I do not concur in the opinion rendered in this case. The parties will be referred to as they appeared in the trial court. On August 4, 1916, Roy W. Martin et al. leased to the Marland Oil Company the north half of the southwest quarter of section 23, township 27, range 3, west I. M. in Grant county. The lease was on the ordinary 88 form. On August 4, 1916, the Marland Oil Company assigned all of its rights under this lease to the Cosden Oil Company, and thereafter, on November 20, 1920, the Cosden Oil Company assigned all of its gas rights in said land to the Blackwell Oil Gas Company. This contract of assignment contained the following:
"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 here-by 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 lease property."
The assignment has other provisions, but in my opinion, it amounts to a straight assignment *Page 43 of the gas rights under the original lease to the Blackwell Oil Gas Company in praesenti. The Cosden oil Company afterwards changed its name to the Mid-continent Petroleum Corporation, the plaintiff in the case.
This action involves drip gasoline manufactured or distilled from natural gas from a dry gas well by the Blackwell Oil Gas Company, the defendant. The assignment contained the following provision:
"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 the 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 Natural 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."
The gasoline involved in this action was manufactured through drips in the passing of the gas between the mouth of the well No. 2 located on the leased premises, and the only question involved is whether this gasoline belonged to the defendant. The trial court made certain findings of fact, among which were the following:
"The defendant contends, and the plaintiff admits in his brief, and the court, therefore, finds, and does find from the evidence, that when this gasoline comes from the well it is a part of the volume of gas coming from the well, that is, that the whole production as it comes from the month of the well is in the form of gas.
"The defendant has paid the landowners the $300 per annum provided in the lease, and the contract as the royalty on this well in question, and has complied with all other provisions of the contract unless it can be said that it has wrongfully taken the drip gasoline in question."
One of the trial court's conclusions of law, upon which its judgment was based, is as follows:
"That the contract in question in this case does not constitute a barter and sale of the gas, at the meter, so as to exclude from the transfer some part of the gas that cannot or should not pass through the meter. But, on the other hand, the court concludes that the contract in question was an assignment and conveyance to the defendant of all the gas rights, in, under and pertaining to the leased property, at the time of the execution of the contract on November 29, 1920."
The Cosden Oil Company, in its assignment, assigned "all of its gas rights" to the Blackwell Oil Gas Company, and the only question presented here is whether the drip gasoline extracted from the natural gas is embraced within the term "gas rights." The assignment of the Cosden Oil Company to the Blackwell Oil Gas Company transferred to the Blackwell Oil Gas Company all the rights which the Cosden Oil Company had under the lease to mine gas. It is plain from the assignment which included an operating agreement that it was the intention of the parties that the Blackwell Oil Gas Company was to have "all gas rights," and that it has on its part performed all the obligations assumed by it in the contract. Looking at the contract as a whole, we conclude that as between the plaintiff and defendant drip gasoline, which was extracted from gas coming from a gas well, belonged to the defendant.
The gas rights under the lease and the assignment belong to the defendant. The oil rights belong to the plaintiff. As between the Mid-Continent Petroleum Corporation and the defendant, the defendant must prevail unless the drip gasoline is embraced within the oil rights granted in the lease. Casinghead gas is gas coming over the casinghead out of an oil well.
In the case of Mullendore v. Minnehoma Oil Co.,114 Okla. 251, 246 P. 837, this court held that, in a lease executed on May 27, 1907, where casinghead gas was not mentioned, the casinghead gas was not conveyed by the terms of the lease as "oil" or "gas," and held that the casinghead gas coming out of the oil well belonged to the fee owner. In that case the court said:
"As set out above, the fee owner reserved to himself by that contract one-eighth of the *Page 44 oil. By this we think that both parties thereto understood that the fee owner was to receive one-eighth of the oil in the common acceptation of that term, as the same was taken from the oil well, through the pipe lines (or its equivalent in money). The other reservation to the fee owner was a sum of money for gas taken from gas wells and used off the premises. The substance in litigation here was not conveyed by the terms of the lease, either as 'oil' or 'gas taken from a gas well.' This volatile substance was, as we think, the property of the fee owner, and a conversion and sale thereof by the lessee or his assignee gave rise to a cause of action as for conversion as of the time and the place the same was sold."
