Merritt v. Corporation Commission, 41986

• Decision Date: 13 February 1968
• Docket Number: No. 41986,41986
• Citation: 438 P.2d 495,1968 OK 19
• Parties: George R. MERRITT and Eula Juanita Merritt, Plaintiffs in Error, v. CORPORATION COMMISSION of the State of Oklahoma, and the State of Oklahoma, and the Southwest Eola Unit, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 495

438 P.2d 495

1968 OK 19

George R. MERRITT and Eula Juanita Merritt, Plaintiffs in Error, v. CORPORATION COMMISSION of the State of Oklahoma, and the State of Oklahoma, and the Southwest Eola Unit Defendants in Error.

No. 41986.

Supreme Court of Oklahoma.

Feb. 13, 1968.

Rehearing Denied March 25, 1968.

Syllabus by the Court

1. The Corporation Commission is a tribunal of limited jurisdiction and has only such jurisdiction and authority as is expressly or by necessary implication conferred upon it by the Constitution and statutes of this state.

2. When the Corporation Commission creates a unit for secondary recovery purposes, it does not have the jurisdiction and power to authorize the appropriation and use of fresh ground water for injection in the unit.

Appeal from Corporation Commission Order No. 61704 in cause CD No. 23509.

Plaintiffs in Error filed an application with the Corporation Commission for clarification of an order issued by the Commission. Plaintiffs in Error appeal from the Order of Clarification. Order reversed.

DeBois & Peck, Duncan, and W. D. Hart, Pauls Valley, by O. L. Peck, Jr., Duncan, for plaintiffs in error.

Ralph L. Wampler, Conservation Atty., Nell Rhodes Fisher, Asst. Conservation Atty., Oklahoma City, for defendant in error, Corporation Commission of Oklahoma.

M. Darwin Kirk, J. P. Greve, William R. Loar, David G. Probst, Ben Hatcher, Tulsa, for defendant in error, Southwest Eola Unit.

Otjen, Carter & Huddleston, by Charles G. Huddleston, Enid, General Counsel for Oklahoma Farm Bureau amicus curiae.

G. T. Blankenship, Atty. Gen., of Oklahoma, Brain H. Upp, Asst. Atty. Gen., for Oklahoma Water Resources Board amicus curiae.

IRWIN, Vice Chief Justice:

Plaintiffs in error, herein referred to as Applicants, are the owners of the surface rights to a tract of land included in a plan of unitization approved by the Corporation Commission in Order No. 51992, which contained the following proviso:

'The Unit and Unit operator shall have free use of surface or subsurface water from the Unit area for Unit operations, including the right to drill water supply wells; * * *.'

Applicants filed an application with the Commission for a clarification of Order No. 51992, concerning the definition or meaning of the word 'water' as therein used. Simply stated, Applicants sought an interpretation and clarification as to whether the word 'water' as used therein, included 'fresh ground water.' Applicants' interests in such clarification is disclosed in their application wherein it was alleged that 'the unit commenced to take fresh water from a well located on Applicants' surface and to transport same to other leases within the unit area for the purpose of injecting same in a repressuring flood program * * *.'

After hearing, the Commission issued Order No. 61704, wherein it defined 'water' as used in the plan of unitization, to mean 'water of any character, fresh, salty, or otherwise.' Applicants perfected an appeal from this order.

Applicants contend that there 'is but a single question involved in this appeal, to wit: Does an order of the Corporation Commission * * * creating a unit for secondary recovery purposes give the unit operator the right to transport fresh water from beneath one tract of land within the unit to leases throughout the unit for injection purposes?'

Defendants in error, herein referred to as defendants, contend that the oil and gas lease covering the land on which the fresh water well is located, contained the provision that 'Lessee shall have the right to use, free of cost, gas, oil and water produced on said lands for its operations * * *'; that the Commission's order granting the right to take the fresh ground water was merely a confirmation of the contractual rights created by law; that the creation of this unit extended the contractual rights to the boundaries of the unit and gives the unit operator the right to use water throughout the unit as though only one lease were involved; and that a landowner, or his licensee, has the right to take fresh ground water from his land for legitimate beneficial uses, including mining, manufacturing and industrial uses, without obtaining a permit from any governmental authority, so long as a critical ground water area is not established and priority of claims to such ground water is not determined pursuant to the Oklahoma Ground Water Laws, but such right is subject to Article 2, Sec. 23, of the Constitution, which protects adjacent landowners in the event they suffer damages.

In examining and analyzing defendants' argument and briefs in support thereof, we find that they are based upon defendants' general assumption that the Corporation Commission has the jurisdiction and power to authorize the appropriation and use of fresh ground water for injection purposes in secondary recovery operations. Therefore, the first issue that we should consider and determine is:

'When the Corporation Commission creates a unit for secondary recovery purposes, does it have the jurisdiction and power to authorize the appropriation and use of fresh ground water for injection into the unit?'

In resolving this issue we must be cognizant of the well settled rule that the Corporation Commission is a tribunal of limited jurisdiction, and that it has only such jurisdiction and authority as is expressly or by necessary implication conferred upon it by the Constitution and statutes of this state. See Kingwood Oil Company v. Hall-Jones Oil Corporation, Okl.,396 P.2d 510. If our Constitution and statutes have not conferred upon the Corporation Commission, either expressly or by necessary implication, the jurisdiction and power to authorize the appropriation and use of fresh ground water for injection purposes in a secondary recovery project, the Commission's Order No. 61304, defining 'water', as used in the plan of unitization, to include fresh ground water is void. See Gulf Oil Corporation v. State, Okl.,360 P.2d 933. If such order is void, the same confers no rights...