(dissenting):
I think the judgment should be reversed. The power of eminent domain may be delegated by the legislature to private corporations which discharge a public duty, or are designed to promote the public convenience. (Irrigation Co. v. Klein, 63 Kan. 484, 65 Pac. 684; Black on Constitutional Law, 4th ed., 458.)
The legislature of this state has delegated that power to railroad companies, macadam road, plank road, telegraph, hydraulic, gas, oil, pipe-line, irrigating, and other public-service companies.
Appellees contend that the appellant has no right under the laws of this state to condemn the land of appellees for a gas-storage reservoir. It will be observed that the corporation statute, G. S. *3981935, 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 in this article for railway corporations as far as applicable.” The contention that the appellant can only take land for a right of way for a pipe line is not borne out by the statute. The express language is that lands may be appropriated “for the use of” such companies “and for the piping of gas.”
Oil, gas and pipe-line companies are authorized to take land in the same manner as railway corporations as far as applicable. Does this refer to matters of procedure alone? If so, it would appear to be a useless duplication, as the eminent-domain statute G. S. 1935, 26-101, provides the procedure for corporations having the right of eminent domain. The more rational construction would be that such corporations may take land for purposes similar to the purposes allowed railway corporations. The railway statute is to be applied to pipe-line companies as far as applicable. Under G. S. 1935, 66-901, railways may take land deemed necessary for sidetracks, depots, workshops, water stations, etc. So we have held railway companies may take land for a spur track (Dotson v. Railway Co., 81 Kan. 816, 106 Pac. 1045) and land separate and apart from its right of way for a water station. (Dillon v. Railroad Co., 67 Kan. 687, 74 Pac. 251.)
Under our statute, G. S. 1935, 66-105, pipe-line companies are declared to be common carriers. Under 66-104, companies organized for the conveyance of oil and gas through pipe lines for general commercial purposes are declared to be public utilities. As such common carriers and public utilities they are subjected to supervision and regulation by the state. (G. S. 1935, ch. 66.) In Dillon v. Railroad Co., supra, it was said: “Railroad companies are public carriers and are properly held to the highest accountability in the performance of their duties. It is highly important to the general traveling public, as well as to business interests, that such corporations have exclusive possession and uninterrupted control of all property, the use of which is necessary in the discharge of this service.” (p. 692.) The same reasoning applies to this utility.
It will hardly be contended that the power of eminent domain granted to gas and pipe-line companies is limited to a mere right of way for the pipe line. Equipment necessary for the transportation of gas through pipe lines is thus stated by counsel for appellant:
*399“Compressor stations are necessary along that line at intervals not greater than seventy-five miles, ordinarily, to force the gas through the line; fence stiles and gates are necessary for patrolling the line; scrubbers are necessary to clean the gas that goes through the line; pipe yards and warehouses at intervals along the line are necessary; regulators are necessary to regulate the pressure at which the gas is delivered; meters and measuring stations are necessary to measure the amount delivered; heaters and heater houses at metering or regulating points are necessary; gate-valve assemblies are necessary to change the direction of the flow of gas and shunt it into other lines; large header or expansion casing and multiple pipes at river crossings are necessary; dehydrators are necessary to remove the moisture from the gas; drips are necessary to remove condensation and precipitation of liquids; enveloping casings are necessary at highly hazardous points; and storage reservoirs or expansion chambers are necessary to give the proper dependability, pliability and continuity to the necessary deliveries. A mere pipe without, any of these things would be as useless as the case of a watch without the works. We therefore contend that storage reservoirs are nothing more than expansion chambers and are an integral part of the transportation or piping of gas. If, where the 16-inch line runs through the' Strain land, a pipe many times the diameter of that line had been inserted as an expansion chamber, the right to do so would not have been doubted. The storage reservoir is not different in kind but only in degree from the pipe that holds the gas. It is very usual for companies to insert larger portions of pipe and, indeed, to erect aboveground holders, to secure this pliability or power of accommodation of supply to sudden changes in demand. We do not think anyone would contend that these enlarged pipes’ or these holders were not an integral part of the transportation of gas.”
It would seem that sites for compressor stations, pipe yards and warehouses, storage reservoirs and expansion chambers, etc., are as necessary for this public utility as sites for depots, workshops and switch yards are to a railroad company. The testimony in the record as to the necessity for the gas-storage reservoir was uncontradicted. Under the statute, the pipe-line company is given the same right of condemnation as railway companies. That which is essential to its operation in the service of the public as a public utility is within the authority of the statute.