If casinghead gasoline, a by-product of casinghead gas, which as it comes out of an oil well is not oil as contemplated in a lease granting oil rights, certainly drip gasoline, which is a by-product of gas coming out of a gas well, would not be oil as contemplated in an oil and gas mining lease.
In the case of Hammett Oil Co. v. Gypsy Oil Co.,95 Okla. 235, 218 P. 501, the owners of certain lands had executed an oil and gas mining lease in October, 1906. Said lease was transferred to Hammett, who executed a sublease, which provided that there should be paid to Hammett 40 per cent. of all oil produced from said lands as royalty. A certain part of Hammett's interests was transferred to Hammett Oil Company. The Gypsy Oil Company, in 1913, entered into a contract with the lessors, the owners of the fee, regarding the manufacture of gasoline from casinghead gas, and thereafter did manufacture gasoline from casinghead gas. The Hammett Oil Company brought suit against the Gypsy Oil Company for an accounting on this gasoline so manufactured from casinghead gas. In that case the subject-matter of the litigation was the gasoline manufactured from casinghead gas coming out of an oil well. In the instant case the subject-matter of the litigation is gasoline manufactured from gas coming out of a gas well. In the Hammett case, the Gypsy Oil Company installed at the oil well vacuum pumps to increase the flow of the casinghead gas. The sublease, under which the Hammett Oil Company claimed the casinghead gas, made no mention of casinghead gas, nor did the original lease make mention of it. In that case the court held that the right to manufacture gasoline from casinghead gas did not pass under the terms of either the original lease or the sublease. The court said:
"We therefore conclude that the word 'oil' and the right to produce oil did not include the right to manufacture gasoline from casinghead gas, within the contemplation of the parties to the original lease, and the lease did not extend to the use of the premises for this purpose. Nor was there a meeting of the minds of the parties to the original lease regarding this subject. The finding of the trial court in this respect is not clearly against the weight of the evidence. The Plaintiff having based his action upon a contract, which did not extend to the subject which was in controversy, his action must fail."
The court, however, did say:
"We do not intend to say that, if the placing of the vacuum pumps upon the wells to increase the flow of casinghead gas decreased the production of oil, or reduced the gravity of the oil produced, plaintiff would not have a cause of action — whether by injunction or an action for damages, it is unnecessary for us to decide — but the action cannot be founded upon the contract for a portion of a product not embraced in the contract."
In the last mentioned case, the Gypsy Oil Company contended that the casinghead gas was gas and not oil, and that the gasoline was extracted from the gas and not from oil. The court did not expressly find that Casinghead gas is gas, but did find that, in the popular sense, it was not oil, in the following language:
"In our judgment, the question is not whether gasoline manufactured from casinghead gas is oil in a technical sense but whether it is oil in its ordinary and popular sense, and was so understood by the parties to the oil and gas lease, which granted this lessee the right to produce oil or gas, and provided for a royalty of one-eighth of the oil delivered in the pipe line."
In the case of Mussellem v. Magnolia Petroleum Co.,107 Okla. 183, 231 P. 526, supra, the Mussellems, the owners of certain lands, leased them on February 3, 1913, for oil and gas, and the defendant Magnolia Petroleum Company owned the lease. Casinghead gas was not mentioned in the lease, and the defendant took the casinghead gas coming from oil wells on the lease and had manufactured from it casinghead gasoline. With reference to gas coming from an oil well, the lease contained the following covenant:
"Third. To pay the parties of the first part for gas produced from an oil well, and used off the premises, at the rate of $50 per year, for the time during which such gas shall be so used, said payments to be made each three months in advance."
It was held in that case that the casinghead gas did not pass to the lessee under this provision of the lease, but was the property of the landowner, and that gas coming from an oil well and known as *Page 45 casinghead gas was gas as referred to in said third subdivision of said oil and gas lease. It was held that the casinghead gas passed to the lessees under the above provisions of the contract which granted the gas. In that case, the court said:
"The trial court made no holding with reference to gasoline manufactured either from gas, wet or dry, or from petroleum itself. Such question was not there, and is not here. But, as to the interpretation of the third clause of the contract, in the light of the evidence in the record, the scientific definitions and discussions above set out, we fail to find any fault in the holding of the trial court that the lease contract passed the title to that substance which was generally known to come from an oil well and familiarly designated as gas, and the holding was not erroneous in the light of the common acceptation of the terms used, as well as scientific knowledge on the subject."
