Appeal from the District Court of the United States for the Western District of Oklahoma; Bower Broaddus, Judge.
Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.
Bert Lackey and Estella Lackey, his wife, executed and delivered to George Gorton an oil and gas lease on a twenty-acre tract of land in Caddo County, Oklahoma. The lease reserved one-eighth of the oil to the lessor. It contained the following provisions with respect to gas produced from the lease:
" * * * lessee covenants and agrees: * * *
"2nd. To pay the lessor Two Hundred and No/100 Dollars each year in advance, for the gas from each well where gas only is found, while the same is being used off the premises, and lessor to have gas free of cost from any such well for all stoves and inside lights in the principal dwelling house on said land during the same time by making his own connections with the wells at his own risk and expense.
"3rd. To pay lessor for gas produced from any oil well and used off the premises at the rate of One Hundred & No/100 Dollars, per year, for the time during which such gas shall be used, said payments to be made each three months in advance. * * *
"Lessee shall have the right to use, free of cost, gas, oil and water produced on said land for its operations thereon, except water from the wells of lessor."
In the year 1929, the Lackeys were divorced and Estella Lackey became the owner of a one-half interest in the twenty-acre lease. On October 7, 1941, she conveyed one-half of her royalty interest to William H. Harding.
On October 28, 1929, Ramsey Petroleum Corporation*fn1 acquired the lease. On February 20, 1930, Ramsey conveyed an undivided one-half interest to Mid-Kansas Oil and Gas Company, a wholly-owned subsidiary of the Ohio Oil Company.*fn2 Mid-Kansas changed its name to the Marathon Oil Company.*fn3 On September 14, 1936, Marthon assigned its undivided one-half interest in the lease to Ohio. Ramsey continued to hold the other undivided one-half interest.
On September 13, 1930, Marathon completed a gas well on the leased premises known as Well No. 6. The total amount of natural gas produced from the well from January 1, 1932, to April 1, 1942, was 3,795,957,000 cubic feet. Of this production, Ramsey and Ohio used 793,626,000 cubic feet off the leased premises and sold 3,002,331,000 cubic feet.
Estella Lackey and Harding brought this action against Ohio and Ramsey for the conversion of the gas produced from such lease and sold. From a judgment in favor of Ohio and Ramsey, Estella Lackey and Harding have appealed.
In Mussellem v. Magnolia Petroleum Co., 107 Okl. 183, 231 P. 526, 527, the court construed the following royalty provisions of an oil and gas lease:
"First: To deliver to the credit of the parties of the first part (the plaintiffs herein) their heirs or assigns, free of cost, in the pipe line to which it may connect his well, the equal one-eighth part ...