These grazing leases are made for five years and the lessee is required to pay in advance, either in cash or by deferred payments, for the full acreage and for the full term. It is not unreasonable that easements are granted by the State upon the condition named in the grant. In other words, the State has received from the grazing lessee payment in full (or its equivalent) for all the grass and grazing rights on and in the State's lands, and the State will not permit a subsequent grant to deprive him of it without just compensation.
It is said in the majority opinion: "* * Since the enjoyment by defendant of this grass was by sufferance merely, subject to the deprivation thereof by the exercise of reserved rights of way, it is difficult to understand how the loss thereof is actionable." Also: "* * * If the lessee obtains a lease upon terms which embody a disadvantage, he is bound by his bargain. If he would secure such immunity from detriment to his lease, he might ordinarily get it by paying for such immunity."
The State reserved the right to grant easements for pipe lines, it is true; and could have done so without conditions. But it could make its own terms and conditions, which an applicant for an easement must accept to secure it. The State elected to make the condition that appellant should pay to the State's tenant any damage proximately resulting from laying, *Page 231 maintaining, operating and removing the pipe line. The language is plain, the meaning clear, and the requirement just. The appellee was entitled to compensatory damages. The motion for a rehearing should be sustained.