If gasoline manufactured from casinghead gas coming out of an oil well passes to a lessee under a covenant conveying gas, then it is reasonable to assume that gasoline manufactured from gas coming from a gas well would pass by an assignment conveying the "gas rights," and said Mussellem Case is authority supporting a judgment in favor of the Blackwell Oil Gas Company in the case at bar. If casinghead gas coming out of an oil well is "gas," as mentioned in the Mussellem Case, then certainly gas coming out of a gas well from which drip gasoline is extracted is gas as is mentioned in the lease in the instant case.
In the case of Phillips v. Henderson Co., 101 Okla. 277,225 P. 668, Charles Harter and A.J. Thompson owned an oil and gas mining lease on certain lands in Nowata county. They entered into a contract with Henderson Company to sell that company "all of the casinghead gas produced from oil wells located on the "premises" in question. The contract further provided that the gas should be delivered into the lines of the defendant "at the gas pumps which have been or will be installed by the said parties of the first part," and that the amount of gas to be delivered was to "be determined by connecting a meter of standard make, etc., on the intake line of the Henderson Company." The owners of the lease thereafter sold their lease to W. H. Phillips et al. Phillips et al. installed certain scrubbers and drips on their gas line between the wells and the intake line of the Henderson Company, and extracted or took from the gas a large amount of condensate or drip gasoline and appropriated it to their own use. On two of the tracts, however, this drip gasoline was collected and sold by the Henderson Company. The question involved in the case was as to who owned this condensate or drip gasoline which did not go through the meter. The court held that the machinery installed on certain of the leases was unnecessary in that it extracted an unnecessary amount of gasoline from the casinghead gas, and that this amount of gasoline unnecessarily extracted from the casinghead gas should be accounted for to the owners of the lease, but that all the balance of the drip gasoline belonged to the Henderson Company. The court in construing the lease held that:
"It is clear plaintiffs were selling what passed through the meter, and the defendant was buying and paying for what passed through the meter. * * *
"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 defendant is entitled to have the gas pass from the well to the meter without unnecessary drips, or unnecessary scrubber tanks, that have a tendency to lessen the value of the casinghead gas."
In other words, the court held that the Henderson Company bought all the casinghead gas which could pass through the meter, and nothing more, and that it was entitled to have all the casinghead gas pass through the meter, but that the plaintiff was entitled to the drip gasoline which it became necessary to extract in order that the meter would properly register the casinghead gas, and that on the lease where an excess of drip gasoline was collected by reason of installing unnecessary machinery by the plaintiff, the plaintiff should account to the defendant therefor.
In the Henderson Case, supra, from a consideration of the contract as a whole, the court found that the Henderson Company had purchased the casinghead gas which could be metered and no more, and that the owners of the lease were entitled to extract from the gas such by-products as was necessary in order to make it possible to correctly meter the casinghead gas and no more. In the Henderson Case, supra, the Henderson Company did not own any interest in the oil and gas mining lease, or any part of the mineral rights, except the casinghead gas which went through the meter. In the instant case the Cosden Oil Company had conveyed to the Blackwell Oil Gas Company all the gas rights covered by the oil and gas mining lease, which included the easement to go upon the premises and mine and market the gas including all byproducts of the gas, but reserved the oil *Page 46 rights. From an examination of the entire contract it is apparent that the Blackwell Gas Company was to pay as part consideration for such gas rights, the royalty mentioned in the contract of seven cents per thousand cubic feet for one-eighth of the volume of gas as metered. Although casinghead gas partakes to some extent of the nature of oil, yet, when it comes out of the well, it is gas, and the mining of which from a gas well is a part of "gas rights" mentioned in the contract. One of the findings of the trial court which is supported by the evidence is as follows:
"The court does find that it is the general practice and proper practice, as set forth in finding of fact No. 7, to maintain a drip, and that the parties to this contract contemplated the use of drip at this well if it produced gas, and fixed the considerations in the contract with that factor in view."
