dissenting.
Genuine issues of material fact preclude summary judgment in this case. Denbury Resources, Inc. describes the oil production purpose of its “Green Pipeline” on its web page, a paper copy of which is in the record, as follows:
Our tertiary operations are our core assets and our principal focus.... During the last eight years, we have learned an extensive amount about tertiary operations and working with carbon dioxide (“C02”), and our knowledge continues to grow. We like these tertiary operations because (i) tertiary investments provide a reasonable rate of return, even at relatively low oil prices of around $30 per *882barrel, (ii) tertiary flooding exhibits a lower risk profile than conventional exploration and development, and (iii) to date, in our region of the United States, we have not encountered any industry competition. Generally, from the Texas Gulf Coast to Florida, there are no known significant natural sources of carbon dioxide except our own, and these large volumes of C02 are the foundation for our entire tertiary program.
We believe that having sufficient C02 volumes is the key ingredient, if not the most important factor to our tertiary operations. We acquired our Jackson Dome (C02) source field in February 2001, giving us control of most of the C02 supply in Mississippi....
We have entered into three agreements, and are having various levels of discussions with many others, to purchase (if the plants are built) all of the C02 production from man-made (anthropogenic) sources of C02 from planned solid carbon gasification projects....
We see these sources as a possible expansion of our natural Jackson Dome source, assuming they are economical, and we believe that our potential ability to tie these sources together with pipelines will give us a significant advantage over our competitors, in our geographic area, in acquiring additional oil fields and these future potential man-made sources of C02.
We are also working on a 24" pipeline, named the Green Pipeline, to transport C02 to Hastings Field and our 2007 Southeast Texas acquisitions, Oyster Bayou, Fig Ridge and Gillock Fields.... Initially, we anticipate transporting C02 from our natural source at Jackson Dome in this line, but ultimately we expect that it will be used to ship predominately man-made (anthropogenic) sources of C02.
During November 2006, we acquired an option to purchase, on September 1, 2008, or September 1, 2009, with an effective date of January 1 of the following year, Hastings Field, a strategically significant potential tertiary flood candidate located near Houston, Texas.
We believe that Hastings Field possesses ... potential from C02 tertiary floods, more reserve potential than any other single field in our inventory. Currently, we are working on the right-of-ways required to build a pipeline we have named our Green Pipeline to transport C02 to this field.... The Hastings Field was the first significant strategic addition in this area, giving us an anchor field in this region. We have already expanded our field inventory in this area as we purchased Oyster Bayou and Fig Ridge Fields with tertiary potential for $42 million in March 2007 and other small fields, Gillock Fields near Hastings Field, in late 2007.... [0]ur goal is to continue to pursue the acquisition of other fields in this area, which will help reduce the cost of C02 for each field by fully utilizing the proposed pipeline and thereby reducing our transportation cost per Mcf.
This declaration is some evidence Denbury intends to fully utilize the Green Pipeline as an essential part of its tertiary oil production operations. Denburys description of the pipeline’s purpose indicates the C02 it transports in the pipeline will be its own, whether purchased from man-made sources or supplied by its own Jackson Dome natural source. How then does Denbury Green have the power to take the *883private property of another to accomplish this purpose?
Denbury relies on Chapter 111 of the Natural Resources Code as a grant of eminent domain. Eminent domain is the power to take private property for public use, and is essentially a right of the state to reassert its control over property for the public good. See generally Tex. Const. art. I, § 17. The Texas Constitution limits the power of eminent domain. See id. The Constitution “prohibits the taking of property for private use.” Maher v. Lasater, 163 Tex. 356, 354 S.W.2d 923, 924 (1962). In Maher, the Texas Supreme Court held:
The provision operates as a limitation on the power of the Legislature as well as a limitation on the power of governmental agencies and public and private corporations. (citation omitted). The Legislature may not authorize that which the Constitution prohibits....
[A] mere declaration by the Legislature cannot change a private use or private purpose into a public use or public purpose. (citations omitted). While a legislative declaration in this and kindred fields will be given great weight by the courts, the ultimate question of whether a particular use is a public use is a judicial question to be decided by the courts.
Id. at 924-25. In construing the statute, we presume the Legislature intended to comply with the Constitution. See Tex. Gov’t Code Ann. § 311.021(1) (Vernon 2005).
Consistent with the Texas Constitution, Chapter 111 of the Natural Resources Code is not applicable to pipelines used solely for private purpose. See Tex. Nat. Res.Code Ann. § 111.003 (Vernon 2001). Section 111.003(a) states, “The provisions of this chapter do not apply to pipelines that are limited in their use to the wells, stations, plants, and refineries of the owner and that are not a part of the pipeline transportation system of a common carrier as defined in Section 111.002 of this code.” Id. Section 111.002(6) defines a C02 pipeline owner as a common carrier only if the owner, among other things, transports C02 “to or for the public for hire[.]” Tex. Nat. Res.Code Ann. § 111.002(6) (Vernon Supp. 2008).
Denbury argues that by agreeing to be regulated by the Commission it automatically became a common carrier. The Constitution does not authorize the taking of private property for regulated private use. Tex. Const, art. I, § 17. The use must be a public one. Id.
Denbury argues further that it must now by law permit others to use its pipeline. Merely offering a transportation service for a profit does not distinguish a private use from a public use. Private carriers transport in particular instances for those they choose to contract with, and make individualized decisions whether and on what terms to transport. A common carrier is one involved in a quasi-public activity, and transportation is, in fact, available to all indifferently. Is the intent to make a pipeline running from a Den-bury well to a Denbury well available for use by the “public for hire” reasonable? This summary judgment record is not entirely clear on that question.
We should not grant conclusive effect to Denbury’s filings with the Railroad Commission. The Commission’s letter simply states that Denbury has made the necessary filings to operate as a common carrier. Declaring a use public or private is a judicial decision. See Maher, 354 S.W.2d at 925. We must give great weight to the declarations of the Legislature and the Railroad Commission, but we should not assume either the Legislature or the Railroad Commission intended to authorize an unconstitutional private taking. We *884should presume that a constitutional declaration was intended.
Summary judgments are used to dispose of “patently unmeritorious claims.... ” City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 n. 5 (Tex.1979). When there is only a question of law involved and no genuine issue of material fact exists, a conventional trial before a fact-finder may not be necessary. Here, however, genuine issues of material fact exist. We should reverse the summary judgment and remand the case for a trial at which the disputed facts can be determined by a fact-finder. If Denbury is successful at trial, then it can proceed with the exercise of eminent domain powers, and appellant should be enjoined from interfering. Otherwise, the Texas Constitution prohibits an attempt to take private property without the owner’s consent. I respectfully dissent.