In the opinion of the court it is stated that if the appellant has a right to take land to store gas where the sand has been depleted of gas, it would have the same right to condemn land containing gas-bearing sand if such gas were needed in the conduct of its business— that it would disrupt the whole theory of gas ownership, production and distribution. In my view, this pronouncement completely overlooks the protection given the landowner by the settled law of eminent domain.
*400The purpose for which the power of eminent domain may be exercised must be public. The legislature cannot authorize a taking for a strictly private use, even upon payment of compensation. (20 C. J. 546.) The necessity and expediency of taking private property for public use under the power of eminent domain is a question for the legislature, with which the courts do not interfere. But the question of whether or not the purpose of the appropriation is a public one is a judicial question. (Irrigation Co. v. Klein, 63 Kan. 484, 65 Pac. 684.) In Rindge Co. v. Los Angeles, 262 U. S. 700, 43 S. Ct. 689, 67 L. Ed. 1186, it was said:
“The nature of a use, whether public or private, is ultimately a judicial question. However, the determination of this question is influenced by local conditions; and this court, while enforcing the fourteenth amendment, should keep in view the diversity of such conditions and regard with great respect the judgments of state courts upon what should be deemed public uses in any state. Fallbrook Irrigation District v. Bradley, 164 U. S. 112, 158, 160; Hairston v. Danville Railway, 208 U. S. 598, 606, 607 ... In determining whether the taking of property is necessary for public use, not only the present demands of the public, but those which may be fairly anticipated in the future, may be considered. Central Pacific Railway v. Feldman, 152 Cal. 303, 309.” (pp. 705, 707.)
An attempt by any public-service company to take gas sands, depleted or undepleted, if for a private purpose, would be unlawful. The landowners’ rights are protected by the law, and will be enforced by the courts.
If, on the other hand, the taking is for a public use, any property above or beneath the surface of the earth may be appropriated. Mr. Justice Brewer, speaking for the court in Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685, 17 S. Ct. 718, 41 L. Ed. 1165, said:
“All private property is held subject to the demands of a public use. The constitutional guarantee of just compensation is not a limitation of the power to lake, but only a condition of its exercise. Whenever public uses require, the government may appropriate any private property on the payment of just compensation ... It matters not to whom the' water-supply system belongs, individual or corporation, or what franchises are connected with it — all may be taken for public uses upon payment of just compensation.” (p. 689.)
In Strickley v. Highland Boy Gold Mining Co., 200 U. S. 527, 26 S. Ct. 301, 50 L. Ed. 581, condemnation of an aerial-bucket line from a mine upon the mountain side, across a placer-mining claim, to a railroad in the valley below, was sustained. If one mining company may condemn an aerial-bucket line over a neighboring mine as a public use, it would seem a pipe-line company could take depleted *401gas sands as a storage reservoir. The suggestion that such appropriation would establish a doctrine that would disrupt the whole theory of gas ownership, production and distribution would seem to be without any substantial foundation.
In La Harpe v. Gas Co., 69 Kan. 97, 76 Pac. 448, decided in 1904, the production and distribution of gas was recognised as a public necessity. Since that time it has become one of the most important industries of the state. A dependable, steady and uniform flow of gas by the pipe-line company is necessary to the comfort, health and safety of the people. A break in the pipe line might cause death and disaster in a hundred cities. Storage reservoirs are shown to be necessary for efficient service to the public, and to guard against the danger from interrupted service.
I think the authority to condemn this land is clearly given by the statute, and I am unable to see any merit in the other reasons advanced in the majority opinion.
In the larger view we have the same problem that confronted this court in McCann v. Telephone Co., 69 Kan. 210, 76 Pac. 870. It is to be regretted that the liberal outlook there expressed, and which has measurably contributed to the economic and social welfare of the state, has been departed from. If the doctrine of those who believed that “the whole duty of government is -to prevent crime and to preserve contracts” had prevailed in the great case of Charles River Bridge v. Warren Bridge et al., 11 Pet. 420, the construction of our railway systems, and the expansion of the country might have been retarded for a generation. (2 Warren, The Supreme Court, pp. 295, 312.)
Dawson, C. J., joins in this dissent.