It is conceded that no demand was made upon Cox, the lessee, that he develop the premises and that no notice of intention to forfeit in the event of lessee's failure to comply with such a demand was served upon him. Oklahoma has uniformly adhered to the general rule that a demand by the lessor that the implied covenant to develop be complied with and that a reasonable time be given to comply with such demand are conditions precedent to the right to institute and maintain an action for cancellation in a court of equity. Neither Indian Territory Illuminatig Oil Company v. Haynes Drilling Company, 180 Okla. 419, 69 P.2d 624, nor Doss Oil Royalty Company v. Texas Company, 192 Okla. 359, 137 P.2d 934, is to the contrary. In the Indian Territory Illuminating Oil Company case, the lessor of a ten-acre lease demanded protection of the premises by the drilling of a line well.

The duty imposed by the implied covenants of a lease to diligently develop the lease and to drill offset wells to protect the lease from drainage is to do that which an operator of ordinary prudence, having a regard for the interests of both lessor and lessee, would do. Ramsey Petroleum Corporation v. Davis, 184 Okla. 155, 85 P.2d 427, 429; Pelham Petroleum Co. v. North, 78 Okla. 39, 188 P. 1069, 1072; Donaldson v. Josey Oil Co., 106 Okla. 11, 232 P. 821, 823; Broswood Oil Gas Co. v. Mary Oil Gas Co., 164 Okla. 200, 23 P.2d 387, 389; Indian Territory Illuminating Oil Co. v. Haynes Drilling Co., 180 Okla. 419, 69 P.2d 624, 626; Denker v. Mid-Continent Petroleum Co., 10 Cir., 56 F.2d 725, 727, 84 A.L.R. 756; Brewster v. Lanyon Zinc Co., 8 Cir., 140 F. 801, 814. Neither the lessor nor the lessee is the arbiter of the extent to which, or the diligence with which the exploration and development shall proceed.

In order to comply with the implied covenants of a lease to drill offset wells and to diligently develop the lease, a lessee must do that which, under the circumstances, an operator of ordinary prudence, having regard to the interests of both lessor and lessee, would do. Ramsey Petroleum Corporation v. Davis, supra; Pelham Petroleum Co. v. North, 78 Okla. 39, 188 P. 1069, 1071, 1072; Mercer v. American Oil Refg. Co., 173 Okla. 515, 49 P.2d 101, 102; Indian Territory Illuminating Oil Co. v. Haynes Drilling Co., 180 Okla. 419, 69 P.2d 624, 626; Denker v. Mid-Continent Petroleum Corp., 10 Cir., 56 F.2d 725, 727, 84 A.L.R. 756; Orr v. Comar Oil Co., 10 Cir., 46 F.2d 59, 63. In Ramsey Petroleum Corporation v. Davis, Okla.Sup., 85 P.2d 427, decided Dec. 20, 1938, the court said:

he implied covenant applied by the authorities. Billeaud Planters Inc. v. Union Oil Co. of California, 144 F. Supp. 464; Blair v. Clear Creek Oil Gas Co., 148 Ark. 301, 230 S.W. 286, 19 A.L.R. 430; Blake v. The Texas Co., 123 F. Supp. 73; Broswood Oil Gas Co. v. Mary Oil Gas Co., 164 Okla. 200, 23 P.2d 387; Carper v. United Fuel Co., 78 W. Va. 433, 89 S.E. 12, L.R.A. 1917A 171; Carter Oil Co. v. Dees, 340 Ill. App. 449, 92 N.E.2d 519; Carson v. Ozark Natural Gas Co., 191 Ark. 167, 83 S.W.2d 833; Cooper v. Ohio Oil Co., 25 F. Supp. 304; Culbertson v. Iola Portland Cement Co., 87 Kan. 529, 125 P. 81; Deep Rock Oil Corp. v. Bilby, 199 Okla. 430, 186 P.2d 823; Fontenot v. Austral Oil Exploration Co. Inc., 168 F. Supp. 36; Geary v. Adams Oil Gas Co., 31 F. Supp. 830; Gerson v. Anderson Prichard Production Co., 149 F.2d 444; Hartman Ranch Co. v. Associated Oil Co., 10 Cal.2d 232, 73 P.2d 1163; Humphreys Oil Co. v. Tatum, 26 F.2d 882; Hutchins v. Humble Oil Refining Co., 161 S.W.2d 571; Indian Territory Illuminating Oil Co. v. Haynes Drilling Co., 180 Okla. 419, 69 P.2d 624; Kleppner v. Lemmon, 197 Pa. 430, 47 A. 353; Lafitte Co. v. United Fuel Oil Co., 177 F. Supp. 52; Millette v. Phillips Petroleum Co., 209 Miss. 687, 48 So.2d 344; Myers v. Shell Petroleum Corp., 153 Kan. 287, 110 P.2d 810; North American Petroleum Co. v. Knight, 321 P.2d 964; Poindexter v. Lion Oil Refining Co., 205 Ark. 978, 167 S.W.2d 492; Ramsey v. Carter Oil Co., 74 F. Supp. 481; Renner v. Monsanto Chemical Co., 187 Kan. 158, 354 P.2d 326; R.R. Bush Oil Co. v. Beverly-Lincoln Land Co., 69 Cal.App.2d 246, 158 P.2d 754; Sunray-Midcontinent Oil Co. v. McDaniel, 361 P.2d 683; Tidewater Associated Oil Co. v. Stott, 159 F.2d 174; York v. Trigg, 87 Okla. 214, 209 P. 417; Thornton, Oil and Gas, Sec. 101. III. Public policy dictates adherence to the standard of prudence and diligence in the application of the implied covenant to protect from drainage.

