(dissenting).
I dissent.
The statute (Sec. 65-1-18, U.C.A.1953 as amended) prohibits the defendants from issuing more than one lease for the same purpose on the same land but does permit them to issue a second lease for other minerals.
The lease issued to the plaintiffs specifically excluded coal and oil shale. The plaintiffs therefore cannot develop oil shale but in a “dog in the manger” attitude brought this proceeding to restrain the defendants from issuing a lease to others for the purpose of developing the oil shale on the land.
In the earlier case of Morgan v. Utah Board of State Lands, 21 Utah 2d 364, 445 P.2d 776 (1968), this court determined that oil recoverable from bituminous sand was the same as that pumped from a natural reservoir of oil. It is only necessary to apply heat, pressure or certain detergents through bored holes in the ground to be able to make the oil in bituminous sands flow to the surface of the land.
Such is not the case with oil shale, for oil cannot be made to flow froni the shale. It is necessary to mine the shale, and when it is brought to the surface of the ground, there is no oil in it. There is a substance in it called Kerogen from which petroleum hydrocarbons can be derived by the application of heat and subsequent refining. This is shale oil and not petroleum. It is a black waxy oil which freezes at room temperature. See the article by Felix Jaffee in Mineral Industries Bulle*348tin, Vol. 5, No. 2, March, 1962, published by Colorado School of Mines.
The prior Morgan case is of no assistance in deciding this matter.
The Federal Government recognized the difference between oil shale and oil in State of Utah, et al., 71 I.D. 392 (1964). There the Interior Department specifically authorized the disposition of land containing oil shale but reserved the oil and gas to the United States. At pages 403 and 404 it was said:
It would appear to follow that, if the base land is mineral land and the selected land is both valuable for oil shale and valuable for oil or gas and is situated within the known geologic structure of a producing oil or gas field or included in a producing or producible oil and gas lease, the State may obtain the selected land, including the oil shale deposits upon consenting to a reservation to the United States under the 1914 act of the oil and gas in the selected land. We so conclude.
There can be no conflict between a lessee who mines oil shale and a lessee who produces oil though holes drilled in the ground. Neither one would, by its operation, interfere in any manner with that of the other; and neither one by its operation could possibly take any property from the other to which it would be entitled under its lease.
I, therefore, would reverse the trial court and remand the case with an order to dissolve the injunction and to dismiss the complaint.
CROCKETT, J., concurs in the dissenting opinion of ELLETT, J.