Sunburst Exploration, Inc. v. Jensen

THOMAS, Justice,

concurring specially, with whom ROSE, Chief Justice, joins.

I concur in the result of the majority opinion in this instance. It is my position, however, that it is not necessary to justify that result as a matter of construction of an ambiguous contract. I would support judgment of the trial court on the basis of the language of the clause reserving the overriding royalty on behalf of the appellee’s predecessors in interest. The agreement, when read in context, provides for a five per cent overriding royalty to F. F. Hintze; and a five per cent overriding royalty to N. H. Jensen “of the production from lands on which the Government royalty shall be five *826(5%) per cent or less, known as the primary or preferred lands,” and then provides for a lesser royalty on other lands. Since no discovery then had been made, it was not possible to describe the five per cent lands with greater specificity. Nevertheless, these words were only words of description designed to designate the lands on which the total of ten per cent royalty would be paid. The contract is in writing and the language is sufficiently clear and unambiguous that the intention of the parties can be secured from the words of the contract. Amoco Production Company v. Stauffer Chemical Company of Wyoming, Wyo., 612 P.2d 463 (1980).