Buttram Energies v. CORPORATION COMMISSION, ETC. , 1981 Okla. LEXIS 229 ( 1981 )

DOOLIN, Justice,

concurring specially:

I concur with the majority in this case when it affirms the order of the Corporation Commission, but I doubt the reason given by the majority is sound. The statutory power of the Corporation Commission to regulate the exploration and development of oil and gas is not questioned but such power, to me, must be exercised under sound and legal principles incorporated within the Act (52 O.S. 1971 § 81 et seq.) and our system of jurisprudence.

We deal with a unique situation for Global Gas (developer) has failed to make payment of the stipend in lieu of owner’s right to participate within the usual 30-day period defined by the order. Likewise the mineral owner, Buttram, failed to notify Global of its willingness to participate and failed to pay its proportionate costs of the expenses of exploration and development as defined by the order.

Mineral owners in this case chose to do nothing until an obvious producer was on the horizon and to me this amounts to an estoppel by laches, or perhaps even a violation of the clean hands doctrine. In any event the mineral owner has no right to demand a “free ride to production” without the assumption of risks of development.

Under the facts and circumstances of this case, the mineral owner must, when the in lieu payment is not made within the conditions set forth in the order, act or seek modification of the forced pooling within a reasonable time, and this usually within the 90-day conditional time for commencing the well. Such a party is not entitled to petition for rights to participate as if no order had ever issued with reference to the subject well.

Admittedly, such procedure as suggested would present certain problems, but none that are insurmountable within sound legal or equitable principles existing.

I am authorized to state that SIMMS and HARGRAVE, JJ., support this dissenting position.