Day v. State Corporation Commission , 185 Kan. 382 ( 1959 )

185 Kan. 382 (1959) 345 P.2d 651

MAYME D. DAY and RUBY BURGESS, Appellees,
v.
STATE CORPORATION COMMISSION OF THE STATE OF KANSAS, Appellant, THE TEXAS COMPANY and COLUMBIAN FUEL CORPORATION, Intervenors, Appellants.

No. 41,102

Supreme Court of Kansas.

Opinion denying rehearing filed November 7, 1959.

OPINION DENYING REHEARING

The opinion of the court was

ROBB, J.:

To prevent any misunderstanding in regard to the jurisdiction of the state corporation commission in attributing acreages to a particular gas well for the purpose of determining the allowable of such gas well for production of gas therefrom, the syllabus in Day v. State Corporation Commission, 185 Kan. 165, 341 P.2d 1028, is modified in the 4th and 5th lines thereof by substitution of the word attributing for the words "unitization and pooling" so the syllabus in pertinent part reads:

"In a proceeding originating before the state corporation commission by reason of certain producers filing an application seeking an exception to paragraph `g' of the basic proration order of the Hugoton gas field for the attributing of non-contiguous and non-adjoining acreages...."

The corresponding portions of the opinion are also modified so that in line 13, page 166, as well as in line 14, page 167, where the words "unitization and pooling" appear, the word attributing is substituted therefor.

The final paragraph on page 167 is stricken and the following is incorporated into the opinion in lieu thereof:

The trial court found: "Notice was given as provided by 55-705b, 55-706 and 55-605, G.S. 1949, but the record shows that neither of plaintiffs had actual notice of the hearing." (Our emphasis.)

The record fully supports this finding in that the notice was published but a copy thereof was not mailed to each person interested in the hearing according to the latter part of G.S. 1949, 55-605, and as we construe that part of the statute, it requires the applicants (here intervenors) to make known to the commission the names and addresses of the parties who are interested in and affected by the hearing on the application and the results thereof.

Since the record fails to affirmatively show any necessary elements of acquiescence or estoppel on the part of plaintiffs, landowners, and in view of what was said in the original opinion in regard to mailing notice under G.S. 1949, 55-605, supplemented by Mullane v. Central Hanover Tr. Co., 339 U.S. 306, Syl. ¶ 3, 70 S.Ct. 652, 94 L. ed 865, the petition for rehearing is denied.

PRICE, J., dissents, being of the opinion that a rehearing should be granted.