(dissenting in part).
I think the court is wrong in failing to consider the additional cost of drilling a second well on the 40-aere tract as an element of the loss caused to the plaintiff Potts by the flooding of the land. The taking here involved occurred about March 15, 1945.- At that time Petroleum Administrator for War Order No. M-68 was in effect, which limited the drilling of wells in geological structures such as those here present, to 40-acre spacing. The order was a war measure, based on a critical shortage of materials used in drilling and equipping wells. No one expected the order to remain in effect permanently. The owner of the lease, or one who contemplated purchasing the lease, would expect that, when the shortage of materials had disappeared, normal spacing would be resumed. It was in fact resumed on March 7, 1946, when the Corporation Commission of Oklahoma issued a 20-acre spacing order.
At the time of the taking, the owner of the lease, or one who was considering the purchase of it, would not be thinking only of what he could do with the land that day, or that year. He would be thinking of the normal development of the land, in which a second well might not be drilled for years, if ever, after the first one. What a willing buyer would give a willing seller for an oil lease, at the time and place, would be affected hardly at all by a temporary restriction upon the number of wells which could be drilled.