APPELLANT IN REPLY. I. Cited and discussed the following authorities: Indian Territory Illuminating Oil Co. v. Haynes Drilling Co., 180 Okla. 419, 69 P.2d 624; Millette v. Phillips Petroleum Co., 209 Miss. 687, 48 So.2d 346; Ohio Fuel Supply Co. v. Shilling, 101 Ohio St. 106, 127 N.E. 873; Roberts v. United Carbon Co., 78 F.2d 39. ON CROSS-APPEAL.

The reasonableness of the demand and time for compliance is a question of fact to be determined from the circumstances of each case. Lyons v. Robson, 1958 OK 232, 330 P.2d 593, 596. Demand may be excused when it "would be a vain and useless thing." Indian Territory Illuminating Oil Co. v. Haynes Drilling Co., 180 Okla. 419, 69 P.2d 624, 630 (1937). See also James Energy Co. v. HCG Energy Corp., 1992 OK 117, 847 P.2d 333, 339, and Hitt v. Henderson, 112 Okla. 194, 240 P. 745, 748 (1925).

This case is summarized by our Supreme Court and cited with approval on this point in Hartman Ranch Co. v. Associated Oil Co., supra (p. 240). See, also, Carper v. United Fuel Gas Co. (1916), 78 W. Va. 433, 439 [89 S.E. 12, L.R.A. 1917A 171], and Indian Ter. I. Oil Co. v. Haynes Drilling Co. (1937), 180 Okla. 419 [ 69 P.2d 624, 636]. From these authorities we conclude there is an implied obligation on the part of an oil and gas lessee to refrain from taking any affirmative course of action which will result in draining a substantial quantity of the oil and gas from the lessor's property and producing the same through the lessee's well on adjacent premises belonging to a different lessor.

Oklahoma has held that an action for lease forfeiture for failure to develop cannot be maintained in the absence of notice that forfeiture will result from failure to develop. Indian Territory Illuminating Oil Co. v. Haynes Drilling Co., 180 Okl. 419, 69 P.2d 624, 630. The opinion also says that: "There are, however, circumstances under which the giving of notice would be a vain and useless thing and such notice is not necessary."

This is also the established rule in the Oklahoma courts. Broswood Oil Gas Co. v. Mary Oil Gas Co., 164 Okla. 200, 23 P.2d 387; Indian Territory Illuminating Oil Co. v. Haynes Drilling Co., 180 Okla. 419, 69 P.2d 624; Ramsey Petroleum Corp. v. Davis, 184 Okla. 155, 85 P.2d 427. We have quoted at length from our opinion in the Gerson case because it clearly sets forth the principle by which the questions presented must be decided, and because, in the interest of brevity, we shall not cite the numerous other cases which have dealt with this problem.

The standard by which both are bound is what an experienced operator of ordinary prudence should do in the circumstances, bearing in mind that the purpose of the contract is the mutual benefit of the lessor and the lessee. Fox Petroleum Co. v. Booker, 123 Okla. 276, 253 P. 33; Broswood Oil Gas Co. v. Mary Oil Gas Co., 164 Okla. 200, 23 P.2d 387; Indian Territory Illuminating Oil Co. v. Haynes Drilling Co., 180 Okla. 419, 69 P.2d 624, certiorari denied, 302 U.S. 736, 58 S. Ct. 143, 82 L.Ed. 569; Ramsey Petroleum Corporation v. Davis, 184 Okla. 155, 85 P.2d 427; Indian Territory Illuminating Oil Co. v. Rosamond, 190 Okla. 46, 120 P.2d 349, 138 A.L.R. 246; Brewster v. Lanyon Zinc Co., 8 Cir., 140 F. 801; Carter Oil Co. v. Mitchell, 10 Cir., 100 F.2d 945. But the lessee does not bear an implied obligation to drill an offset well to prevent drainage unless, taking into consideration all existing facts and circumstances, it would probably produce oil in sufficient quantity to repay the whole sum required to be expended, including the cost of drilling, equipping, and operating the well, and also pay a reasonable profit on the entire outlay.