concurring specially.
I reluctantly concur in the majority opinion. Although I agree that because the appeal is from an order dissolving a temporary restraining order the issue before us is whether or not the trial court abused its discretion, I am also .aware that once a hearing has been held on a petition for a temporary restraining order, as a practical matter there is little to be added by the parties at subsequent hearings. Here, there was a hearing and although it was on a motion to dissolve the temporary restraining order I doubt many additional facts will be adduced at future hearings. The materi*134al facts are not at issue and it is doubtful the reversal and remand will accomplish anything except delay. Unless the parties agree to resolve their differences the same questions may well be before us again on an appeal from an order denying a permanent injunction. I would prefer that we answer the questions now and avoid further delay to the attempt of the Syversons to develop their minerals. However, I defer to the majority opinion’s somewhat technical definition of the issue before the court because I recognize the possibility, as opposed to the probability, that future hearings in the trial court will develop facts or issues not presently before the court.
Nevertheless, I take this opportunity to express my concern about the failure of Amerada to appeal the Industrial Commission’s Order No. 2970 referred to in footnote 3 of the majority opinion. Although in that order the Commission affirmatively stated it made no finding as to the ownership of the surface and downhole equipment in the Syverson well, it is clear from other findings in the order that the Commission determined that the well was deserted pursuant to Section 43-02-03-55 of the rules and regulations of the Industrial Commission as set forth in the North Dakota Administrative Code. It is also clear that the Commission found the well was an abandoned well which it could require Amerada to plug in accordance with Section 43-02-03-55, N.D.Admin.Code, but that such requirement would constitute “economic waste” in view of Furlong’s intent to develop the well.
It is apparently Amerada’s position that the well was not abandoned. Despite the fact the order gave Furlong the authority to enter the well, Amerada took no appeal from the order. If an appeal had been taken from the order the issues now before us could have been resolved in a timely fashion.
The Commission apparently has no authority to determine the ownership of the equipment. But if, as the Commission determined, the well was abandoned, it is questionable that Amerada had any right to the surface and downhole equipment after 13 years. See Summers Oil and Gas, Sec. 526. Amerada’s position is that it may need the well for injection for enhanced recovery purposes. Because of the Commission’s order that Amerada had not presented evidence to the Commission’s satisfaction that the well has been or will be used for enhanced recovery or salt water disposal pursuant to the requirements of Section 43-02-03-55, Amerada’s failure to appeal the order may now foreclose judicial review of that determination.
SAND and PAULSON, JJ., concur.