The plaintiff in error, who hereinafter will be referred to either as the plaintiff or as the oil company, commenced this action against the defendant in error, who hereinafter will be referred to either as the defendant or as the gas company, for the purpose of obtaining a decree adjudging the oil company to be entitled to all of the drip gasoline theretofore and thereafter caught in a gasoline drip installed in the operation of what is known as the Martin Well No. 2. The value of the product to April, 1926, was said to be $78,185.68.
Under date of August 4, 1916, the owners of certain real estate granted, demised, leased, and let the same to the Marland Oil Company for the sole and only purpose of mining and operating for oil and gas, and laying pipe lines, and building tanks, power-stations and structures thereon, to produce, save, and take care of said products for a term of five years and as long thereafter as oil or gas or either of them is produced from said land by the lessee. In consideration of the premises, the lessee covenanted and agreed:
"First. To deliver to the credit of lessor, free of cost, in the pipe line to which he may connect his wells, the equal one-eighth part of all oil produced and saved from the leased premises.
"Second. To pay the lessor $300 each year in advance, for the gas from each well where gas only is found, while the same is being used off the premises, and lessor to have gas free of cost from any such well for all stoves and all inside lights in the principal dwelling houses on said land during the same time by making his own connections with the wells at his own risk and expense.
"Third. To pay lessor for gas produced from any oil well and used off the premises at the rate of $50 per year, for the time during which such gas shall be used, said payments to be made each three months in advance."
It was therein provided that if no well be commenced on the land on or before the 4th day of August, 1917, the lease should terminate as to both parties, unless the lessee on or before that date should pay or tender to the lessor, or to the lessor's credit in the bank therein named, or its successors, the sum of $80, which amount was intended to operate as a rental and covered the privilege of deferring the commencement of a well for twelve months from said date, and it was further provided therein that in like manner and upon like payments or tenders the commencement of a well might be further deferred for like periods of the same number of months successively. That oil and gas lease remained in force during all of the time hereinafter mentioned. All of the rights which the Marland Oil Company acquired by virtue of that oil and gas mining lease were assigned to the oil company, the plaintiff herein, under date of September 21, 1916. On the 29th day of November, 1920, the oil company and the gas company entered into a contract which, with the acknowledgment and signatures omitted, was in words and figures as follows, to wit:
"Contract. "This Agreement, entered into this 29th day of November, 1920, by and between the Cosden Oil Gas Company, hereinafter called the 'Oil Company,' and the Blackwell Oil Gas Company, hereinafter called the 'Gas Company.'
"Witnesseth: That, whereas, on the 4th day of August, 1916, Roy W. Martin, Ola E. Martin, and Nelson P. Martin executed to the Marland Oil Company one certain oil and gas mining lease covering the (Description of real estate omitted) which lease is recorded in book 7, at page 207, of the records in the office of the county clerk of Grant county, Okla., and which lease was thereafter by said Marland Oil Company assigned to the Cosden Oil Gas Company, herein styled the 'Oil Company':
"Now, therefore, for and in consideration of the money hereinafter stipulated to be paid and the matters and things stipulated and covenanted to be done and performed by the gas company, the oil company hereby assigns and conveys unto the said gas company all of its gas rights (but no oil rights except as hereinafter provided) in, under and pertaining to the above-described leased property.
"In consideration of the foregoing assignment, the gas company agrees to immediately put material upon the ground for a well in the northwest corner of said tract offsetting the present producing well on adjoining property, and to commence drilling said well within four (4) weeks from this date. The gas company agrees to promptly offset each and every other gas well or wells which may be drilled at any time in the future on any tract adjoining the tract hereby assigned and to fully and completely protect said tract from drainage of the gas therefrom by any such offset wells. *Page 37
"It is further agreed that if in drilling any well for gas the gas company shall reach a sand showing oil, then, before drilling into such sand, the gas company shall immediately notify the oil company in writing of such fact, in order that the oil company may have its representative on the ground while the sand is being drilled, and shall defer the drilling into such sand until the oil company's representative is present; but in no event shall the gas company be required to delay such drilling in such case more than two days. In case such oil sand is encountered, the gas company may, after complying with the aforementioned requirements, drill through such sand if it desire to test deeper sand for gas, but shall in such case fully protect the sand so drilled through in full compliance with the laws of Oklahoma and the rules and regulations of the Corporation Commission of Oklahoma. If the gas company shall encounter oil sand as hereinbefore mentioned and shall not desire to drill through the same for a deeper test, then if it be not a flowing well, the gas company shall put said well to pumping; and if it shall produce twenty-five (25) barrels of oil or more per day for thirty (30) consecutive days, the oil company shall take over said oil well, paying said gas company the cost of said well. Whereupon all material in said well and the oil theretofore produced therefrom shall become the property of the oil company. If, however, during the aforementioned test, said well shall produce less than twenty-five (25) barrels per day, then the oil company may, at its option, take over said well at cost as above provided; and in case it shall not exercise its option to do so within sixty (60) days after receiving written notice from the gas company that it has such oil well, such well shall then become the property of the gas company, which latter company may proceed to produce and sell oil therefrom for its own account, operating said well and accounting for royalties upon the oil produced as provided in said lease; or, at its option, may abandon said well.
