dissenting:
The complaint was filed on January 14, 1980. Service by publication upon the defendants, as nonresidents who claim as heirs of the initial lessee, John Jefferson, was begun January 19, 1980. The clerk of court certifies that he mailed copies of such notice to the Jeffersons at stated addresses on January 28, 1980.
The defendant, Ryan, who claims as assignee of the heirs of John Jefferson procured such assignment on March 20,1980.
Jefferson became a lessee of decedent Shaw on February 19, 1959. On May 4, 1964, Cowan became an assignee of Jefferson as to the land at issue. Cowan died in December 1967. Jefferson died in April 1973.
Despite the innumerable assignments made by Cowan to many persons, defendants allege a reversionary interest passing through the Jefferson heirs who assert that there were oral covenants to develop the assigned lease, so that an interest reverted to Jefferson when Cowan and his assignees failed to develop the leasehold. Nothing in the records suggests that any such claim was asserted in any way by the Jeffersons against Cowan from his death in 1967 until March 20, 1980, after the filing of this complaint, a span of some 12 years.
Assuming, arguendo, that the majority opinion is correct in holding that a development of a portion of the lease is sufficient to bar cancellation of the lease, the reversionary interest alleged to be in Jefferson and Ryan is either bound by the same rule of indivisibility so that the so-called reversion in Jefferson and Ryan cannot operate in their favor while there is production on a remote parcel, or there is, in fact, a failure by the assignees of the working interest to develop oil and gas by reasonable efforts so that the lease should be deemed abandoned and the judgment in favor of the decedent affirmed.
So far as the affidavits filed show, 36V2 barrels of oil have been produced since February 1959, on all of the land originally leased to Jefferson. As to the 120 acres at issue, no attempt has been made to drill in some 21 years. From August 1967 until February 1977, no well was drilled on any of the land in the original lease. The majority opinion asserts that the application of the rule of indivisibility maximizes the recovery of oil and gas and permits the conservation of resources. Upon the facts here the magic of the rule achieves farce.
As the trial court pointed out, Jefferson saw fit to divide the working interest by his assignment to Cowan. The latter, in turn, so assigned the interest to so many individuals that it is reasonable to conclude that it would be impossible to effectively develop the interests.
The majority concludes that the result is mandated by the opinion in Dickerson v. Ray (1960), 20 Ill. 2d 107, 169 N.E.2d 341. In that case, separate owners saw fit to join their respective tracts in one lease, and the opinion found that the language of the lease conclusively showed that the several tracts were treated as a single entity by the respective owners. Under such circumstances, it could be fairly said that the owners should not be permitted to claim that the several tracts were separate and distinct with the end to establish a termination of the lease for non-production.
The reason and justice of that rule are not apparent here, for the lessee has divided the working interest in a single parcel by making partial assignments. He has insulated himself from duties under express and implied covenants of the lease as to the assigned interests. The lessee’s assignees, who theoretically have assumed express and implied covenants of the lease, are, in turn, insulated from any obligations by reason of the theory adopted here. The law should not permit such manipulation to the detriment of others.
Our judgment, which here merely reverses, preserves untouched an immeasurable uncertainty upon the rights as to the 120 acres which began in 1964 in the assignment of Jefferson, and which presumably will continue to exist without a foreseeable end.
It is an egregious fault to apply the doctrine of the indivisibility of the lease to support the gross manipulation by the lessee and the assigns of the lessee. I would affirm the trial court.