dissenting: I respectfully dissent. The instrument of conveyance controls the rights of the parties. The instrument in issue provides for a primary term of ten years on the 480-acre tract with a secondary term so long thereafter as oil, gas, or other minerals are produced from the tract. Production on any part of *384the tract perpetuates the deed on the whole 480 acres. This is the mineral estate created by the owner-grantor. All purchasers of fractional interests from the original sale of minerals acquired their interest under the grantor’s arrangement.
Hydrocarbons may be produced from a common reservoir in many ways. The traditional method is for each owner to drill a well into the reservoir and produce his own acreage, using offset wells to protect his interests. This method is inefficient and often wasteful. The most efficient and equitable method of producing a reservoir is by either voluntary or mandatory pooling and unitizing. Under this method, a scientific calculation is made to determine what number and spacing of wells will most efficiently drain the pool. The proceeds from such production is then divided proportionately among the owners.
Off-premises production attributed to certain real estate is nevertheless production of that real estate’s share of the supply and is just as valid as when the well is on the premises. The granting instrument here provides that production of minerals prevents the deed from terminating. There was production on these premises during the primary term of the mineral deed. The deed was not divisible. It should not be divided by this court.
The majority is affirming the mistake we made in Classen v. Federal Land Bank of Wichita, 228 Kan. 426, 617 P.2d 1255 (1980). By these opinions, we allow property to be taken from owners without just compensation.
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