
    OKMULGEE PRODUCERS & MANUFACTURERS GAS CO. v. FRANKS.
    No. 25872.
    Sept. 15, 1936.
    C. B. McCrory and R. M. Cavanaugh, for plaintiff in error.
    T. H. Ottesen and Dick Jones, for defendant in error.
   WELCH, J.

This action was commenced by defendant in error, as plaintiff, to recover from the plaintiff in error, defendant in the court below, the sum of $80 and costs, for and on account of the alleged taking and appropriating, without his consent, of a strip of land about 1,300 feet long and of sufficient width in which to lay a pipe line along and under the state highway, and along and under the east side of plaintiff’s land.

The facts here are similar to, but not identical with, the facts in Nazworthy v. Illinois Oil Co., 176 Okla. 37, 54 P. (2d) 642. A portion of the pipe line here considered lies under and along the highway, while a portion thereof lies, not under the highway, but off the highway and across plaintiff’s land.

As to that portion of the pipe line laid under the highway, no recovery may be had under the rule of the Nazworthy Case, supra, while as to that portion laid, not under the highway, but off the highway and under plaintiff’s land, the plaintiff is entitled to recover under the rule announced by this court in Stanolind Pipe Line Co. v. Winford, 176 Okla. 47, 54 P. (2d) 646.

In the court below the case was determined upon the erroneous theory that the plaintiff was entitled to recover as to the entire length of the pipe line under consideration, and the record does not disclose 'in exact detail the amount of the pipe line laid under plaintiff’s land for which he is entitled to recover under the rules heretofore stated.

Upon the authority of Nazworthy v. Illinois Oil Co. and Stanolind Pipe Line Co. v. Winford, supra, the judgment appealed from is reversed, and the cause remanded, with directions to grant a new trial permitting plaintiff to recover only as to that portion of the pipe line which is laid, not under the highway, but off the highway and under and across plaintiff’s land.

McNEILL, C. J., OSBORN, V. C. I., and BAYLESS, BUSBY, PHELPS, CORN, and GIBSON, JJ., concur. RILEY, J., dissents.  