with whom LAVENDER and HARGRAVE, JJ., join, dissenting.
¶ 1 The case at bar involves whether or not we allow a trial court to try a nuisance claim in a proceeding that originated under the Surface Damage Act. It is clear a plaintiff can bring a cause of action for nuisance in a separate action. However, the majority opinion today holds that we do both in the same trial. A proceeding under the Surface Damage Act and a cause of action for nuisance are incompatible and require separate trials. For the reasons stated herein, I respectfully dissent. I would hold that the trial court erred when it allowed respondents to amend an answer to include a related tort claim in a proceeding that originated under the Surface Damage Act.
¶ 2 The Surface Damage Act does not afford a remedy for nuisance occasioned by a drilling operation. Dyco Petroleum Corp. v. Smith, 1989 OK 51, 771 P.2d 1006. The measure of damages under the Act “is the difference in the fan- market value of the entire tract immediately before the drilling operations and the fair market value of the tract immediately after the drilling operations.” Houck v. Hold Oil Corp., 1993 OK 166, ¶ 41, 867 P.2d 451, 462. Under the Surface Damage Act, damages must be classified as temporary or permanent, Davis Oil Co. v. Cloud, 1986 OK 73, ¶ 22, 766 P.2d 1347, 1352, and the damage standard is the diminution in the fair market value of the surface property resulting from the drilling operations. Houck v. Hold Oil Co., 1993 OK 166, ¶ 39, 867 P.2d 451, 461-62. Diminished value is that of the entire tract of land caused by the drilling operations, as opposed to the difference in the value of the specific land that is harmed. Houck, 1993 OK 166, ¶ 40, 867 P.2d 451, 462.
¶ 3 In a proceeding under the Surface Damage Act, factors that may be considered by a jury in arriving at the decrease in fair market value include: location or site of drilling operations; quality and value of the land used or disturbed by the drilling operations; incidental features resulting from the drilling operations that may affect convenient use and further enjoyment; inconvenience suffered in actual use of land by the operator; whether the damages, if any, are of a temporary or permanent nature; changes in the tract’s physical condition; irregularity of shape and reduction or denial of access; destruction, if any, of native grasses and growing crops, if any, caused by drilling operations. Davis Oil Co. v. Cloud, 1986 OK 73, ¶ 22, 766 P.2d 1347, 1352. These factors are not to be considered as separate items of damage, but solely as they impact the dimin-ishment in value of the surface estate before and after drilling operations. Davis Oil Co., 1986 OK 73, ¶ 22, 766 P.2d 1347, 1352; Houck, 1993 OK 166, ¶ 41, 867 P.2d 451, 461. Personal inconvenience of a surface owner does not constitute an additional or separate damage element under the Surface Damage Act. Darling v. Quail Creek Petroleum Management Corp., 1989 OK CIV APP 54, ¶ 8, 778 P.2d 943, 945.
¶4 The majority opinion today fails to appreciate that a nuisance claim raises additional issues such as causation, liability, and applicable statute of limitations. A claim under the theory of private nuisance might not arise until a date after operations have ceased. The measure of damages for private nuisance such as pollution may include cleanup costs of an oil and gas lessee’s surface impediments not necessary for its operation, damages for use of the land by the lessee for more than a reasonably necessary period of time of its operations, for the lessee’s unnecessary use of the land area in its operations, and for temporary and permanent injury to the land.1 Tenneco v. Allen, 1973 OK 129, ¶¶ 17-20, 515 P.2d 1391, 1394-95. The measure of damages for permanent damage in a nuisance case is diminished value, that is to say, the difference between the fair cash *1118market value of the land just prior to the injury and the fair cash market value of the land just thereafter. Pace v. Massey, 186 Okla. 703, 1940 OK 138, ¶ 6, 100 P.2d 440, 441.
¶ 5 Damages in an action for private nuisance may include damages for temporary and permanent injury to land, so long as no double recovery is allowed for the same injury. Briscoe v. Harper Oil Co., 1985 OK 43, ¶ 9, 702 P.2d 33, 36. Under a private nuisance theory, personal harm, inconvenience and annoyance are a separate damage element. Nichols v. Mid-Continent Pipe Line Company, 1996 OK 118, ¶ 11, 933 P.2d 272, 276. In addition, a nuisance cause of action places at issue liability, causation and the possibility of punitive damages, elements missing from a proceeding under the Surface Damage Act.
¶ 6 If a nuisance claim is tried to the same jury that hears a proceeding under the Surface Damage Act, confusion will abound as to what testimony relates to its assessment of damage items it may consider under the Act versus the nuisance theory. Any judicial convenience and efficiency is outweighed by the likelihood of jury confusion in its assessment of damage and the potential for double recovery. Also, it would be impossible to ascertain on appeal whether the jury relied upon a flawed notion of compensable damage elements in reaching its verdict.
¶ 7 A proceeding under the Surface Damage Act and a cause of action for nuisance are incompatible and require separate trials. Accordingly, I must dissent. I would recast the petition for certiorari to an application to assume original jurisdiction, assume original jurisdiction, grant the writ and hold that a surface owner must file a separate tort claim in a different case from the case in which a party has initiated a proceeding under the Surface Damage Act.
. "[D]amages adjudged in an action predicated on a nuisance theory may include temporary and permanent injury to land. Temporary damages in the context of an oil and gas nuisance are by definition abatable. Damages reasonably incapable of abatement are permanent." Briscoe v. Harper Oil Co., 1985 OK 43, ¶ 9, 702 P.2d 33, 36.