On Petition for Rehearing.
BURKE, Judge.Respondent has filed a vigorous petition for rehearing in which he asserts that, in the opinion filed, we have failed in our statutory duty to determine fully the nature and extent of the parties’ interest in the land described in the complaint. He states, “the issue as to the specific minerals, gold, silver, copper, cinnabar, lead and other mineral metals is. presented here and now.”
*44If we were to agree with respondent’s construction of the lease, to wit: that it granted an interest in gas, oil and associated hydrocarbons only, we could, of course, decide that issue, for' such an agreement would, of itself, exclude such metal minerals from the grant in the lease. Also we could reach the same conclusion if we thought there was any persuasiveness or validity in respondent’s argument that metal minerals cannot be included in the lease because the lease provides for a royalty on other minerals of one tenth of their value at the mine, and that value of metal minerals can only be determined at the smelter. If the premise of this argument be true and the value of ore cannot be determined by an assay of a sample, it is, nevertheless, obvious that the ore would have a value at the mine and that value would be its value at the smelter less the cost of transportation.
In addition to the lease, the .only evidence we have in this case is a stipulation that plaintiff would testify that he owned the land described in the complaint, subject only to an oil and gas lease owned by the defendant and that all minerals except oil and gas and associated hydrocarbons are unencumbered by the lease; and that defendant would testify that he owned a lease of oil, gas and all other minerals in or under the described land and that the words “all other minerals”, as used in the lease, included everything that was neither animal nor vegetable.
Construing the lease, we held that both parties were wrong, that is to say: we held that the lease included minerals other than hydrocarbons and did not include everything that was neither animal or vegetable. That is as far as we could go under the evidence in the case.
In all of the reported cases with which we are familiar, (some of which are cited in the opinion filed) the question of whether a specific substance was a mineral within the terms of a grant or lease has not been decided abstractly but upon the basis of the evidence in the case with respect to the substance in controversy. The statute (section 32-1710, NDRC 1943) which provides that, in an action to determine adverse claims, “The court in its decision shall find the nature and extent of the claim asserted by the various parties” certainly contemplates that the attorneys for the parties will provide sufficient evidence to enable the court to decide the issues they want decided and that the decision of the court will go no farther than the evidence warrants. As to the other matters urged in the petition, we think enough has been said in the opinion filed. The petition is denied.
GRIMSON, C. J., and JOHNSON, SATHRE and MORRIS, JJ., concur.