This appeal is from an instructed verdict for defendants and a judgment thereon. In the drilling contract the lessee, Cumley, agreed to drill the wells to a depth of 2,000 feet unless oil or gas was obtained in paying quantities at a lesser depth. Well No. 1 was drilled to a depth of 1,775 feet and oil in paying quantities was found. Well No. 2 was drilled to a depth of 1,790 feet, well No. 3 to a depth of 1,875 feet, well No. 5 to a depth of 1,790 feet, and well No. 6 to a depth of 1,803 feet. Well No. 4 was drilled to a depth of 1,950 feet, and it is admitted by plaintiff in the testimony that F. Stine waived the sinking of this well to an additional depth of 50 feet. In effect, he does not rest his claim of forfeiture on a failure to drill No. 4 to a depth of 2,000 feet. It may be that the lessor, and perhaps the lessee, at the time they entered into the contract, believed, and had reason to believe, that it would be necessary to drill each well down to a depth of 2,000 feet in order to test thoroughly the land for oil sands; that in all probability there was an oil sand at a depth of approximately 2,000 feet. By the contractual agreement entered into by the lessor and lessee, the lessee agreed and stipulated that he would drill each well to a depth of 2,000 feet. None of the wells were drilled to that depth. It is a fact well known by oil men and drillers, and also known to the general public, that oftentimes there is a dip in the oil sands, so that one well, in order to reach the oil sands, must be drilled considerably deeper than another well on an adjoining tract which has produced oil in paying quantities. For instance, the old oil field of Spindle Top, as is currently known from newspaper reports and other information, was for a number of years practically abandoned because the wells drilled ceased to produce oil in paying quantities. But recently by going considerably deeper they have brought in a number of wells producing oil in paying quantities. Doubtless such an experience is true of many other oil fields in this state and in other oil states. It is true that defendants pleaded that the plaintiff had waived the drilling of the wells to a greater depth, but this the plaintiff denied in his pleadings and in his testimony. Callendar testified that it was discussed and understood between him and Stine that the first well was to be drilled to a depth of 2,000 feet unless oil or gas was encountered at a lesser depth, and that Stine agreed that it would be absurd, after the completion of the first well, which produced oil in paying quantities, that the other wells should be drilled to a depth of 2,000 feet. There is further evidence to the effect that Stine did not complain of the failure to drill four of the subsequent wells to a depth of 2,000 feet, and that by his course of conduct it might reasonably be claimed he practically waived such stipulation. But he testified that the drillers would not tell him how deep the wells were being drilled, and that he did not know until he had gotten the logs of the wells from the office of the railroad commission, whose duty it is to exercise supervision over the drilling of oil and gas wells.
The writer thinks it is probable that if the question of waiver had been submitted to the jury, that the jury would have found that the lessor had waived the drilling to 2,000 feet of the four wells, and that the evidence would have been sufficient to sustain such finding. But in view of the conflict of testimony on this point, the writer does not think that the court was authorized to render a judgment upon a peremptory instruction to that effect. The writer is well acquainted with the line of authorities, some of which are quoted from in the majority opinion, such as Decker v. *Page 307 Kirlicks, 110 Tex. 90, 216 S.W. 385, and is also aware of the holding of the authorities that a forfeiture is a harsh remedy, and not favored by law, and should not be enforced or sustained unless fully supported by the evidence. But he does not think that in this case the evidence justifies the trial court in instructing a verdict for the defendant. Therefore, briefly, because of the pressure of other official business, the writer respectively dissents from the conclusion of the majority on this point.