The reasoning upon which the above conclusion is based appears to me to be both illogical and illusory. I shall state concisely the reasons which I think justify my position.

There is nothing unusual or particularly striking about the instrument involved until we reach the concluding paragraph, which is a clause written in by longhand, as follows: *Page 54

"If no well is commenced within 60 days from the date of this lease by the Basin Drilling Company, then this lease shall terminate as to both parties."

The parties to that instrument fixed and determined their rights when they appended their signatures thereto. The positive, unequivocal and unambiguous wording of that clause evidences its inelasticity, inflexibility and decisiveness. Its provisions are inescapable. In a proper disposition of this clause, that clause must be dealt with first. It will be readily seen that it partakes of some of the qualities and characteristics of both a condition precedent and a condition subsequent, yet differs from each in that there is a determinable vested interest of 60 days differentiating it from a condition precedent, and an interest less than the whole distinguishing it from a condition subsequent. There is only potential life, or a potential interest, beyond this determinable interest of 60 days. The parties, in the light of that clause, could not possibly have any illusion of security. There was a positive, definite, certain and explicit obligation to commence a well within 60 days, upon failure of which, fatal consequences would inexorably ensue. That clause is an interdiction. It is a proscription, circumscribing a continuation of the interest and marking the period which is to determine it. The death of the lease could be forfeited only by the commencement of a well. Upon the fulfillment of that condition, the limitation is outgrown and the whole document vitalized. Only by the commencement of a well within the limited period of 60 days is life breathed into the remainder of the lease. Until that happens, and only until then, do the terms preceding that clause become alive and applicable. This clause does not have within it even the substance, or contemplation of postponement of the commencement of a well beyond 60 days by the payment of rent. It is obviously apparent that if that had been in the minds or contemplated by either party, it would have been much easier to emend the third paragraph of the lease by substituting the words 60 days for one year instead of adopting the much more difficult method of writing by longhand the entire clause above. This clause, which has within it the elements of a condition and a limitation, might easily be classified as a conditional limitation. Had the condition been met as was positively, definitely and specifically *Page 55 provided, then, according to the very nature of a conditional limitation there would have been a lapping over beyond the provisions of that fulfilled condition, and a breathing of life into the remaining provisions of the lease. Since this clause had in it the elements of life or death, and since by failure to meet the condition resulting in fatality to the instrument, and since in consequence of such failure, there is no survival beyond the limit of time placed in that conditional limitation, we never reach the position necessitating all this labyrinth of argument concerning, and attempted reconciliation of, the different portions of the lease, nor of the applicability of the statutes to leases providing in substance for the postponement of the drilling of a well by the payment of rent.

If this, then, is a definite and positive conditional limitation, and I am of the opinion it is, the first lease to the Basin Drilling Company was not in existence when the later lease was executed, and the judgment of the court below should have been reversed.

I am authorized to state that Judge Rees concurs in this dissent.