The people's voice. [volume] (Helena, Mont.) 1939-1969, 1953-04-03


said:
"The duration of the lease de-
ponds upon the terms of the con-
tract. The habendum clause usual
ly provides that the lease shall re-
main in force for (a) fixed term
of years, or (b) a fixed term of
years and an indefinite term there
after to continue so long as oil and
gas is found in paying quantities.
The first mentioned form vests in
the lessee determinable fee :. ;"
See also Dabney-J ohnson Oil Co.
VS.. Walden, Cal. cd 637, 81 Pac.
(2d) 237; Dabney-J ohnson Oil Co..
VS.. Edwards, --- Cal. ----------, So
Pac. cd 962, 1O3 A. L. R. 822
Bruner VS.. Hicks, 23O Ill. $50, 80 N.
E. 8S8.
A term of years must have def
mite beginning and a definite end.
In the case of Stoltze Land Co. VS..
Westberg, 63 Mont. SO, 206 Pac. 407,
it was said:
ION the theory of tenancy for
years, we must observe that one
of the cardinal principles in the
creation of tenancy for years is
that the term must be certain -
there must be certainty as to the
commencement and the duration
of the term. However, that certain
ty may be fixed by reference to
the happening of some collateral
event capable in itself of certainty
at the time of the execution of
the lease, for that is certain which |
can be made certain, but that can
not be said of the purported lease
here involved. so long as you con-
tinue to use it for sawmill pur-
poses leaves the duration of the
term in impenetrable obscurity and
uncertainty. That is where the
parties left it; and that is where
we must leave it. Hence it does not
create a tenancy for years. (Reed
V. Lewis, IA Ind. 433, 80 Am. Rep.
SO; Reeves V. Thompson, IA Ont.
Rep. 499; Gilmore V. Hamilton, 83
Ind. 1876; Western Transp. Co. V.
Lansing, 40 N. Y. 499; Melhop V.
Meinhart, 70 Iowa, 685, % N. w.
545; Murray V. Cherrington, SO
Mrss. 229; Idalia Realty Co. V.
Norman, 232 No. 663, "a L. R. A.
In. So 1869, 1875 S. w. AT; IN
derhill on Landlord and Tenant,
260; Tiffany on Landlord and Ten
ant, so, 81; 16 R C. L. $685."
emphasis supplied)
See also Francis VS.. Superior Oil
o., 102 Fed. CD 1872.
Therefore, the provisions of Sen
on 81-17O2, supra, if amended in
e manner provided for in Chapter
p, Session Laws of 1853, would
cate in the lessee not a term of
ears but a determinable fee con-
airy to the provisions of the Enabl-
g Act and our Constitution.
1t is therefore my opinion that the
nendments to Sections 81-1702, Sec
IN 2, and 81-1708, supra, are in
Of the Enabling Act
ID our Constitution.
1t is the rule in American juris-
ctions that an unconstitutional sta
tie has no more effect than if it
d never been enacted and it has no
feet on a prior valid statute which
seeks to modify or repeal. &c. M.
. P. & P. R. R. VS.. Harmon, 80
ont. 1, 295 Pac 1852; Vennekolt
Lutey, 96 Mont. 72, % Pac. (2d)
p. Under this rule those provisions
Chapter 1872, Session Laws of
SO, which seek to extend the pc
I'd for which state oil and gas leas-
may be let have no effect upon
e present Montana statutes relat-
: to the granting of leases and no
ange may be made in the form of
2 Montana lease to conform to these
quirements of Chapter 1872, SEES
m Laws of 1861 \
1t is therefore my opinion that
ose portions of Chapter 1872, Ses- II
N Laws of 1853 which seek to eX-
nd the period for which state oil I
d gas leases may be let are in vio-
ion of the Constitution and Enabl-
3 Act of the State of Montana and
such are ineffective for every pur-
Sc and do not change our present
ttuteS upon the form of and man