Elsey v. Wagner ( 1946 )

On Rehearing.

ARNOLD, J.

(concurring specially). In view of the argument made on rehearing I think it should be pointed out that as between Mrs. Friend and Elsey the Elsey lease is valid though it has been finally adjudged inferior to the Shaw lease. Both leases executed by Mrs. Friend contemplated and guaranteed immediate right to drill. This right cannot be exercised by Elsey during the life of his lease so long as Shaw’s superior right exists. Elsey also had the right to postpone drilling and thereby preserve the right to drill, by paying delay rentals. If he could not drill as contemplated by reason of the superior right of Shaw created by Mrs. Friend, then she would be estopped to cancel for failure to pay rentals provided for the postponement and preservation of that which did not exist in the face of the superior right of Shaw.

Obviously, therefore, the fact that Elsey procured an invalid acknowledgment would make no difference. Elsey did Friend no injury. He owed no duty to Mrs. Friend to put Shaw in an inferior position contrary to that intended and guaranteed to him by her.