concurring specially:
I concur with the majority opinion insofar as it holds that the Surface Damages Act does not afford a remedy for nuisance occasioned by a drilling operation. I would, however, point out that a harmonious construction of the Surface Damages Act, along with the long established law of nuisance, does not preclude a surface owner from bringing a cause of action for nuisance. The Surface Damages Act does not abrogate the law of nuisance as it relates to the oil and gas industry where a cause of action founded upon nuisance is well pled and proven by the evidence. See, Briscoe v. Harper Oil Company, 702 P.2d 33 (Okla.1985). Thus, the standards for *1010imposing liability under the Surface Damages Act are not identical to the standards for imposing liability a cause of action for nuisance. Is it to be said that unreasonable acts to property are actionable, but that unreasonable acts to the person are without any remedy? Clearly, in the latter instance, although what is expressly provided and authorized under the terms of the Surface Damages Act cannot be deemed a nuisance, still where actions go beyond that expressly provided and authorized and also are unreasonable and injurious as within the legal confines of established theories of nuisance, injury to the person by reason thereof must be compen-sable. This is especially apparent where pursuant to the Surface Damages Act compensation may be assessed even before actual operations are completed. A construction of the Surface Damages Act which precludes a remedy for injury to person in this context, additionally would contravene Okla. Const Art. 2, Sec. 6, which states:
“The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; ...”
Moreover, recovery under the Surface Damages Act and the law of nuisance cannot be theoretically lumped together, for the Surface Damages Act does not condemn property in fee simple. Thus, where properly pled, a matter such as this would come before the Court both on the statutory surface damage action and the nuisance action, a jury upon proper instructions — and not the appraisers’ — would assess the award for nuisance.
I accordingly agree that this case must be reversed and remanded.