dissenting.
The instructions contained a preliminary-statement of the issues as follows:
“1. The amount of damages to Plaintiffs’ growing crops, including grasses, resulting from Defendant’s drilling operations, not to exceed $2,000, the amount sued for.
2. Whether or not the Defendant’s drilling operations caused a private nuisance by:
a) Creating annoyance and inconvenience to Plaintiffs; or,
b) Using more land than reasonably necessary for a longer time than reasonably necessary;
c) And, the amount of damages, if any, resulting therefrom, not to exceed $25,000, the amount sued for.
3. Should you find Defendant’s drilling operations created a private nuisance, then you should determine the amount of damages for the reasonable cost of abating the nuisance by restoring the site to its former condition, such amount not to exceed $34,000, the amount sued for.
4. Whether or not Defendant’s drilling operations permanently damaged Plaintiffs’ land in an amount not to exceed $36,500, the sum sued for.”
The court then gave instruction No. 20. as follows:
“Under Issues No. 2, as previously outlined in these Instructions, if you find Plaintiffs have proved that Defendant’s drilling operations caused a private nuisance by:
a) Creating annoyance and inconvenience to plaintiffs; or,
b) Used more land than reasonably necessary for a longer time than reasonably necessary;
As defined in these Instructions, then you should determine the amount of damages, if a- proximately caused from Defendant’s drilling operations, in a sum not to exceed $25,000, the amount sued for.
Under Issue No. 3, as previously outlined to you in the Instructions, should you find that Plaintiffs have proved Defendant’s drilling operations created a private nuisance, as defined in these Instructions, then you should determine the amount of damages, if any, for the reasonable cost of abating the nuisance by restoring the site to its former condition, such amount not to exceed $34,000, the amount sued for.
Under Issue No. 4, as previously outlined to you in these Instructions, you should determine whether or not Plaintiffs have proved that Defendant’s drilling operations permanently damaged Plaintiffs’ land in an amount not to exceed $36,500, the amount sued for.
However, should you find from your consideration of all of the evidence and the Instructions contained herein, that the Plaintiffs have not met their burden of proof on the issue presented, then your verdict should be for the Defendant.”
The defendant had objected as follows: “Comes now the Defendant and objects to Instruction # 20 on the grounds that it does not fully and accurately set forth the laws of the State of Oklahoma with regard to the proper measure of damages in this case.
“Further, the Defendant asserts that the Instruction, as proposed, is misleading and will allow the jury, based thereon, to return a verdict for both restoration of the surface and for diminution in value. That the Instruction, as charged, does not — does not adequately set forth the law of the State of Oklahoma and should be denied — or should not be given.
“The Defendant also objects to the first page of the Instructions, the general charge, section — or paragraphs designated 2, 3 & 4 for the same reason, that it does not accureately (sic) reflect the law of the State of Oklahoma, it is misleading and allows the jury to return damages for both diminution in property and restoration. It does not adequately set forth the law with regard to nuisance.”
The jury returned its verdict in favor of the plaintiffs as follows:
*39Issue 1 Crop Damage $1,600.00
Issue 2 10,500.00
Issue 3 24,500.00
Issue 4 6,375.00
$42,975.00
Defendant complains that the instructions failed to correctly state the law, and misled the jury into awarding damages both for the cost of restoring the land and its diminution in value caused by the defendants drilling operation. No instruction made clear that double recovery was not permissible. Because of the way the instructions treat issues No. 3 (cost of restoration) and No. 4 (permanent damages), I must dissent from the opinion which affirms. I have no quarrel with the handling of No. 1 (crop damage) or No. 2 (nuisance).1
Our law on how to arrive at damages for injury to real property was pronounced before statehood. In Enid & A. Ry. Co. v. Wiley2 this court held:
“On the trial of the issues made by the pleadings the evidence as to the amount of damages should be confined to the cost of restoring the land to its former condition; also to the reasonable market value of the entire tract affected by the injuries, both immediately before the doing of the injurious acts and immediately after; and, if the diminution in value caused by the work done by the railway company is less than the cost of restoring the land, then such diminution is the true measure of recovery for the permanent injury to the land. On the other hand, if the cost of repairing the injury, or of restoring the land to its former condition, is less than the diminution in value, then such cost is the measure of recovery for such injuries. To this sum, when determined, may be added such sum as will reasonably compensate for the loss of the use of the portion injured during the time the railway company deprived the owners of its use.”3
The Court of Appeals of New York adopted the rule in 1892 in Hartshorn v. Chaddock.4 The Court said:
“[W]hen the reasonable cost of repairing the injury, or, in this case, the cost of restoring the land to its former condition, is less than what is shown to be the diminution in the market value of the whole property by reason of the injury, such cost of restoration is the proper measure of damages. On the other hand, when the cost of restoring is more than such diminution, the latter is generally the true measure of damages.”5
Illinois accepted the rule in 1906 in Swanson v. Nelson.6 In discussing this approach to determining the damages for injury to property, the court stated:
“The result of this reasonable view which has been taken by almost all courts of last resort where they have had occasion to pass on the matter has been to establish a rule that makes the measure of damages, in cases of injury to real estate, the cost of restoration or the difference in market value, as one or the other is the less amount.”7 (emphasis added)
*40Numerous states have expressly adopted this rule, including California,8 Idaho,9 Kentucky,10 Michigan,11 Missouri,12 Pennsylvania13 and Washington.14 In essence these and other jurisdictions recognize the rule that when the reasonable cost of repairing the injury to real property or the cost of restoring the land to its former condition is less than what is shown to be the diminution in the market value of the property as a whole by reason of the injury, such cost of restoration is the proper measure of damages. On the other hand, when the cost of restoring is more than such diminution, the diminution is the true measure of damages.
