(dissenting).
The taxpayer seeks to equate the useful life of its pipeline easements with the estimated duration of the gas supply of its proven reserves held in the tax years involved. The majority accept such an identity of limitation for allowing the taxpayer to recover its costs of these rights-of-way.
I should have no difficulty in agreeing, if the taxpayer’s proven reserves for those years actually were determinative of the useful life of the easements in its business. Indeed, to avoid dissenting, I would go along with the result here, if the record suggested even a possibility that such a relationship as to limitation might at some time during such period perhaps come to exist.1
*142The fact is, however, that the record affords no basis for either of these premises. To the contrary, the history and operations of the taxpayer, I think, disprove the reality of any such specific or immediate relationship as has been recognized, whether the limitation is predicated on the proven reserves held during the tax years involved or on those which have been held at any other time since the corporation commenced to do business 30 years ago.
During the 30 years that the taxpayer has been operating, it has regularly taken on additional proven reserves in the area served by the easements involved, in order to keep the limitation figure for exhaustion of its ready gas supply as an enduring constant each year in its business; it has admittedly never had any difficulty in so doing; and it has not pointed out anything which could prevent it from thus operating, or which indicates a lack of intent on its part to continue doing so, into the indefinite future. .
The effect of this is that the taxpayer (as well as other gas companies generally) has maintained as a practical constant, in terms of its present and projected needs, and not as an operational limitation, the supply of gas with which it conducts its business. The extent of proven reserves carried by it during the tax years involved, or during any of the other years it has existed, has so far primarily had the significance or equivalence in its operations of mere gas inventory. They do not, up to the present time at least, within the history of the taxpayer or the gas industry generally, provide any realistic basis for regarding the useful life of the taxpayer’s easements as being limited, or being in any way measurable, by the period of duration of such particular proven reserves as the taxpayer has had.
The artificiality and unreality taxwise of the situation here seems to me to lie in the fact that, at the end of each tax year that is involved, and at the end of all the six years for which deductions are being sought, the period of useful life for the easements would still as long and valuably remain to the taxpayer for purposes of the proven reserves which it is shown by that time to have added to its inventory, as there had existed for such reserves as were being exhausted during the tax year’s in question.
More incongruously stated, if the taxpayer had in 1930 begun to charge off the easements which it then had, in relation to the proven reserves which it held, it would before now have fully recovered their cost, notwithstanding that such easements today have, and at all times have had, equally as much useful life in relation to the taxpayer’s successive and present proven reserves as they had in relation to those of 1930.
Tax deduction must rest upon some fair basis of economic or legal reality. There is, of course, the abstract reality in the situation that the taxpayer’s continuing use of proven reserves, and that of other gas companies, is resulting in some exhaustion of the general supply of gas in the area as to which the easements involved have their primary value. But it is to be noted that the amount and period of deduction here claimed and recognized do not bear any immediate relationship to the question of when the general supply of gas available from such reserves as may hereafter be proven will become exhausted. Nor does the record, it seems to me, properly reach to that question.
There is indication of the extent of the proven reserves which exist in the industry, but this is economically an artificial figure, in that it represents only such sources of supply as have been developed for the purpose of making them part of the operational inventories of the gas companies generally. New sources of gas supply have continuously *143been found to be available, as further proven reserves have been desired. Thus the taxpayer here holds, in the area involved, for future use, a large amount of what it regards as gas property, which it has never had need or occasion to establish as proven reserves.
Had the evidence in the record provided any competent estimate on a scientific basis of the probable amount of natural gas supply existing in both proven and unproven reserves and the probable length of time in which this would projectively be consumed, the taxpayer would, I think, have been entitled to a tax deduction on this long-range basis. This to me would present a situation comparable to that in Union Electric Co. v. Commissioner, 8 Cir., 177 F.2d 269.
It seems to me that the taxpayer has failed to establish any such period of exhaustion for its easements as is entitled to be accepted as a basis for tax recovery. A statement from Mertens, made in relation to the exhaustion of contracts, summarizes also in general my view of the present situation: “In the absence of * * * a definite and determinable duration, allowance for exhaustion will be denied even though it is apparent that the contract is becoming less valuable and exhaustion is in fact occurring. Some yardstick is necessary.” Mertens, Law of Federal Income Taxation § 23.65. And the yardstick must be one that has at least some economic reality. Once the distance is reasonably capable of sound estimation, it is, of course, not necessary for the taxpayer to establish the exact amount of depreciation sustained each year through the measurable period. Id., § 23.30.
Without regard to some of the things which have been set forth in the trial court’s opinion, I think it was entitled to deny the taxpayer here a recovery.
I have engaged in this expression of views, because I think that this is a test case in the gas industry generally and not simply one that relates to the immediate taxpayer’s situation.
. That period, on the taxpayer’s theory and evidence, is such as to provide it with a depreciation allowance on a 3% percent basis — and I should suspect, from the statements made in the trial *142court’s opinion, 174 F.Supp. 176, that this is the figure and result to which the court would feel itself driven, on a remand of the case to it.