Hopkins v. Texas Co.
| Decision Date | 09 January 1933 |
| Docket Number | No. 584.,584. |
| Citation | 62 F.2d 691 |
| Parties | HOPKINS v. TEXAS CO. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Charles E. McPherren, of Oklahoma City, Okl. (S. P. Render and Neal E. Maurer, both of Oklahoma City, Okl., on the brief), for appellant.
B. W. Griffith, of Tulsa, Okl., and C. B. Cochran, of Oklahoma City, Okl. (John R. Ramsey, of Tulsa, Okl., Y. A. Land, of Denver, Colo., Harry T. Klein, of New York City, and Ames, Cochran, Ames & Monnet, of Oklahoma City, Okl., on the brief), for appellee.
Before LEWIS, COTTERAL, and PHILLIPS, Circuit Judges.
This suit was brought by appellant, Hopkins, as lessor under three leases dated respectively April 4, 1925, December 7, 1925, and December 16, 1919, against appellee, a successor lessee, to obtain an accounting for gasoline and residue gas, manufactured and extracted as by-products from casinghead gas. The answer was that the defendant had fully accounted by rendering up the oil and gas stipulated for in the leases, except the sum of $81.23, which was tendered into court. The defense was sustained and the bill was dismissed.
An objection to the consideration of the case on the merits was that the appellant has not assigned sufficient specifications of error; but we think the objection is not well taken. An appeal in an equity suit brings the case up de novo and in order to avoid injustice a plain error, even though not assigned, should be considered. Central Improvement Co. v. Cambria Steel Co. (C. C. A.) 201 F. 811; National Acc. Society v. Spiro (C. C. A.) 78 F. 774.
The leases are not essentially different. They each bind the lessee to deliver to the lessor one-eighth of the oil produced and saved from the premises, and pay annually one-eighth of the gas proceeds, or $200, where gas only is found and is used off the premises, and have free gas for domestic use, or one-eighth of the gas if used to manufacture gasoline or any other by-product. The third sub-divisions obligate the lessee to account for one-eighth of the gas from an oil well, when used off the premises or in the manufacture of gasoline or any other product, and when used for the manufacture of gasoline.
All the wells were oil wells. The controversy is whether, as appellant contends, casinghead gas should be separated into its constituent parts, and royalties paid on gasoline and other products produced from it, as oil royalty, under the first subdivisions of the leases, and the residue of gas paid for as gas under the third subdivisions of the leases; or, as appellee insists, the lessee was bound only under the third subdivisions to render but one-eighth of the casinghead gas and not its constituent elements of gasoline and gas, when separated through a casinghead plant in a manufacturing process.
It is our opinion that gas from an oil well must be...
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