In the case of Wilson v. King-Smith Ref. Co., 119 Okla. 256,250 P. 90, this court, in the first paragraph of the syllabus, said:
"In an action for the recovery of royalties on products made from casinghead gas, where the lease sued upon contains a specific provision for royalties on oil products from oil wells, and where the lease provides that if gas is found in any well or wells on the premises the lessor is to have sufficient gas for domestic purposes free of charge, the remainder with all the gas from oil wells to go to the lessee, such latter provision is sufficiently broad to cover all rights which the lessor may have in the casinghead gas coming from oil wells. Following Mussellem v. Magnolia Pet. Co., 107 Okla. 183,231 P. 526, and Pautler v. Franchot, 108 Okla. 130, 235 P. 209."
In the body of the opinion, the court said:
"Whether the parties at the time of the execution of this lease contract in 1912 did or did not anticipate, the production of casinghead gas is, we think, immaterial, in view of the decisions of this court that gas from an oil well constitutes casinghead gas. Mussellem v. Magnolia Pet. Co.,107 Okla. 183, 231 P. 526; Pautler v. Franchot, 108 Okla. 130,235 P. 209.
"In the Mussellem Case, supra, the court said:
" 'From the above citations of the evidence, the definitions, of such gas as here in question, from the departmental regulations and scientific treatises on the subject, "casinghead gas" is nothing other than gas from an oil well, and to concur in the contention made by plaintiffs would be tantamount to writing a modification into the third clause of the contract.'
"The lease in the Mussellem Case contained three clauses wherein the question of royalty was involved. The first referred to the royalty due the lessor in the event of the discovery and production of oil. The second referred to the royalty due the lessor in the event of the discovery and production of gas. The third was as follows:
" 'Third, to pay the parties of the first part for gas produced from an oil well, and used off the premises, at the rate of $50 per year, for the time,' etc.
"The third clause in the Mussellem Case is identical with that in the instant case, except that in the Mussellem Case the lessee contracted to pay the lessor $50 per year for gas from each oil well — that is to say, casinghead gas — whereas, in the instant case, the parties provided that 'all gas from an oil well' should pass to the lessee.
"In the Pautler Case, supra, the plaintiff in error sought reversal of the lower court on a judgment on the pleadings. In the Pautler Case, the third cause, analogous to the 'third obligation' in the Mussellem Case and the third clause in the instant case, was as follows:
" 'Third. To pay lessor for gas produced from any oil well and used off the premises' at the rate of one-eighth revenue at 3¢ Per M for the time during which such gas shall be used. * * *'
"In the above case this court held that the identical questions raised were presented and determined by the court in the Mussellem Case; that the lease provisions in both cases were the same in legal effect.
"It may be observed that the only difference between the Mussellem and Pautler Cases, on the one hand, and the instant case on the other, is that the latter provides that the gas from an oil well, i. e., casinghead gas, goes to the lessee.
"Plaintiffs rely particularly upon two decisions of this court for the purpose of effecting a reversal of the judgment of the trial court, to wit: Hammett Oil Co. v. Gypsy Oil Co.,95 Okla. 235, 218 P. 501; George v. Curtain, 108 Okla. 281,236 P. 876.
"In the Hammett Case, supra, the court, after citing authorities, said:
" 'We think these cases support the position that gasoline manufactured from casinghead gas is neither oil nor gas within the contemplation of an oil and gas lease, which makes no reference to casinghead gas, and nothing appears to indicate that the parties have contracted concerning the same.'
"The proposition simply means that where an oil and gas lease provides merely for a gas royalty and an oil royalty, and since casinghead gas is not gas simply, nor oil simply, in such case there is nothing which refers 'to casinghead gas, and nothing appears to indicate that the parties have contracted concerning the same,' and therefore no contract made which covers such product, since casinghead gas is gas from *Page 47 an oil well. If we had before us an oil and gas lease which provided merely a gas royalty and an oil royalty, instead of a lease which purports to fix the rights of the contracting parties to 'gas from an oil well,' which, under the contract, was given to the lessee, a different question would arise.
