dissenting.
When Robert 0. McKone entered into a transaction with Melvin Guertzgen and Claudia Guertzgen to sell a business lot in Thermopolis, Wyoming on May 9, 1981, none of them expected that abandoned underground petroleum product storage tanks would come back to haunt both the seller and the buyers. Events change rapidly in this society in which we live and society came back to them to look with disdain, suspicion and active antagonism upon the abandoned underground petroleum product storage tanks.
The buyers bought the property “as is, where is.” 1 Unfortunately, in acceptance of an invalid legend of the advantages of the escrow deed arrangement for an installment contract of sale (probably to avoid classical foreclosure upon default), the parties were faced with events occurring since sale which have severely impacted the property’s value — abandoned underground petroleum product storage tanks.2
The buyers paid promptly and properly on the installment contract for about eight years until notice by the fire marshall of current law changes and regulations regarding abandoned underground petroleum product storage tanks. State and federal laws were enacted and state and federal administrative agencies were empowered. Hundreds of thousands of old filling station site abandoned underground petroleum product storage tanks became a heavy problem which not only surfaced, but explosively mushroomed. See the most recent text of the Water Pollution from Underground Storage Tanks Corrective Action Act of 1990, Wyo.Sess. Laws ch. 98 (1990), W.S. 35-11-1414 through 35-11-1428 (Cum.Supp.1990). See also the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C., § 9611 (1988) and the Resource Conservation and Recovery Act of 1976, 42 U.S.C., § 6901 (1988). See, generally, the Wyoming Environmental Quality Act, W.S. 35-11-101 through 35-11-403, 35-11-405, 35-11-406, 35-11-408 through 35-11-1104 and 35-11-1414 through 35-11-1428 (Cum. Supp.1990).
We are now faced in this appeal with society’s imposition of an expensive cost upon the landowner and are asked who is to pay — the seller or the buyers? I would really like to believe that some part of the responsibility should be placed upon whoever advised these parties to use the installment sale technique instead of a note and mortgage, but those other parties are not here before us. We have a seller, buyers and an imposed cost by the government.
This majority now assesses responsibility on the seller within an incomplete record which does not accurately advise when the filling station usage was discontinued or necessarily who owned the property at that time.
1. That prior to May 9, 1981, the underground storage tanks had been decommissioned by a prior Contract for Deed person, not the * * * Plaintiffs or *732the Defendant, and have not been in use since that time.
I dissent in disinclination to continue the fiction of ownership derived from the antiquated differentiation between a note and mortgage security interest and the installment sale contract as another real estate purchase price security device. I would just abandon the artificiality of the fiction, no matter how long matured in legal dialogue.3
Except for the frequently misunderstood criteria for foreclosure upon payment default, only remanents of archaic and outdated concepts of law survive to distinguish the ownership of land held subject to note and mortgage or by escrow deed and installment contract. Olds v. Little Horse Creek Cattle Co., 22 Wyo. 336, 140 P. 1004 (1914) served a different purpose in historical Wyoming law and I would not now expand that ease to create a continued fiction to provide a difference in actual rights of ownership where, in practical fact, none actually continue.
It is appreciated that this majority supports its conclusion by accurate and longstanding legal concepts. My difference is that we should now abandon those fictions derived from times long past and economic relationships long gone. For current review with legislative change, see Kershen, Contracts for Deed in Oklahoma: Obsolete, But Not Forgotten, 15 Okla. City U.L.Rev. 715 (1990).
For this case, I would hold that the buyers, by their agreement, bought problems of future governmental action with land purchased in specific accord with the “as is, where is” provisions of the written agreement. I would reverse the district court’s judgment in impression upon the seller of the obligation to succor the buyers from governmental required tank removal. Further, I would determine that the unknown and unforeseen go with the risk of purchase and do not remain with the equity of retained sale price obligation. The owner of the premises should be the possessor with rights to the property, not the holder of a security device for purchase payment.
Additionally, I have a problem fitting in the abandoned tank removal issue with the injunction requested in complaint and the tank removal declaratory judgment granted in disposition. I do not know where the parties will go from here since the litigation started with a request for an injunction to forestall foreclosure upon non-payment of installment payments. Perhaps by now someone has removed the tanks, no leakage has previously occurred and a dollar amount can be determined. If not, I lack assurance what will happen next or even if the state contribution for tank removal pursuant to W.S. 35-11-1424 (Cum. Supp. 1990) is a possibility. It certainly is a possibility that the tanks have leaked and that the clean up costs could substantially exceed the value of the real estate and certainly exceed the amount remaining payable on the purchase price security instrument.
Unless society would contribute, I would leave the problem with the present property owners, and consequently dissent to this majority’s decision to the contrary.
. Meaning in real estate trade terms a characterization of the agreement that the identified property and improvements were sold without warranty of fitness or quality except as done here and provided normally to warrant title. The only actual warranty provided here by seller in sales documents was for title which was covered by a mandatory examination and objection abstract review process. “Buyer shall advise Seller of any defects in title within [two weeks]* * The provision of the agreement placed total responsibility upon buyer for maintenance of the real property and improvements, remodeling and reconstruction, with payments to include all taxes levied and assessed against the real property after the year of sale. The term “as is” means the property is sold without warranty and "where is” defines the identity and possible problems. This property was a known closed filling station. Wolford v. Freeman, 150 Neb. 537, 35 N.W.2d 98 (1948); Montague v. Bank for Savings in City of New York, 181 Misc. 863, 43 N.Y.S.2d 321 (1943). See also an affirmative use of an “as is” clause in the Uniform Commercial Code, W.S. 34.1-2-316(c)(i).
. Knowledgeable attorneys experienced in real estate and a few experienced realtors should know that a deed and mortgage is a preferable land sale security device, with exception in . some very limited circumstances, but almost never as an exception if the payment is long term. See Nelson and Whitman, The Installment Land Contract — A National Viewpoint, 1977 B.Y.U.L.Rev. 541 (1977).
. See the discussion of archaic and inappropriate feudalistic principles of real estate law discussed in Simpson v. Kistler Inv. Co., 713 P.2d 751 (Wyo. 1986).