There *Page 50 have been three opinions written in this case by members of the court. The first opinion was by Mr. Justice Hefner, delivered March 3, 1931, in which a majority of the court concurred, and in that opinion the court announced the rule of law applicable to the facts in the case as follows:
"The oil company assigned the gas right of an oil and gas lease to the gas company and the gas company agreed to set a meter upon the lease through which all gas taken should be measured and agreed to pay the oil company at the rate of seven cents per thousand cubie feet for 1/8 of the volume of gas taken by it from the leased premises under the assignment. The meter was installed by the gas company about 125 feet from the well and a 'drip' to catch drip gasoline was installed between the meter and the well. Held, that the oil company was entitled to the drip gasoline that was taken from the gas between the mouth of the well and the meter and that the gas company was entitled to all that was taken from the gas after it passed through the meter."
Later a rehearing was granted, and the opinion withdrawn, and on July 7, 1931, Mr. Justice Riley delivered the opinion of the court, to which four members dissented, the writer of this opinion wrote a dissenting opinion in that case. A petition for rehearing was filed and upon consideration thereof a second rehearing was granted and Mr. Justice Andrews wrote the opinion of the court delivered April 12, 1932. There were some statements in the opinion delivered by Mr. Justice Andrews with which I did not agree. While the question passed upon is not the issue involved, as shown by the pleadings, I felt at the time that it did not materially divert from the position taken by the court in former decisions relative to oil and gas leases of the class stated in the opinion. A petition for re hearing has been filed in the case, in which it is pointed out that the opinion delivered by Mr. Justice Andrews conflicts with cer tain former decisions of this court. After a more careful consideration of the facts in the case, I am of the opinion the deci son is not in harmony with the former holdings of this court.
In this case the class of oil and gas lease is not really involved. It was the contention of the plaintiff in error, plaintiff in the trial court, that the defendant in error, defendant in the trial court, contracted only for the gas that was measured through the meter. Under the issues joined by the pleadings, I am of the opinion this the only question presented to the trial court. The contract provides that:
"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 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."
If the petroleum product involved in this case was gas that could have been metered, it was the duty of the gas company under the contract to measure the same through the meter and pay to the oil company the contract price agreed upon. If it was gas so highly impregnated with oil as to constitute casinghead gas or drip gasoline and could not be measured through the meter, then it was not the kind of gas that the gas company agreed to purchase from the oil company and clearly the gas company had no right to reduce such product to its possession and convert it to its own use as casinghead gas or drip gasoline prior to the time that it was measured through the meter. The majority opinion state that:
"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 other words, the majority opinion passes upon the class of lease executed and under the holding in the majority opinion the lease is what is referred to in the former decisions of this court as a two-class lease, that is, a lease which covers oil and gas wells only and does not cover and include wells that produce both oil and gas. Hammett Oil Co. v. Gypsy oil Co.95 Okla. 235, 218 P. 501; Smith v. Pulaski Oil Co.,88 Okla. 47, 211 P. 1047; Mullendore v. Minnehoma Oil Co.,114 Okla. 251, 246 P. 837; George v. Curtain. 108 Okla. 281, 236 P. 876; Phillips v. Henderson Co., 101 Okla. 277, 225 P. 668. If the owner of the land and Marland Oil Company did not by the terms of their lease cover and include wells producing both oil and gas, the Marland Oil Company could only assign to the Cosden Oil Company the lease it held on the Martin land, and the Mid-Continent Petroleum Corporation only *Page 51 acquired the rights to the gas and oil under the lease between the Martins and Marland Oil Company and did not acquire the casing-head gas or drip gasoline. So, when this court reverses and remands the cause to the trial court with directions to render judgment in favor of the Mid-Continent Petroleum Corporation for the drip gasoline, in my opinion it is going beyond the agreement involved in this action. The issue relating to the three-class lease, that is, a lease upon which wells are drilled producing both oil and gas, is an issue to be determined between the landowner and the Mid-Continent Petroleum Corporation, and is not involved in this action, and the landowner not being a party to the suit, his rights cannot be adjudicated in this appeal. I am of the opinion that the decision of this court delivered by Mr. Justice Andrews does not pass upon the issues joined under the pleadings and announce a correct rule of law as applied to the facts in this case. I, therefore, most respectfully dissent.
Note. — See under (1) 6 Rawle C. L. 858; R. C. L. Perm. Supp. p. 1844.