Corollary to this rule is the proposition that a party cannot have a recovery for permanent depreciation, or diminution in value, and also for the cost of restoration of the same land to its former condition.15 By statute our law limits damages to no more than plaintiff would have gained had defendant fully performed all obligations.16
To allow damages for both diminution in value and the cost of restoration for the same injury to property amounts to a double recovery,17 often mistakenly referred to as “double damages”.18 These are inconsistent remedies and both should not be allowed.19
It appears that the majority today has come under the belief that this rule has been modified in nuisance cases. Tenneco v. Allen20 is cited for the proposition that damages for temporary and permanent damages may be recovered on a nuisance theory. The Court’s second syllabus says:
“2. Damages adjudged in an action predicated on a nuisance theory may include clean-up costs of oil and gas lessee’s surface impediments not necessary for its operation, damages for use of land by lessee for more than a reasonably necessary period of time for its operations, for lessee’s unnecessary use of land area in its operations, and for temporary and permanent injury to the land.”
Tenneco cites Lanahan v. Myers21 which is a most instructive case and one whose holding has apparently brought us to our present posture. The plaintiff sued his oil and gas lessee for using an unreasonable amount of surface, temporarily and permanently damaging his land. Note this court’s disposition:
*41“We next come to defendant’s contention that the damages concerning this first cause of action were not established with any degree of certainty. Plaintiffs presented evidence that the reasonable and necessary cost of filling in the unused pits and repairing the roads which were causing temporary damage to plaintiffs’ land amounted to $430. Concerning permanent damage from excess roads and from salt water and oil which was permitted to flow over his land, one of plaintiffs testified that five to seven acres were ruined. This latter amount was in addition to the pits and roads temporarily damaged. He testified that the fair market value of his land was $100 per acre. Therefore the evidence would have sustained an award of $430 for temporary damages and $500 to $700 for permanent damage. Defendant did not present any evidence to dispute these damages. And he did not complain about the instructions to the jury. The jury’s verdict of $750 on this cause of action was sufficiently supported by competent evidence.”22 (emphasis added)
Lanahan thus gives rise to the proposition that both temporary and permanent damages may be recovered. But it does not modify Enid & A. Ry. Co. Under its evidence “this latter amount [the five to seven acres ruined] was in addition to the pits and roads temporarily damaged.”23 That is not double recovery. There could be no objection to allowing recovery for correctable, temporary damage to one portion of a leased tract in addition to permanent, diminished value damage to another portion of the tract, so long as the jury was properly instructed to avoid duplication of damages. But in this case no such caution was imparted. Our jury could have returned a verdict for $34,000 under No. 3, the cost of abatement, and added to that an award of $36,500 as permanent diminution in value and been in perfect compliance with the instructions. Up to now such a double recovery has been universally condemned.24
To discover how we find ourself in this position we must reexamine Tenneco v. Allen.25 There the landowner in his first cause of action claimed
1) The lessee used too much of the surface, depriving him of use, and allowed substances to flow over portions of his land not reasonably necessary, causing temporary and permanent damage. He sought $4,000 for this.
2) The lessee failed to clean up, leaving things behind that amounted to a nuisance, which could be cleaned up for $3,000.
In his second cause of action the plaintiff pleaded allegations of inconvenience to him by reason of the defendants nuisance, and sought $2,000 therefor.
The plaintiff offered evidence of loss of market value ($2,500 to $4,000) for escaping oil and salt water, and the cost of the “necessary clean-up work” ($3,000-$5,000).