"In the George v. Curtain Case, supra, cited by plaintiffs, the court held, in effect, that when an oil and gas lease contract provides merely for royalty on gas, and royalty on oil, the contract cannot be extended to cover that which by their silence the parties have indicated they did not have in contemplation, namely, gas from an oil well, or casinghead gas.
"The case of Phillips v. Henderson Gasoline Co.,101 Okla. 277-279, 225 P. 668, cited by counsel for plaintiffs, lends no support to the contention made. The court said that:
" '* * * 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.'
"But the lease in the instant case contains a clause which specifically fixes the rights of the parties to gas from an oil well — that is to say, casinghead gas."
The only purpose of the meter was to register the volume of gas, in order that the oil company might be paid as a part of its consideration for the assignment, the sum of seven cents per thousand for one-eighth of the volume of gas passing through the meter. It is not disputed that the gas company metered the gas in the usual and proper manner. In this connection it is to be remembered that the Cosden Oil Gas Company stood in the shoes of the original lessee, and by the instrument in question it assigned and conveyed all of its gas rights to the defendant company and had no interest therein except to receive its consideration for this assignment. The operating agreement in no manner subtracted from or lessened the estate created by the assignment. After the assignment the Blackwell Oil Gas Company then became the owner of the gas rights therein assigned, and as a producer under its gas rights, which it had received and paid for under its assignment from the Cosden Oil Gas Company, it was entitled to and did save the gas produced in its natural form as it came from the mouth of the well, or any of its constituent elements, including gasoline.
The only interest the Cosden Oil Company could have in the gas rights was to receive its consideration, and for failure to receive that consideration it would be entitled to damages for a breach of contract.
In the case of Lone Star Gas Co. v. Stine, 41 S.W.2d 48, the court of Commission of Appeals of Texas quotes with approval the case of Wilson v. King-Smith Ref. Co.,119 Okla. 256, 250 P. 90, and held that a deed conveying all natural gas included all substances that came from the well as gas, whether gas was wet or dry, and that the purchaser could take gasoline from the gas without becoming liable for royalties on gasoline to the grantor under operating agreement, which was executed contemporaneously with the deeds conveying all rights, title, interest, ownership, and claim in all natural gas and reserving oil rights, and which provided that in case purchaser of gas elected to save oil from well productive of both oil and gas, he could do so on payment of one-eighth value thereof to owners. It appears that J. H. Stine et al. were the owners of certain land in Clay county, Tex., aggregating 750 acres, and on November 23, 1911, and December 5, 1911, for a cash consideration of $24,738, executed and delivered to the Lone Star Gas Company certain gas deeds conveying to the gas company "all our rights, title and interest, ownership and claim, both present and prospective, in all natural gas in and under the following tract and parcels of land. * * *" These instruments were duly acknowledged, delivered, and recorded, and at the same time said gas deeds were executed and delivered, the parties entered into an operating agreement, and gasoline was thereafter absorbed or extracted from the gas coming from the gas wells. J. H. Stine et al. instituted suit against the gas company for an accounting and for a one-eighth royalty on all the gasoline which had been produced by the gas company.
As to the method used in obtaining the gasoline, the court, in its opinion, says:
"Prior to 1916, this gas was conveyed by the gas company to a compressor near the wells where it was compressed in order to increase the pressure in the mains, and thus facilitate its transportation through the pipe line. The gas was run from the compressor into the pipe line, which conveyed it to where it was sold for fuel purposes. During this time, when the weather was cold, and because of such low temperature and high pressure, gasoline which was a part of the gas, and was in gaseous form when it came from the wells, would sometimes accumulate in the drips along the line in such quantities that it could be taken and used as motor fuel.
"We here quote and adopt the following facts found by the Court of Civil Appeals: 'In the year 1916 the appellee built its absorption plant, and after the completion of that plant the gas from the appellants' land was conveyed from the wells to the compressor station, and from the compressor *Page 48 station to the absorption plant, where it was run through a kind of crude oil. This crude oil absorbed from the gas the gasoline which was carried along with the gas in the form of vapor, and the dry gas, after the gasoline had thus been absorbed from it, went into the main lines of appellee, and was transported to various cities for fuel purposes. One of appellee's witnesses described the process of extracting the gasoline as being a method by which gas was run through a certain kind of oil so that the oil became saturated with the hydrocarbons that go to make gasoline. The testimony is that this gasoline vapor may be converted into gasoline either by the absorption method used by the appellee, or by compression and cooling. That is, that by compression and lowering of temperature, the gas or vapor will be changed from its vaporous form into liquid, and this is the method which is ordinarily used in changing casinghead gas into gasoline.'
