Wenco v. EOG Resources, Inc., 822 N.W.2d 701

Dockters conveyed a 64/160 royalty interest to Northwestern National Bank in 1954 and later conveyed an 80/160 mineral interest to Grinnan in 1957, with the 1957 deed stating it was subject to existing rights under valid leases.
Grinnan's successor QEP and Wenco eventually acquired interests in the tract; Wenco obtained the Dockters’ remaining minerals in 1993 and a warranty deed in 2003 subject to prior mineral reservations.
In 2006 Wenco’s mineral lease was assigned to EOG, which drilled a well and, after title opinions and division orders, allocated initial royalties: Wenco 0.03335841 and QEP 0.24376880.
Reanalysis in 2008 revised royalties to Wenco 0.02505015 and QEP 0.250000, prompting a revised division order; EOG began repayments, then withheld payments to recover prior overpayments.
In 2010 Wenco filed suit to quiet title, claiming QEP’s unjust enrichment and EOG’s conversion, challenging the revised division order as improper.
District court granted summary judgment for EOG and QEP, ruling they did not waive rights and that Acoma Oil Corp. v. Wilson governs burden allocation, placing the entire burden on Wenco.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Proper burden under Duhig/Acoma rules	Wenco: burden should fall pro rata due to Bank’s prior royalty.	EOG/QEP: Acoma requires the later grantee bear burden if reservation is not reserved; Dockters retained adequate minerals.	Acoma controls; Wenco bears the entire burden.
Waiver by EOG of changing division orders	EOG waived its right by revising division orders to reflect new royalty allocations.	Waiver requires voluntary relinquishment of a known right; EOG’s actions did not constitute a waiver of rights.	No waiver by EOG as a matter of law.
Waiver by QEP regarding royalty burden	QEP’s 2007 participation and signing of joint operating agreement implied waiver of burden against its interest.	QEP reviewed title opinion and did not abandon its right to the contracted interest; actions do not show waiver.	No waiver by QEP; claims against EOG and QEP dismissed.

Acoma Oil Corp. v. Wilson, 471 N.W.2d 476 (N.D. 1991) (Duhig-type rule allocates burden to existing owners when prior royalty exists)
Duhig v. Peavy-Moore Lumber Co., 144 S.W.2d 878 (Tex. 1940) (grantor cannot reserve and convey the same mineral interest)