CREWS OIL COMPANY, an Oklahoma corporation, Appellant, v. The SUPERIOR OIL COMPANY, a California corporation, Ambassador Oil Corporation, a Delaware corporation, Apache Corporation, a Delaware corporation, Appellees

PER CURIAM.

This is an appeal from a summary judgment on stipulated facts, wherein the trial Court refused to cancel part of an oil and gas lease, which appellant contends expired, for nondevelopment during its primary term. The appellant seeks to factually distinguish this case from Panhandle Eastern Pipe Line Company v. Isaacson, 10 Cir., 255 F.2d 669; Whitaker v. Texaco, Inc., 10 Cir., 283 F.2d 169; Cox v. Gulf Oil Corporation, 10 Cir., 301 F.2d 122; and Clovis v. Pacific Northwest Pipeline Corporation, 140 Colo. 552, 345 P.2d 729. But, we think this case is indistinguishably similar, and the judgment is Affirmed, on authority of those cases.

MURRAH, Chief Judge

(concurring specially).

I agree that this case is indistinguishably similar to the cited cases. In view of the compulsory spacing and drilling unitization, there is nothing in the unexercised pooling option of the lease, which would justify a different result in this case. The failure of the lessee to exercise its pooling option, in no way affects the rule of the cited cases, i. e., that the entire lease is extended beyond its primary term, by production from a well within a prescribed drilling unit, which includes a portion (however small) of the lease.

The judgment must be affirmed, on authority of those cases, but I cannot consent to affirmance of the case without reaffirming my views expressed in Whitaker.