation. (1 Lewis, Eminent Domain, 3d ed., § 367.)

In Comm’rs of Shawnee Co. v. Beckwith, 10 Kan. 603, it was said:

"No man can be divested of his land, or of any part thereof or interest therein, through the exercise of the power of eminent domain, or of any other power, except under the provisions of express and positive constitutional or statutory law; and he cannot be divested through the exercise of such power of any more or greater interest in his land than the constitution or statutes expressly provided for.” (Syl. ¶ 1.)

We must find in our statutes authority for this condemnor to take the subterranean sands of these landowners for a gas-storage reservoir.

Our statute, G. S. 1935, 26-101, outlines the procedure for the condemnation of land by a corporation having the right of eminent domain. It contains no grant of power.

Section 17-618 provides that lands may be appropriated for the use of oil companies, pipe-line companies, and for the piping of gas “in the same manner as is provided . . . for railway corpora-

tions, as far as applicable;” and any oil company, pipe-line company or gas company desiring the right to conduct oil in pipes or to conduct gas in pipes, may obtain such right or the right of way for all necessary pipes “in manner as aforesaid;” and such pipes may be laid on, through or over any land or lot, or through any street or alley or public ground of any city of the second or third class.

Our statute authorizing railway corporations to condemn land, referred to in the foregoing section, being G. S. 1935, 66-901, provides for the taking of a strip of land one hundred feet wide for its right of way “and also such land as may be deemed necessary for sidetracks, depots and workshops, and water stations, materials for construction, except timber, a right of way over adjacent lands sufficient to enable such company to construct and repair its roads and stations, and a right to conduct water by aqueducts, and a right of making proper drains.”

The evolution of these statutes has been traced in our decisions and need not be repeated. (See La Harpe v. Gas Co., 69 Kan. 97, 76 Pac. 448; Ritchie v. Atchison, T. & S. F. Rly. Co., 128 Kan. 637, 279 Pac. 15.)

As stated above, the principal question in the case is the right of the appellant to condemn land for the underground storage of gas. The trial court held the statutes do not give appellant that right. Certainly the statutes do not do so in express terms. Normally, at least, statutes granting the right of eminent domain should never be enlarged by implication. Appellant contends, and its reasoning leads to that end, that the statutes should be interpreted as giving it the right to condemn any property necessary, or which it deems necessary, in the conduct of its business. Obviously, this contention is too broad. It would authorize appellant to condemn any land in which its officials thought gas might be found, if more gas than it had available was thought necessary to supply its demands. This would disrupt the whole theory of gas ownership, production and distribution which now prevails. Certainly our legislature never contemplated granting gas companies such authority.

Here appellant sought to condemn for gas storage a tract of land known to contain two gas sands and one oil sand and possibly more of each. Appellant says gas in the gas sands has been exhausted. Appellees contend otherwise. The trial court was of the opinion that whether the gas in the known sands was exhausted was not material on the question of plaintiffs right to condemn. In other words, that plaintiff’s right to condemn for gas storage purposes does not depend on how many gas sands there are in the land or whether any or all of them have been exhausted. It seems to us that necessarily is true. It also seems to be true that if appellant has a right to condemn land in which to store gas, irrespective of whether the land contains one or more known gas sands or whether such sands have been depleted of gas, it would have the same right to condemn the land if it knew or thought it contained gas-bearing sand from which the gas had not been taken, for the purpose of taking the gas therefrom, if such gas was needed in the conduct of its business.

The use of the earth as a storage place for gas is an idea so novel we cannot believe the legislature had such matter in contemplation when the power of eminent domain was given to pipe-line companies. If the rights contended for by appellant are to be given to gas pipeline companies, it is a matter for the consideration of the legislature. To stretch the statute to cover the case here presented would be little short of judicial legislation.

In this view of the case it becomes unnecessary to review the other questions pressed upon us. The judgment of the trial court is affirmed.