Dissenting Opinion by
Mr. Chief Justice Jones:The relief which this court grants the plaintiffs rests upon the theory that the defendant company by *110drilling for and producing gas on the plaintiffs’ land has unjustly enriched itself to the plaintiffs’ great pecuniary hurt. Just how the doctrine of unjust enrichment has any applicability to the undisputed facts of this case is not apparent to me.
The majority opinion correctly apprehends the law of unjust enrichment to be as follows: “It is clear that the doctrine of unjust enrichment does not deal with situations in which the party to be charged has by word or deed legally consented to assume a duty toward the party seeking to charge him. Instead, it applies only to situations where there is no legal contract.” With that statement, there can be no disagreement.
But, in the present instance, the defendant company, at the time it drilled on the property involved and found gas therein in paying quantities, had a lawful right so to do under an oil and gas lease from the executors of the will of William Wingert, deceased. This lease, which was a matter of record, had been executed and delivered six years before the plaintiffs purchased the property from the estate of William Wingert, deceased; and the defendant company has at all times made or tendered to the lessors the sums for which it was obligated by the terms of the lease. That the executors of William Wingert had the power to execute the lease in question is not open to reasonable dispute. The testator’s will so empowered his personal representatives. In fact, the current lease which the executors made to the defendant (T. W. Phillips Gas & Oil Company) was, in effect, a renewal of a lease of similar terms which William Wingert, in his lifetime, had given to T. W. Phillips, Jr., for a term of 20 years and as long thereafter as oil and gas was found in paying quantities. No drilling having taken place under that lease within the 20-year term, which was about to expire, and William Wingert having died, the executors *111gave the defendant the renewal which is still extant and the lease here involved. The plaintiffs were without right to repudiate or abrogate this lease and their attempt so to do was legally futile. The still subsisting lease, therefore, constitutes the contract which renders inapplicable the rule of unjust enrichment.
The equity in the plaintiffs for a more justly proportionate distribution of the proceeds from the gas produced by the defendant company on their property does not warrant making a nullity of a long enduring written contract which is not impugned by any suggestion of over-reaching on the part of the defendant company. If there was to be a more equitable sharing of the returns from the gas produced by the defendant on plaintiffs’ property, that was peculiarly a matter for renegotiation between the parties bound by the lease and cannot rightly be accomplished by our disregarding the lease.
I would affirm the decree of the court below.
Mr. Justice Bell joins in this dissent.