Matzen v. Hugoton Production Co.

Fatzer, J.,

concurring: In view of the contentions of the plaintiffs that their royalty is determined at the wellhead and their concession that they must bear a share of the reasonable costs of gathering, processing and marketing the gas produced, I concur that the judgment must be affirmed. I am in full accord that proceeds from the sale of gas is the measure of plaintiffs’ royalty under the terms of the leases. However, I do not wish to be bound by the majority opinion in the event an action would be filed involving a royalty clause as is here presented and the plaintiff alleges, proves and here contends that royalty is determined from proceeds from the sale of gas without deduction of costs of gathering, processing and marketing. Proceeds of a sale, unless there is something in the context showing to the contrary, means total proceeds. (United States v. Stanolind Crude Oil Purchasing Co., 113 F. 2d 194, 198; Ladd v. Upham (Tex. Court of Civil Appeals), 58 S. W. 2d 1037; State v. Brian, 84 Neb. 30, 120 N. W. 916, 917; Dittemore v. Cable Milling Co., 16 Idaho 298, 101 Pac. 593, 133 Am. St. Rep. 98; Warfield Natural Gas Co. v. Allen, 261 Ky. 840, 88 S. W. 2d 989, and authorities cited p. 845 of 261 Ky.)