"It is further agreed that if in drilling any well for oil on the above-mentioned leased tract, the oil company shall encounter a sand producing gas, it shall immediately notify the gas company in writing of such fact, so that the gas company may have a representative present to test the volume of the gas, and said gas company shall have two days after such notice within which to have its representative present before drilling through such sand. Thereupon the oil company shall have the right, if it so desire, to drill such well through such sand and to a deeper sand to test for oil, but in such event the oil company shall be required to protect such gas sand in full compliance with the laws of the state of Oklahoma. If, however, upon encountering such gas sand the oil company shall not desire to drill the well through such sand to test deeper sands for oil, then, if the well shall have a capacity of two million (2,000,000) cubic feet per day, or over, from said sand, the gas company shall take over said well paying therefor to the oil company the entire cost of such well. If the initial volume of gas produced from said gas sand shall be less than two million (2,000,000) cubic feet per day, then the gas company may, at its option, take over such gas well paying to the oil company the entire cost thereof, but in case the gas company shall not exercise such option within fifteen (15) days from the receipt of written notice from the oil company of the striking of such sand, then the oil company shall have the right to either retain said well and sell gas therefrom, or to abandon the same, as it may elect. If the oil company shall not abandon said well but shall keep the same as a gas well, the gas company agrees to buy from the oil company, at the price below provided, the maximum amount of gas permitted to be sold from said well under the laws of Oklahoma, so long as the gas company shall have a gas line within one-half (1/2) mile from such well.
"The gas company agrees to pay from time to time to royalty owners all payments due as royalty on account of the gas produced from said lease; and further agrees to commence taking gas from said lease within ninety (90) days after the completion of the first well by the gas company upon said leased tract. The gas company further agrees to set a meter upon said leased property through which all gas taken shall be measured, and to pay to the oil company at the rate of seven (7) cents per thousand cubic feet for one-eighth (1/8) of the volume of gas taken by it from said leased premises. under this assignment, the said seven cents per thousand cubic feet being the market price now paid by the Oklahoma National Gas Company for gas purchased from the field in which this tract is located. It is further understood and agreed by and between the parties hereto that should the market price paid by the Oklahoma National Gas Company for gas in this field be increased or decreased from the present rate of seven cents per thousand cubic feet, then the amount to be paid by the gas company to the oil company for one-eighth of the volume of gas so taken shall be increased or decreased accordingly.
"The gas company agrees to make a statement to the oil company not later than the 10th of each month, showing the amount of gas taken from said leased premises during the previous month, and to make payment therefor to the oil company according to the provisions of this contract not later than the 20th of the month succeeding that in which the gas is taken.
"In case any question should arise between the parties hereto as to the correctness of the meter readings on such gas, it is agreed that the oil company may secure the services of a meter man of recognized qualifications *Page 38 to take such readings, and if in the opinion of such meter man such readings are incorrect, the same shall be corrected according to the findings of such meter man, and payments for gas shall be made therefor according to the corrected and adjusted meter readings.
"This asignment and contract shall continue in force as long as gas shall be produced in paying quantities from said leased tract by the gas company, but in no, event shall said lease be considered as not producing gas in paying quantities so long as it shall produce sufficient gas to enable the gas company, under the laws of Oklahoma and the rules and regulations of the Corporation Commission of the state of Oklahoma, to take therefrom not less than 500,000 cubic feet of gas per day; said gas company, however, having the right to continue taking gas therefrom under this contract so long as it shall be enabled to produce gas therefrom in any quantity."