The jury’s verdict was $5,150 on the first cause of action and $1,000 on the second. The defendant did not object to giving of instructions other than the court’s failure to give his requested No. 3, which would not have addressed the problem of “double recovery”.
I cannot agree that this Court in Tenne-co has consciously repealed the ancient prohibition against allowing double recovery, but that appears to be what the majority has done today, over objection to an instruction timely made to the trial court. If Tenneco v. Allen26 has authorized double recovery of damages then it should be overruled in so far as it has done so.
I would affirm Lanahan and the language of Tenneco in its second syllabus insofar as they stand for the proposition that temporary and permanent damages may be recovered for injury to real estate *42in the same case, provided that (1) the evidence supports a finding that temporary damage to one part is in addition to permanent damage to another part (as in Lana-han) and (2) the instructions prevent a double recovery of temporary and permanent damage for injury to the same portion of land. Because nothing in the instructions informed the jury that they should not give double recovery, and because the jury awarded $24,500 for restoration costs plus $6,375 for permanent loss of value, I would reverse and remand for a new trial with proper instructions.
I am authorized to state that SIMMS, C.J., and HODGES and OPALA, JJ. concur in the views expressed herein.
.In a previous instruction (No. 14, part 2) the court had correctly instructed as to the method of determining damage to land if permanent, that being the difference in fair market value before and after. The first part of No. 14 on method of determining damages if temporary is incomplete and inaccurate. It will not serve as ground for reversal, however, because it was given as requested by defendant. It reads:
"1. If you determine the damages to the real property to be temporary in nature, the damage is the reasonable cost of repairing the damage or restoring the property to its former condition if the cost of restoration is less than the fair market value of the property before and after the injury thereto, as described in Paragraph 2 below.”
. 14 Okl. 310, 78 P. 96 (1904); See also Ellison v. Walker, 281 P.2d 931, 932-3, (Okl.1955).
. Id. 78 P. at 99-100.
. 135 N.Y. 116, 31 N.E. 997 (1892).
. Id. 31 N.E. at 998.
. 127 Ill.App. 144 (1906).
. Id. at 149.
. Mozzetti v. City of Brisbane, 67 Cal.App.3d 565, 136 Cal.Rpt. 751, 757 (1973).
. Alesko v. Union Pc. R. Co., 62 Idaho 235, 109 P.2d 874, 877 (1941).
. Edwards & Webb Const. Co., Inc. v. Duff, 554 S.W.2d 909 (Ky.App.1977).
. Bluemlein v. Szepanski, 101 Mich.App. 184, 300 N.W.2d 493, 496-497 (1980).
. Curtis v. Fruin-Colnon, 363 Mo. 676, 253 S.W.2d 158, 164 (1952); Decker v. J.E. Siben Construction Co., 492 S.W.2d 155, 157 (Mo.App.1975).
. Rabe v. Shoenberger Coal Co., 213 Pa. 252, 62 A. 854, 855 (1906).
. Burr v. Clark, 30 Wash.2d 149, 190 P.2d 769, 774 (1948).
. Illinois Cent. R. Co. v. Elliott, 17 Ala.App. 134, 82 So. 582, 585 (1919); Atlantic Coast Line R. Co. v. Saffold, 130 Fla. 598, 178 So. 288, 290 (1938); 25 CJ.S. Damages § 84.
. 23 Okla.Stat.1981 § 96.
. Double Recovery. Recovery which represents more than the total maximum loss which all parties have sustained. Black’s Law Dictionary.
. Double Damages. Twice the amount of actual damages as found by the verdict of a jury allowed by statute in some cases of injuries by negligence, fraud or trespass. Black’s Law Dictionary.
. Illinois Cent. R. Co. v. Elliott, supra note 15; Atlantic Coastline R. Co. v. Saffold, supra note 15; Ellis v. New Orleans Great Northern R. Co., 169 La. 797, 126 So. 64, 67 (1930); Paper Products Mach. Co. v. Safepack Mills, 239 Mass. 114, 131 N.E. 288 (1921); Kugel v. Village of Brookfield, 322 Ill.App. 349, 54 N.E.2d 92, 96 (1944); Barker v. Publisher’s Paper Co., 78 N.H. 571, 103 A. 757 (1918); Strickland v. McElveen, 20 Ga.App. 320, 93 S.E. 24 (1917); Pickens v. Harrison, 151 Tex. 562, 252 S.W.2d 575 (1952); Beaty v. N.W. Electric Power Cooperative, 296 S.W.2d 921 (Mo.App.1956).
. 515 P.2d 1391 (Okl.1973).
. 389 P.2d 92 (Okl.1964).
. Id. at 93.
. Id.
. Supra note 19.
. Supra note 20.
. Id.