(dissenting).
Upon further consideration of the cause on rehearing, this member of the Court is unable to acquiesce in the refusal of appellants’ motion for rehearing, concluding rather that it should be granted and the cause reversed and remanded to the trial court for another hearing, upon considerations which, in very brief part, may be thus outlined:
(1) The trial court erred in instructing a verdict against the appellants, because the evidence raised material issues of fact over whether or not they had exercised — at least as affected the appellee — the diligence called for in the lease contract involved.
(2) The trial court erred in construing provisions 3 and 5 of such lease contract as giving to the appellee — notwithstanding the changed positions between it and appellants since the execution of the original lease — the absolute right to forfeit, without prior notice, all rights of the appellants in the remaining 3,600 acres of the land they had still retained.
(3) The trial court erred in holding that the purchase by the appellee — without notice to the appellants — on December 12 of 1944, from the trustees of the Davis estate, of the fee-simple title to all the Kokernot League, not only relieved the appellee itself of all further obligations concerning the development of any part of the land for oil and gas, but also conferred upon it the unconditional right to declare all rights and privileges in the leasehold as to the remaining 3600 acres of the appellants terminated, upon its mere claim that they had violated the continuous drilling-obligation —that is, paragraph No. 3 of the lease.
(4) The question of whether or not the appellants had complied with the drilling-obligations in the lease constituted a mixed question of fact and law; especially so, as between them and the appellee, and those issues — in so far as they embodied inquiries of fact — should have been submitted to a jury for its findings thereon.
(5) The evidence further raised questions of fact over whether or not the ap-pellee itself had caused the appellants not to drill further wells upon the 3,600 acres; or, at least, whether it had hindered and delayed their doing so, by its testified to interference with appellants’ efforts during the several years preceding the belated declaration by the appellee of forfeiture for the first time, by its two pleadings filed in the cause as late as December 10, of 1946, and January 7, of 1947, respectively.
(6) Paragraph 3 of the lease, when attempted to be applied between the parties hereto under the changed conditions that had ensued between them, since they themselves became lessors and lessee, as to the 805.9 acres of the land that had originally been so sublet as between them, was not clear and unambiguous in its expression as to what was meant by due diligence in the development of the land; hence, the trial court should have heard and considered evidence as to what was meant by the term “due diligence”, as between such lessors and lessee in circumstances like those that had so developed here; that is, after the ap-pellee had become the grantee from the Davis heirs as to the title to the land still remaining under lease to the appellants, in order that the mutual obligations of each with reference thereto might be determined at the time of this trial.
(7) The trial court erred in holding that, regardless of whether or not there was under the facts existing any reasonable possibility of oil being found thereon, and without inquiring into the facts relating thereto, that the appellants were bound to the ap-pellee to continuously drill wells on the 3,600 acres, in any event.
Under these conclusions, the motion for rehearing should be granted, and the cause reversed and remanded.
Motion for rehearing refused.