Thereafter the gas company, acting under its contract with the oil company, drilled two wells on the premises. The first well, after being operated for sometime by the gas company as a gas well, was drilled to a greater depth and became an oil well. It is not in issue in this case. The second well was completed by the gas company on April 21, 1923. It produced a large amount of natural gas of a heavy rock pressure. The gas company installed at or near the mouth of the well what is called a "pinch gate," which consisted of a valve in the gas line by which it was able to reduce the pressure of the gas in the pipe line below what it was in the casing in the well. The gas company installed a meter on its line at a distance of about 125 or 150 feet from the well. The gas company installed between the meter and the pinch gate what is known as a "drip". The change in the pressure and temperature caused by the installation and operation of the pinch gate caused a portion of the gasoline coming from the well in the form of a gas to liquify and the drip operated to collect the gasoline so liquified and to retain it in its liquid form. The gas company from time to time drew the liquid gasoline from the drip. It amounted to several hundred gallons per day, being about one-half of a gallon of gasoline to each one thousand cubic feet of gas. The drip was maintained until about June 13, 1925, when the gas company moved its meter to a point between the drip and pinch gate, where it remained until November 14, 1925, when it was removed and the entire product then passed through the meter until sometime during the progress of the trial, when the defendant reinstalled the drip between the pinch gate and the meter. The record shows that the installation of a drip is customary for the purpose of removing from gas any fluid carried with the gas, to prevent the fluid from passing into and through the meter and into the gas lines beyond it.
The gas company paid the oil company for the volume of one-eighth of the gas as measured by the meter. It did not pay the oil company anything for the gasoline which it acquired and it refused to do so.
The question for our determination is: Who is entitled to the gasoline taken by the gas company from the drip? In order to determine the question, we must look to the contract between the gas company and the oil company and ascertain from it the answer to the question. In doing so, we must interpret the contract in accordance with the rules adopted by the Legislature. Under the provisions of section 5039. C. O. S. 1921, a contract must be so interpreted as to give effect to the mutual intention of the parties, as it existed at the time of contracting, so far as the same is ascertainable and lawful. Subject to that provision, the contract being in writing, the Intention of the parties must be ascertained from the writing alone, if possible (section 5042, C. O. S. 1921), and the language of the contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity. Section 5041, C. O. S. 1921. The whole of the contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the others (section 5044, C. O. S. 1921), and the contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties. Section 5046, C. O. S. 1921. However broad may be the terms of the contract, it must be held to extend only to those things concerning which it appears that the parties intended to contract. Section 5051, C. O. S. 1921. It is the duty of the court to construe contracts as written and not to enlarge upon the contract or to make a new contract for the parties regarding matters upon which their minds have not met. Phillips v. Henderson Gasoline Co., 101 Okla. 277,225 P. 668. The intention of the parties must be deduced from the entire agreement, not from any part or parts of it, and, where a contract has several stipulations, the intention of the contracting parties is not expressed by any single clause or stipulation, but by every part and provision in it, which must all be considered together, and so construed as to be consistent with every other part. Hammett Oil Co. v. Gypsy Oil Co., 95 Okla. 235, 218 P. 501. *Page 39
The contract must be examined under those rules to determine whether it is an assignment and conveyance by the oil company to the gas company of all of the gas rights of the oil company under the oil and gas lease, as contended by the gas company, or a contract for the development and operation of the property and a sale of the gas passing through the meter, as contended by the oil company That question must first be determined, for if the contract is an assignment and conveyance of an interest in the oil and gas lease, the rights and liabilities of the parties are materially different from what they are if it was a contract for the development and operation of the property and a sale of the gas passing through the meter. If it was the first, the right of the oil company to the gas ceased at the time of the execution and delivery of the contract and thereafter the oil company was entitled only to receive the consideration agreed to be paid at the time and in the amount and manner therein specified. If it was the latter, the rights of the oil company in the gas did not cease until the gas passed through the meter.
That the words "assigns and conveys" were used in the contract does not make the instrument an assignment and conveyance. Such is the effect of the many decisions of this court construing instruments to be mortgages of real estate which, by their terms, grant, bargain, sell and convey real estate. Such was the holding in Phillips v. Henderson Gasoline Co., supra, wherein the language used was "bargain, grant and sell;" in Smith v. Pulaski Oil Co., 88 Okla. 47, 211 P. 1047, in which the language used was "sell, transfer and convey," and in other decisions of this court.
We are not concerned with the names and the terms used. If we were, we would look to the title of the instrument, which we would find to be "Contract."