"This suit was instituted in the district court of Clay county, Tex., by Stine et al. against the gas company for an accounting and for a one-eighth royalty on all gasoline that was produced by the gas company by the process shown above.
"The case was tried in the district court with a jury, but at the close of the testimony the trial judge directed a verdict for the gas company. The verdict was returned as directed, and judgment rendered accordingly. On appeal by Stine et al., the Court of Civil Appeals reversed the judgment of the district court and rendered judgment for Stine et al.,23 S.W.2d 752. The case is in the Supreme Court on writ of error granted on application of the gas company.
"As we understand the opinion of the Court of Civil Appeals, it holds that as a matter of law the gasoline manufactured from the natural gas which flowed from the gas company's wells was oil within the meaning of the deeds and 'operating agreement,' supra. We think this holding is error. Humble Oil Refining Co. v. Poe (Tex. Com. App.) 29 S.W.2d 1019, 1020; Magnolia Petroleum Co. v. Connellee (Tex. Com. App.) 11 S.W.2d 158.
"A careful reading of the gas deeds and 'operating agreement' clearly discloses that the 'operating agreement' does not and was not intended to in any way subtract from the estate conveyed by the gas deeds, but was intended merely to provide a method by which the owner of the gas estate and the owners of the oil estate could work together and protect the interests of each. We must therefore determine what was conveyed by the gas deeds.
"At this point, we deem it expedient to quote the following from Judge Leddy's opinion in Humble Oil Refining Co. v. Poe. supra.
" 'It is difficult to conceive upon what theory defendant in error was entitled to recover for gasoline which could have been manufactured from gas produced from a gas well, in the face of the provision in the lease that "lessee agrees to pay the lessor at the rate of $250 each year, payable quarterly in advance for the gas from each well where gas only is found, while the same is being used off the premises." * * *
" 'Plaintiff in error acquired the right to use the gas produced from a gas well it might drill on the premises covered by a lease by the payment of the agreed rental of $250 per annum. Having bought and paid for such gas, it owned the same, including all of its constituent elements, and therefore had the lawful right to make such use of it as it might deem proper. Wilson v. King Smith Refining Co., 119 Okla. 256,250 P. 90; Shaw v. Fender, 138 Ga. 48, 74 S.E. 792; McRae v. Smith, 164 Ga. 23, 137 S.E. 390; Magnolia Petroleum Co. v. Connellee, supra.'
"The real questions presented in the Poe Case, supra, and the questions here presented, are in law the same. In the Poe Case, the oil company had a lease, while in the instant case the gas company has a deed to "all natural gas.' In the instant case, the gas company has the right, under its deeds, to 'drill for and develop gas and take the same free from any charges or royalty.' The gas company paid a large consideration running to thousands of dollars for 'all natural gas' in and under these lands An examination of the several instruments clearly discloses that the gas conveyed was not limited to any particular kind or character of gas, but the conveyance is all-embracing as regards gas, and covers and includes 'all natural gas.' The term 'all natural gas' would include all the substances that come from the well as gas, and that regardless of whether such gas be wet or dry. It is undisputed in the evidence that the term 'natural gas' includes numerous elements or component parts, but the very language of the conveyance is such as to include therein all these component parts which were in gaseous form when they came from the wells.
"It is a fact disclosed by this record that gas and gasoline can be manufactured from coal. Could it be successfully contended that if the owner of land should convey all the coal in, on, and under such land, and reserve all oil and gas, that he could claim as gas and oil the gas and gasoline manufactured from the coal? We think not; yet, such claim would be as just and as logical as the one here advanced by Stine et al. Furthermore, suppose Stine et al. had taken their oil and manufactured gas therefrom, Could the gas company have claimed the same under their gas deed? We think to state such a question is to demonstrate the fallacy of the contention here made by Stine et al. In other words, if it is permissible under these gas deeds and 'operating agreement' *Page 49 for Stine et al. to take from the gas company the oil element which formed a constituent gaseous part of the gas as it came from the well, it would be equally as permissible for the gas company to take from Stine et al. the various gaseous elements which form component parts of oil.
