55-1210. Property rights to injected natural gas established. (a) All natural gas which has previously been reduced to possession, and which is subsequently injected into underground storage fields, sands, reservoirs and facilities, whether such storage rights were acquired by eminent domain or otherwise, shall at all times be the property of the injector, such injector's heirs, successors or assigns, whether owned by the injector or stored under contract.
(b) In no event shall such gas be subject to the right of the owner of the surface of such lands or of any mineral interest therein, under which such gas storage fields, sands, reservoirs and facilities lie, or of any person, other than the injector, such injector's heirs, successors and assigns, to produce, take, reduce to possession, either by means of the law of capture or otherwise, waste, or otherwise interfere with or exercise any control over such gas. Nothing in this subsection shall be deemed to affect the right of the owner of the surface of such lands or of any mineral interest therein to drill or bore through the underground storage fields, sands, reservoirs and facilities in such a manner as will protect such fields, sand, reservoirs and facilities against pollution and the escape of the natural gas being stored.
(c) With regard to natural gas that has migrated to adjoining property or to a stratum, or portion thereof, which has not been condemned as allowed by law or otherwise purchased:
(1) The injector, such injector's heirs, successors and assigns shall not lose title to or possession of such gas if such injector, such injector's heirs, successors or assigns can prove by a preponderance of the evidence that such gas was originally injected into the underground storage.
(2) The injector, such injector's heirs, successors and assigns, shall have the right to conduct such tests on any existing wells on adjoining property, at such injector's sole risk and expense including, but not limited to, the value of any lost production of other than the injector's gas, as may be reasonable to determine ownership of such gas.
(3) The owner of the stratum and the owner of the surface shall be entitled to such compensation, including compensation for use of or damage to the surface or substratum, as is provided by law, and shall be entitled to recovery of all costs and expenses, including reasonable attorney fees, if litigation is necessary to enforce any rights under this subsection (c) and the injector does not prevail.
(d) The injector, such injector's heirs, successors and assigns shall have the right to compel compliance with this section by injunction or other appropriate relief by application to a court of competent jurisdiction.
History: L. 1993, ch. 102, ยง 1; July 1.
Law Review and Bar Journal References:
"Underground Fences and Storage Gas Migration: K.S.A. Section 55-1210 and Legislating Property Rights to Injected Natural Gas," Jacob L. Porter, 50 W.L.J. 177 (2010).
"Drinking a Milkshake from Someone Else's Private Collection: How the Rule of Capture Remains in Play for Storage Gas [Northern Natural Gas Co. v. OKEOK Field Services Co., 296 P.3d 1106 (Kan. 2013)]," Benjamin Kenneth Arthur Carmichael, 54 W.L.J. 397 (2015).
CASE ANNOTATIONS
1. Constitutional challenges to injector's right to natural gas migrated from adjoining property denied. Williams Natural Gas Co. v. Supra Energy, Inc., 261 Kan. 624, 625, 931 P.2d 7 (1997).
2. Lodestar method was appropriate for calculating attorney fees authorized by Kansas statute. Beck v. Northern Natural Gas Co., 170 F.3d 1018 (1999).
3. Plaintiffs entitled to attorney fees under subsection (c)(3) for damages to their businesses. Hayes Sight and Sound, Inc. v. ONEOK, Inc., 281 Kan. 1287, 1330, 136 P.3d 428 (2006).
4. Mentioned in action for conversion, unjust enrichment and remedies under K.S.A. 55-1210; summary judgment for defendant. Northern Natural Gas Co. v. Nash Oil and Gas, Inc., 506 F. Supp.2 d 520, 522, 524 (2007).
5. Statute modifies the historical rule of capture; testing of land adjacent to storage facility discussed. Northern Natural Gas Co. v. Nash Oil and Gas, 526 F.3d 626, 631 (2008).
6. Injector of natural gas which migrates loses title to gas which migrated prior to July 1, 1993. Northern Natural Gas Co. v. Martin, Pringle, et al., 289 Kan. 777, 217 P.3d 966 (2009).
7. Public utility's storage lease area, despite the absence of KCC approval, can qualify as part of its property that gives rise to right to test adjoining wells. Northern Natural Gas Co. v. L.D. Drilling, Inc., 618 F. Supp.2d 1280 (D. Kan. 2009).
8. Preliminary injunction preventing continued operation of gas wells in an expansion area pending a ruling on the merits of natural gas company's nuisance complaint conditionally granted. Northern Natural Gas Co. v. L.D. Drilling, Inc., 759 F. Supp. 2d 1282 (D. Kan. 2010).
9. Rule of capture makes no exception for gas that has migrated based on nonnatural means or direct result of action by the producer of gas. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 296 P.3d 1106 (2013).
10. Injector's ownership rights to storage gas limited to certified area where injector has already obtained the necessary storage rights. Northern Nat. Gas Co. v. Approximately 9117 Acres in Pratt, Kingman, 2 F. Supp. 3d 1174, 1186 (D. Kan. 2014).
11. Section authorizing recovery of attorney fees in similar actions under state law not applicable to action brought under federal natural gas act. N. Nat. Gas Co. v. Approximately 9117 Acres In Pratt, Kingman, & Reno Ctys., Kan., 114 F. Supp. 3d 1144, 1171 (D. Kan. 2015).
12. Gas company owned all gas within its certified field boundaries after date of certification under Kansas law and could not be required under rule of capture to compensate landowners and producers for value of "in place" storage gas in and under natural gas storage field on date of taking. N. Natural Gas Co. v. L.D. Drilling, 862 F.3d 1221 (10 th Cir. 2017).
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