When we look at the contract within its four corners, we find that the oil company did not assign and convey to the gas company all of its gas rights under the oil and gas lease. It retained the right to drill wells on the premises, and though it encountered a sand producing gas, it retained the right, if it so desired to drill the well through that sand to a deeper sand to test for oil. While it agreed that if it did not desire to drill the well through such a sand to test deeper sands for oil, the gas company might take over the well by paying to the oil company the entire cost of such a well, the gas company was not required to do so unless the production of gas was two million cubic feet per day, or over, it being left optional with the gas company whether it should take over a gas well with a production of less than two million cubic feet per day. It was provided that in case the gas company should not exercise its option to take over a gas well within 15 days from receipt of a written notice from the oil company of the striking of such gas sand, the oil company should have the right either to retain the well as a gas well and to sell gas therefrom, or to abandon the same, as it might elect. It should not be contended that the gas company would own the gas from that well, for it would belong to the oil company after the gas company had failed to exercise its option to take over the well from the oil company. In the event that the oil company did not elect to abandon such a well and elected to keep the same as a gas well, the gas company agreed to buy from the oil company the maximum amount of gas permitted to be sold from said well under the laws of Oklahoma, so long as the gas company had a gas line within one-half mile of the well. Attention is called to that fact for the reason that, under the terms of the contract, the gas company agreed to pay to the oil company for gas taken by the gas company from a gas well belonging to the oil company the same amount per thousand cubic feet of gas taken that it agreed to pay to the oil company for the gas taken by the gas company from the gas well in question. We know of no reason why the gas company would agree to pay the oil company the same amount per thousand cubic feet for gas from a well that belonged to the gas company that it agreed to pay the oil company for gas from a well belonging to the oil company. In this connection we call attention to the fact that there is but one provision in the contract as to the method to be used in the taking of gas by the gas company from the premises and that that provision applies to the taking of gas from a gas well belonging to the oil company as well as to the taking of gas from the well in question. That provision is that the gas company will set a meter upon the leased premises through which all gas taken shall be measured.
If there is any question as to whether or not all of the gas rights of the oil company were assigned and conveyed to the gas company, it is answered by the last paragraph of the contract, in which it was provided that the contract shall continue in force as long as gas shall be produced in paying quantities from the leased tract by the gas company. The termination of the contract does not terminate the oil and gas mining lease. It is the property of the oil company by assignment from the lessee. After *Page 40 the termination of the contract the oil company may thereafter produce gas from the leased premises under the provisions of the lease. If the gas company, by reason of the contract, is the owner of all of the gas rights under the lease, how does the oil company again acquire them? The answer is obvious. The instrument in question is a contract for the development and operation of the property and a sale of the gas passing through the meter. It is not an assignment and conveyance of all of the gas rights of the oil company under the oil and gas lease.
The gas company contends that the agreement to install a meter and to measure the gas taken by it through that meter was for the purpose of providing a method for determining the amount of money to be paid by the gas company to the oil company, and that the amount of money so paid was not only for the gas taken after it had passed through the meter, but for everything that came from the well whether or not it passed through the meter.
In Phillips v. Henderson Gasoline Co., supra, notwithstanding the provision of the contract involved therein by which the parties of the first part therein did thereby "bargain, grant and sell unto the party of the second part all of the casing-head gas produced from oil wells" located on the premises involved therein, this court held than "* * * the contract of the parties did not extend to drip gasoline that collected in the line and had to be withdrawn before the same reached the meter," and in support of its holding said:
"Under this state of facts, we think the court, first, misconstrued the contract in holding that under the contract the parties contemplated a sale of all the casinghead gas, whether in vaporous or in liquid form. There is nothing in the contract to even infer that the parties intended to purchase casinghead gasoline in liquid form, but, to the contrary, they were purchasing what was delivered through the meter in vaporous form. The court attempted to make a contract between the plaintiff and defendant regarding the drip gasoline and fix the manner of measuring the same and how it should be paid for by the defendant. In this the court committed error. The court should have construed the contract just as it is written, the defendant buying all the casing head gas as it was delivered through the meter. This is what defendant was paying for, and this is what it was to receive. It is the duty of the court to construe the contract as written, and not to attempt to make a new contract for the parties"
— and:
"The first portion of the contract recites that defendant is purchasing all of the casinghead gas of the plaintiffs, and that plaintiff should install certain machinery or equipment, which in the instant case was certain gas lines, vacuum pumps, scrubbers and drips, and the gas then delivered to the gas line of the defendant. The contract then provides that it is mutually agreed that the amount of casinghead gas to be paid for shall be determined by connecting meters to intake lines of second party running to gas pumps of said first party. By construing these provisions together, what was the intent of the parties? The language and intent as derived from the contract was:
"First. That plaintiffs were desirous of selling their cashighead gas and the defendant was desirous of purchasing the same.
