The fuller light of an extended rehearing has converted the reluctance with which my acquiescence in the former affirmance of this appealed-from judgment was recorded into a conviction that it should be reversed; wherefore, this dissent from the present order overruling the appellant's motion for rehearing.1
A review of the original opinion reveals an obvious flaw in the reasoning of the Court. We said: "Both sides agree that . . . the agreement is unambiguous." (Opinion, at 2) Having made that determination and it was a correct one we departed from the well marked paths which should have guided us in our determination of the issues before us. We quoted at length from two cases and cited others, some of which probably were inapplicable as applied to an unambiguous instrument.2
Assuming the truth of our major premise the instrument is unambiguous we erred in turning immediately to "Surrounding Circumstances" and to "Interpretation by and Conduct of the Parties." (Opinion, at 4) Instead, we should have followed the teachings of one of the cases which we cited: City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex. 1968):
"It is elementary that if there is no ambiguity, the construction of the written instrument is a question of law for the Court. Myers v. Gulf Coast Minerals Management Corp., 361 S.W.2d 193 (Tex.Sup. 1962). It is the general rule of the law of contracts that where an unambiguous writing has been entered into between the parties, the Courts will give effect to the intention of the parties as expressed or as is apparent in the writing. In the usual case, the instrument alone will be deemed to express the intention of the parties for it is objective, not subjective, intent that controls."
See also, Middleton v. Broussard, 504 S.W.2d 839, 841 (Tex. 1974):
"Neither party contends that the above deed is ambiguous; therefore, our problem is to determine the parties' intent by construing the language of the deed. Newsom v. Newsom, 378 S.W.2d 842 (Tex. 1964); Benge v. Scharbauer, 152 Tex. 447, 259 S.W.2d 166 (1953)."
The lengthy quotation from Harris v. Rowe, 593 S.W.2d 303, 306 (Tex. 1979), found on page 3 of our opinion, omits the language in Harris which dictates a contrary result to that reached by the majority. The Court in Harris used this unequivocal language:
"Interpretation of a contract becomes a fact issue to be resolved by extrinsic evidence only when application of pertinent rules of construction leaves a genuine uncertainty as to which of two meanings is proper." (emphasis supplied)
Having determined, at least to my own satisfaction, that the reasoning of the original opinion is contrary to established legal principles, I turn now to a consideration of the question presented by the appeal:
*Page 803Are plaintiffs entitled to be paid one-half of the seven-eighths working interest in oil, gas, condensate, and gas (including
casinghead gas), in addition to their reserved one-eighth interest therein?
As noted in the opinion, the original 1932 lease reserved only one-half of the "oil accruing to the seven-eighths working interests from that produced and saved from said land." (Opinion, at 2) The instrument did not include gas and plaintiffs do not so contend.3 So, if plaintiffs are to recover their half of the working interest gas, it must be from some source other than the lease.
This follows because the terms of the lease show conclusively that the contracting parties knew the difference between "Oil" and "Gas, including Casinghead Gas or other gaseous substance". Compare Paragraph IV with Paragraph V of the lease. And, it is too late now to argue that "Oil" and "Gas" are not well-known terms with fixed and definite meanings. See Magnolia Petroleum Co. v. Connellee, 11 S.W.2d 158, 160 (Tex.Comm'n App. 1928, jdgmt adopted), and Phillips Petroleum Co. v. Gillman, 593 S.W.2d 152, 154 (Tex.Civ.App. Amarillo 1980, writ ref'd n.r.e.).
Since I agree with the factual statements as well as the contentions, I adopt as my own the language used by defendant in its motion for rehearing addressing the effect of the 1935 Amendment which the court sets out at great length on page six of the opinion. Defendant's counsel uses this language:
"Finally, again without explanation, the Court mentions in its Opinion the 1935 Amendment which refers to `deliveries to lessors of one-half (1/2) of the oil, gas and other minerals accruing to the seven-eighths working interest.' Even the Appellees have never contended that this Amendment reserved or created the interest in working interest gas which they now claim. Instead, their position from the beginning has been that this language merely `confirms' that such an interest was reserved to them by the original 1932 lease itself (Brief of Appellees, p. 15), but they have never identified any provision in the lease which purports to reserve such an interest. Appellant submits that the 1935 Amendment cannot confirm the existence of an interest that was never created in the first place."
In Sharp v. Fowler, 151 Tex. 490, 252 S.W.2d 153, 154 (1952), Chief Justice Hickman restated a rule well founded in our jurisprudence, saying:
"A reservation of minerals to be effective must be by clear language. Courts do not favor reservations by implication."
The 1932 lease was clear oil was reserved out of the working interest; gas was not so reserved.
Finally, I note that under their twelfth assignment, defendant complains that we overruled "`all of appellant's points of error' " without discussing any of the points which related to ratification, waiver, estoppel, adverse possession, or limitations bar, all of which were properly before us.
I now withdraw my concurrence in the original opinion and enter this dissent from an affirmation of the trial court's judgment.