"The evidence in this case conclusively shows that the gasoline in controversy here was manufactured from gas which came from the wells as gas. This gasoline was separated from the gas and became liquid only when it was subjected to the manufacturing process shown above. It is true that the gasoline element was in the gas when it came from the well, but it was then in gaseous form, that is, it was an element or component part of the natural gas, and gas or natural gas was the thing conveyed by the deeds. The legal effect of the deed was to convey 'all natural gas,' and by the term 'natural gas', it meant all the constituent elements composing the same. The gas company, having become the owner of 'all natural gas' in or under this land, has the right to make such use thereof as it sees fit. It may sell the gas in its natural form as it came from the earth, or it may split it into its constituent elements and sell such elements, including the gasoline. * * *
"In the instant case, the grant to the gas estate is general and all embracing, and nowhere in the gas deed or in the 'operating agreement' is there any language used that can be construed as making any exceptions to the general grant of 'all natural gas' contained in the gas deeds. Stine et al. conveyed to the gas company 'all natural gas in and under' this land, and further they expressly granted to the gas company the right, 'at all times to enter upon the land, drill for and develop gas and take the same free from charges and royalty.' and they should abide such contract as they made it.
"We recommend that the judgment of the Court of Civil Appeals be reversed, and the judgment of the district court affirmed."
The opinion in the Stine et al. Case was rendered on the 22nd day of July. 1931, subsequent to the time Mr. Justice Riley wrote an opinion in the instant case, and presents a clear announcement of law applicable to the instant case. See, also, the case of Lono Star Gas Co. v. Harris, rendered November 27, 1931, rehearing denied January 15, 1932, 45 S.W.2d 664, wherein the court of Civil Appeals of Texas follows the Stine et al. Case, supra.
The assignment is a contract. It is an agreement whereby all of the gas rights which the Mid-Continent Company ever acquired were assigned to the Blackwell Oil Gas Company. Instead of the gas company in the instant case paying a lump sum to the oil company, for the assignment, as was done in the Stine et al. Case, supra, the consideration was to be paid for the gas taken and measured by a meter in the usual and proper way, at the rate of seven cents per thousand cubic feet for one-eighth of the volume of gas taken from the promises, under the assignment. The oil company, in the irritant case, never saw fit to exercise its option by taking over this gas well for the purpose of treating the same as an oil well, and the oil company in their brief contend:
"Where gas from a gas well is metered, it is proper, usual, and practically universal custom to install a 'drip' between the mouth of the well and the meter to eliminate all fluid, such as water and gasoline, carried along with the gas before same reaches the meter, one of the important purposes being to obtain accurate meter readings."
The constituent gasoline coming from gas or oil, at the time of the assignment was well known to the oil industry. It cannot be questioned that the terms of the instrument in question clearly and positively state that the oil company hereby assigns and conveys unto the gas company all of its gas rights. The instrument also recites: "In consideration of the foregoing assignment. * * *" Again, "The gas company agrees to pay * * * further agrees to set a meter * * * and to pay * * * under this assignment. * * *" Also, in the fourth paragraph of the assignment is the expression: "tract hereby assigned." It is an evasion of the question to say that the oil company did not assign by this instrument all the gas rights which it has acquired under the lease contract.
The majority opinion ignores the plain provision of the contract, which is nothing but a plain assignment of the gas rights in the instant case, with certain other provisions, and states, in substance, that the court should construe the contract as written and not read anything into the same, and then proceed to write a contract for the parties by inserting a provision to the effect that the gas company shall surrender to the oil company a constituent element of the gas which it mined by reason of its assignment and conveyance, and thereby strikes from the contract the clause which assigns and conveys the gas rights to the gas company.
After a careful review of the questions involved herein, it is my judgment that the opinion of Mr. Justice Riley, rendered on the 7th day of July, 1931, and concurred in at the time by a majority of the members of this court, which affirmed the judgment of the trial court, should stand.
On Rehearing.