"Second. It was contemplated that the casinghead gas should be gathered or taken from the well and pass through certain gas lines and apparatus, then into the line of detendant, where a meter was to be installed. The amount of casinghead gas passing through the meter was to be paid for at so much per thousand cubic feet. It is clear that plaintiffs were selling what passed through the meter, and the defendant was buying and paying for what passed through the meter. It also is clear that the parties contemplated that the gas should be generated from the wells in the usual and customary manner, and run through the apparatus or machinery that is usually and customarily installed in accordance with the custom in vogue in the oil fields. It would follow that all leakage, shrinkage, or waste removed from the gas in passing from the wells to the meter would be borne by the plaintiffs: all leakage, shrinkage, or waste after passing through the meter should be borne by the defendant. It would also follow that if there was value to the waste products that was necessary to be removed from the gas between the wells and meter, the same would belong to the plaintiffs, as it does not pass through the meter and is not measured by the meter, nor does the contract contain any provision regarding this waste product. If the parties made no contract regarding the waste product, then by construing the contract in accordance with section 5051, Comp. Stat. 1921, the contract would not extend to this subject-matter."
The contract in question shows that the oil company, the owner of the lease, desired to arrange for the production and disposition of the gas from the leased premises and that the gas company desired to procure the same. Gas was the object of the contract. It was the thing about which the parties intended to contract. It was the thing about which they did contract. They provided that all of the gas taken from the premises should be passed through a meter and that payment was to be made to the *Page 41 oil company for the gas that passed through the meter. It is apparent that the parties contemplated that the gas should be taken in the usual and customary manner and through apparatus and machinery customarily installed for that purpose. The gas company contends that Phillips v. Henderson Gasoline Co., supra, is not in point, for the reason that in that case the well belonged to the seller, while, as it contends, in this case, the well in question belongs to the gas company, and that the difference in the ownership of the well requires a different rule to be applied. We are bound by the provisions of the contract in question. It provides an identical method for the taking and an identical rate of payment for gas taken by the gas company from a gas well owned by the oil company as it provides for gas taken by the gas company from the well in question. The rule stated in Phillips v. Henderson Gasoline Co., supra, would be applicable if gas was taken by the gas company from a gas well owned by the oil company. We are thereby confronted with the question of whether the parties intended a different rule to be applicable to gas taken by the gas company from a gas well owned by the oil company from what they intended to be applicable to gas taken by the gas company from the well in question. The parties did not provide a different rule. They agreed that the same rule would be applicable to each, and that the gas taken by the gas company from a gas well owned by the oil company should be handled in the same manner and paid for at the same rate as the gas taken by the gas company from the well in question. We think that the rule stated in Phillips v. Henderson Gasoline Co., supra, is applicable to the gas taken by the gas company from the well in question.
The contract involved in Smith v. Pulaski Oil Co., supra, provided that the first parties "* * * do hereby sell, transfer, and convey all of the gas now being produced, or that may be hereafter produced on said premises, to said second parties, * * *" and this court, notwithstanding that provision, held:
"Where the lessee in an oil and gas lease and another person enter into a contract in writing, by the terms of which all gas then being produced or that may thereafter be produced from a certain tract of land is by the lessee sold to such person, and which contract provides that whenever a well is drilled in and gas produced therefrom, such person at his option may elect to take the gas so produced from said well by furnishing the necessary casing, pipe, and bradenhead, to be placed in the well by the lessee to preserve and protect said gas, held, that the lessee was not obliged to use any other methods or means of segregating or separating the gas from the oil than those provided for in the contract; held, further, that if casinghead gas could not be separated from the oil and delivered to such person in the manner provided for in the contract, it was not within the contemplation of the parties when the contract was made, and such person was not entitled thereto."
Therein this court said:
"If casinghead gas could not be separated from the oil and delivered to the plaintiffs in the manner provided for in the contract, then it must not have been such gas as was in contemplation of the parties when the contract was made."
