(dissenting):
I respectfully dissent, but at the same time I hasten to point out that I agree with all points of the opinion except with the part that denies Transwestern the right to condemn the leasehold interest of Kerr-McGee. 15 U.S.C. § 717f(h) authorizes the holder of a certificate of public convenience and necessity, here Transwestern, to exercise the right of eminent domain whenever appropriate. It says further that when he cannot by contract or otherwise agree with the owner of property “to the compensation to be paid for, the necessary right-of-way to construct, operate, and maintain a pipe line or pipe lines for the transportation of natural gas, and the necessary land or other property” or “for the location of compressor stations, pressure apparatus, or other stations or equipment necessary to the proper operation of such pipe lines”, it may acquire the same by eminent domain. At bar Transwestern seeks to employ its power *885of condemnation to protect its compressor station, thereby to insure continued operation of its pipeline.
My main problem with part II of the majority opinion is that it gives a literal interpretation to the word “owner” and declares that the United States is the owner and a necessary party and cannot be sued or joined; but there is no interest of the United States in controversy. The only genuine issue is whether the right of eminent domain allows the taking of a leasehold interest such as Kerr-McGee has, and it is clear from a reading of the entire section under scrutiny that it contemplates the appropriation of any necessary right-of-way, land or other property.
The interest of the owner of a leasehold, even a leasehold granted by the United States,1 continuously stands in the shadow of condemnation from the government or its delegate on the payment of just compensation. United States v. Fisk Bldg., 99 F.Supp. 592 (S.D.N.Y.1951); United States v. Certain Parcels of Land in Baltimore, Maryland, 55 F.Supp. 257 (D.C.Md.1944); Leonard v. Autocar Sales and Service Co., 392 Ill. 182, 64 N.E.2d 477, cert. denied, 327 U.S. 804, 66 S.Ct. 968, 90 L.Ed. 1029, rehearing denied, 328 U.S. 878, 66 S.Ct. 1118, 90 L.Ed. 1646, 328 U.S. 879, 66 S.Ct. 1339, 90 L.Ed. 1647 (1946). In undertaking such proceedings, the condemnor certainly does not take the entire fee where, as here, only the leasehold interest is necessary. See United States v. Fisk Bldg., suipra, wherein the court upheld the power of the Administrator of General Services to condemn the lease on two floors of an office building in New York.
I submit that Transwestern is empowered to condemn Kerr-McGee’s leasehold in the area in question and does not need the United States as a party. A somewhat similar case was before the United States District Court for the Western District of Pennsylvania in 5655 Acres of Land and Coal in Indiana County, Pennsylvania v. Texas Eastern Transmission Corp., 190 F.Supp. 175 (D.C.W.D.Pa.1960). The statute we are now considering was also there involved. Plaintiff owned coal and mining rights as well as waivers of rights to surface support and a release from damages to surface improvements. The defendant was a natural gas company which had constructed a pipeline which encroached on plaintiff’s mining interests without undergoing condemnation proceedings. In other words, as in the case at bar, the transmission company was in effect a trespasser. The plaintiff brought an action to recover compensation. The court recognized that the transmission company had a right to maintain its pipeline despite the existence of plaintiff’s property right to mine the coal. It was said that where a corporation has employed its power of eminent domain in a defective manner, the aggrieved party has a right to damages in trespass or may treat the action as one in condemnation giving rise to just compensation.
At bar Transwestern’s encroachment is to be treated as an exercise of its power of eminent domain. Unquestionably Kerr-McGee is entitled to just compensation for the reasonable market value of its leasehold estate — the reasonable market value, no doubt, of the minerals involved. The government has no interest in this except to require Kerr-McGee to account to it for its interest in whatever it receives.
To hold that the government must be formally joined, even though it has granted Transwestern’s right of eminent domain, puts form ahead of substance. Also, a literal reading of the majority decision could seriously curtail the exercise of the power of eminent domain by pipeline companies.
Finally, I foresee that this decision may well place Transwestern in a posi*886tion which is not only disadvantageous in relation to Kerr-McGee, but it may also subject it to hardship greatly disproportionate to the injury which its pumping station created.
. Cox v. Revelle, 125 Md. 579, 94 A. 203 (1915), recognized the principle that a leasehold derived from the sovereign is subject to condemnation.