On Motion for Rehearing
Counsel for appellants has submitted to us a most vigorous motion for rehearing which we have examined and studied to the extent of our capabilities, but which we have concluded must be overruled.
However, we do believe that the importance of the principles involved and the novelty of the questions presented warrant recognition at this time because of the near certainty of litigation to come involving situations like unto that in the instant case.
Our attention has been called to an excellent analysis of the field within which our scope of inquiry largely falls. It is entitled “The Habendum Clause as a Special Limitation on Oil and Gas Leases in Texas”, by Ivan Irwin, Jr., found in Volume XI, Number 3 (Summer, 1957) Southwestern Law Journal. At page 344 the author states the question: “Over what period of time is the production to he measured in determining whether production has been in paying quantities?” He states that (as of the date of publication) the problem has not been resolved by the courts. We have based our own conclusions and our holding upon an evaluation of what we believe Judge Alexander necessarily held in the case of Garcia v. King, 1942, 139 Tex. 578, 164 S.W.2d 509. We agree with Mr. Irwin, however, that the question has not been resolved heretofore, and is not to the present time, even assuming the verity and soundness of our foregoing opinion.
The motion for rehearing is overruled.
Appellants have conditionally submitted a motion to certify in the event motion for rehearing is overruled. Although we have overruled the motion for rehearing, we are not disposed in this instance to grant their motion. The motion to certify is overruled.