The opinion
*655 On Rehearing.
On rehearing it is argued by defendant in error that the opinion erroneously fails to recognize that an oil and gas lease in Osage county is not an “ordinary oil and gas lease.”
The oil and gas lease under consideration is a regular departmental lease executed by the Chief of the Osage Tribe of Indians, as lessor, under and in pursuance of section 3, of the Act approved June 28, 1906 (34 Stat. L. 539-543), the Act approved March 3, 1921 ( 41 Stat. 1249 ), the Act of March 2, 1929 (45 Stat. L. 1478), and the Act approved June 24, 1938 (52 Stat. L. 1034), and contains the following provision:
“During operations the lessee shall pay all damages for the use of the surface, other than that included in the location and tanksite, all damages to growing crops, or any improvements on the lands and all other damages as may be occasioned by reason of operations.”
Defendant in error argues that the judgment should be affirmed because of the damages proven and by reason of the wording above referred to.
This court has determined on several occasions that the applicable Act of Congress and the regulations of the Secretary of the Interior have no application to a claim arising for damages to cattle occasioned by cattle drinking polluted oil and salt water from wells in Osage county under a lease containing the provisions as are embodied in the present oil and gas lease. Indian Territory Illuminating Oil Co. v. Carter, 177 Okla. 1 , 57 P. 2d 864 ; Indian Territory Illuminating Oil Co. v. Graham, 174 Okla. 438 , 50 P. 2d 720 ; Devonian Oil Co. v. Smith, 124 Okla. 71 , 254 P. 14 ; Galt-Brown Co. et al. v. Lay, 183 Okla. 87 , 80 P. 2d 567 .
Our previous holdings are to the effect that the provision under discussion applies to damages to the surface only (including crop damages) and has no application to damages to livestock.