(dissenting) : A reexamination of this case has confirmed the views expressed in the first opinion. I am unable to see how the rule of damages announced by the court can be applied to afford adequate relief. How many wells should be drilled, and when they should be drilled, will, I believe, result in mere conjecture, even after the most patient judicial inquiry. The plaintiffs had a right to expect an actual demonstration by a reasonably diligent use of the drill. The opinions of witnesses, however confidently given, must necessarily be speculations. ' The evidence shows that wells were drilled around this tract dyring the year before the trial, some of which were dry. Who can say how many wejls to be drilled on this tract will produce gas in marketable quantities? The result of drilling each successive well may change the prospect and consequently vary the obligation of the lessee. If a new well or .wells should diminish the pressure in the. Others, the prospect would be affected unfavorably; if that result should not follow, the prospect might be improved. If the operations should result in several dry wells, the situation would be again changed. In each contingency an estimate of the number reasonably necessary would be varied. If it be suggested that in case the probable result can not be foretold the plaintiffs Have no equity to be preserved, the answer is that in just such cases equity furnishes the only adequate relief. The plaintiffs had sufficient faith in the resources of the land to contract for its development and encumber it with a lease. The defendant had sufficient faith to agree to .make such *372exploration and operate the wells for the benefit of both parties. That there is gas to be utilized is shown by the test well; but the defendant now refuses to go further, and when summoned to answer' for its default stood entirely upon its supposed legal rights, claiming that it was justified under the contract in refusing to operate or pay for the one well or to drill others. The lease provides for its own indefinite extension if gas is found in paying quantities. Such gas has been found. Can the lessee delay work and defer payment indefinitely? It has pursued and is pursuing active operations in drilling gas wells on adjacent leases, with varying success, and other parties are also drilling wells in the same vicinity and marketing gas therefrom. The effect these operations may have upon this lease seems not to affect the views or conduct of the defendant, although the migratory character of oil and gas is well known and has been often referred to in judicial decisions and made the basis of requirements for prompt action.
The right of the plaintiffs to reasonable returns from their property under this lease is disregarded, and no promise is given to proceed. In this situation the remarks of the Pennsylvania supreme court in Munroe v. Armstrong, 96 Pa. St. 307, is pertinent, viz., that the lessee is “bound to operate or quit.” (Page 310.) While the terms of the lease referred to in that case were different from the one now under consideration, in view of the obligation of the parties here, as interpreted by the coui“t, the foregoing language seems applicable. The alternative decree provided for will, I fear, be found difficult to frame or to enforce, and may only serve to perpetuate litigation. It is hoped, however, that it will be the means of administering justice, in case that end is not reached by an award of damages — which seems to the writer improbable.
Mr. Justice Graves concurs in this dissent.