That rule is applicable herein, and since the gasoline could not be delivered to the gas company in the manner provided for in the contract, that is, through the meter, we must hold in conformity with that decision that the gasoline was not such gas as was within the contemplation of the parties when the contract was made. When we look to the contract to determine the kind of gas covered by the provisions thereof, we may also look to the oil and gas lease by which the gas rights covered by the contract are defined. When we do so we find that the provision of the lease, with reference to gas from each well where gas only is found, provides that the lessor is "to have gas free of cost from any such well for all stoves and all inside lights in the principal dwelling house on said land. * * *" It cannot be said that the parties to the lease intended that the lessor was to have gas impregnated with readily condensable gasoline to the amount of one-half gallon to each one thousand cubic feet. The parties thereto evidently understood that the readily condensable gasoline in appreciable quantities was to be taken from the gas. Such was the evident intent of the contract in question. There is no provision in the contract by which it can be said that the gasoline was assigned or conveyed by the oil company to the gas company. Since it was not assigned and conveyed by the oil company to the gas company, it remained the property of the oil company, for, as held in George v. Curtain, 108 Okla. 281, 236 P. 876, all rights claimed under a contract, which are not conferred in direct terms, or by fair implication, are to be considered withheld. In that case this court said:
"It is the duty of the courts to construe contracts as written, and not to enlarge upon the contract and make new contracts for the parties regarding matter upon which their minds have not met."
Therein was involved casinghead gas. In the body of the opinion the court said: *Page 42
"It will be observed that the parties contracted specifically regarding oil wells and gas wells and the contract is silent as to the disposition of gas produced from an oil well, and, therefore, a different rule obtains to the rule laid down by this court in the case of Mussellem v. Magnolia Petroleum Co.,107 Okla. 183, 231 P. 526, and followed by this court in the case of Pautler v. Franchot, 108 Okla. 130, 235 P. 209. In those cases the lease contracts specifically fixed the right of the parties where gas was used from an oil well, but where the lease contract in the case at bar was made prior to the time when casinghead gasoline was known to be of commercial value, and no mention made of the casinghead gas to be taken from the oil wells, we are forced to the conclusion that that subject was not within the contemplation of the parties when the lease contract was entered into, and is, therefore, not covered or controlled by said lease contract. Smith v. Pulaski,88 Okla. 47, 211 P. 1047; Mullendore v. Minnehoma Oil Company, decided by this court Nov. 12, 1924."
That rule is applicable herein, for herein the parties contracted specifically regarding gas and the contract is silent as to gasoline. It will be noted that this court, in that case, distinguished it from the rule stated in Mussellem v. Magnolia Petroleum Co., 107 Okla. 183, 231 P. 526, and followed in Pautler v. Franchot, 108 Okla. 130, 235, P. 209. In the Mussellem Case appears the statement that dry natural gas is defined as "natural gas which does not contain an appreciable amount of readily condensable gasoline." The gas in question in this case contained an appreciable amount of readily condensable gasoline. It amounted to several hundred gallons; per day, aggregating 720, 640 gallons in amount and $78,185.68 in value to the date of computation, and being about one-half gallon of gasoline to each one thousand cubic feet of gas. The amount was caused, in part, as stated by the trial court, by "the richness" of the gas "in gasoline content." It was readily condensable, for it condensed at the first opportunity in a simple appliance installed for the purpose of removing waste, without the use of machinery, appliances and equipment commonly used for the manufacture of gasoline from casinghead gas or dry gas. In the Mussellem Case it was pointed out that the contract therein involved dealt with oil produced and saved, gas produced and saved from a gas well, and gas produced and saved from an oil well. Herein is involved a fourth element — gasoline coming from a gas well. Gasoline coming from a gas well is not referred to in the contract. There is a material difference between gasoline manufactured from gas by the use of machinery, appliances, and equipment constructed for that purpose, and gasoline which comes from a well in a gaseous form in appreciable quantities and which is readily condensable without the use of machinery, appliances, and equipment intended for the manufacture of gasoline from gas.
In the language of this court in Phillips v. Henderson Gasoline Co., supra, it is clear that the oil company was selling what passed through the meter; that the gas company was buying and paying for what passed through the meter, and that the product removed from the drip did not belong to the gas company, but to the oil company. Under the authorities cited, it was the duty of the oil company to settle with the landowner for the gasoline produced and saved from the leased premises in accordance with the terms of the oil and gas lease. See, also, Mullendore v. Minnehoma Oil Co., 114 Okla. 251, 246 P. 837; Gilbreth v. State Oil Corp., 4 F.2d 232, and Wilson v. King Smith Refining Co., 119 Okla. 256, 250 P. 90.
The judgment of the trial court is reversed and the cause is remanded to that court, with directions to enter judgment in favor of the oil company in conformity herewith.
CLARK, V. C. J., and HEFNER, CULLISON, SWINDALL, and KORNEGAY, JJ., concur. LESTER, C. J., absent. RILEY and McNEILL, JJ., dissent.