Badger v. King
| Decision Date | 16 December 1959 |
| Docket Number | No. 5337,5337 |
| Citation | 331 S.W.2d 955 |
| Parties | Robert BADGER et al., Appellants, v. E. F. KING et al., Appellees. |
| Court | Texas Court of Appeals |
Perkins, Bezoni & Kirwan, Midland, for appellants.
J. K. Smith, K. M. Nolen, Fort Worth, Stubbeman, McRae, Sealy & Laughlin, W. B. Browder, Jr., Milton L. Bankston, Midland, Neill, Blanks, Lewis & Logan, San Angelo, Legg & Saxe, Midland, Gerald FitzGerald, Midland, Storey, Armstrong & Steger, Dallas, Jones & Bednar, Los Angeles, Cal., Gable, Gotwals & Hays, A. C. Saunders, Tulsa, Okl., Chappell & Maddux, Nowata, Okl., Derwood Knight, Albuquerque, N. M., for appellees.
Appellants here were plaintiffs below in an action described as a trespass to try title suit. They brought the suit against all other owners of mineral interests, including the appellees, seeking to recover 4/5ths of the mineral and royalty interest in certain property located in Andrews County, Texas. The case was tried to the court without a jury. The controversy was based on the construction of a deed, and the judgment of the court found and declared that, under said deed, there was conveyed to the grantees therein a 1/64th mineral interest in the oil and gas on and under said property, and a different and separate royalty interest described as being 1/64th of the 1/8th oil and gas royalty provided for and to be paid under an instrument known as the 'Doran lease.' From this judgment appellants bring this appeal.
Inasmuch as the entire lawsuit is based on the construction of the above-mentioned deed, the same is included herein for reference purposes:
'The State of Texas
County of Tom Green}
Know all men by These Presents:
'That, We, E. F. King and wife, Rebecca King of the County of Tom Green, and State of Texas, have and by these presents do grant, bargain sell, and convey, set over, assign, and deliver unto Ralph Pembrook, G. K. Harrison, A. H. Anderson, W. A. Flowers, and Robert Badger, all of Reagan County, Texas, the following, to-wit:
'One sixty-fourth (1/64) interest in and to all of the oil and gas in and under and that may be produced from the following described lands situated in Andrews County, Texas, to-wit:
'Section 10, Block A-42, H. H. Harrington Survey, consisting of 640 acres.
'It is expressly understood by and between the parties that the vendors are the owners of a one-sixteenth (1/16th) of all the royalty, and that the grantees are purchasing a one sixty-fourth (1/64) of the royalty (that is one-fourth (1/4) of one sixteenth of the oil and gas produced in and from nay or all wells or other operations situated on the specified tract of land described in this instrument, together with rights of ingress and egress at all times for the purpose of mining, drilling, and exploring said land for oil and gas and removing the same therefrom.
'It is understood and agreed that one-sixteenth (1/16) of the money rentals which may be paid to extend the term within which a well may be begun under the terms of said lease are to be paid to the said grantees and in the event that the said above described lease for any reason becomes cancelled or forfeited, then and in that event the grantors, their heirs, administrators, executors and assigns, may or may not as they see fit, lease said land for oil and gas mining purposes; but if the same be by the grantors so leased, then said oil and gas mining lease shall provide for the payment of a royalty of one-eighth (1/8) part of all oil produced and saved from the lands above described and delivered free of cost in the pipe line, and a royalty of one-eighth (1/8) of the value of natural gas produced from said premises when said gas is sold or used off the premises, or one-eighth (1/8) of the net proceeds of the sale of such gas and a royalty of one-eighth (1/8) of the net amount of gasoline manufactured from natural or casinghead gas, and lessees, Ralph Pembrook, G. K. Harrison, A. H. Anderson, W. A. Flowers and Robert Badger, their heirs or assigns, shall have in such lease if so made the precise royalty interest heretofore described, and shall be entitled to one-sixteenth (1/16) part of any lease money.
'Should the lessor make a subsequent lease, it shall not be necessary for the grantees herein, their heirs or assigns, to join in the making of such lease.
'This sale is made for and in...
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...will take judicial notice that the usual royalty in an oil and gas lease is one-eighth of the oil and gas produced. Badger v. King, 331 S.W.2d 955 (Tex.Civ.App.1959); State Nat. Bank of Corpus Christi v. Morgan, 135 Tex. 509, 143 S.W.2d 757 (Tex.Comm.App.1940); Patterson v. Texas Co., 131 F......
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