190 So. 408 | La. | 1939
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *288 The question in this case is whether an owner of a mineral lease may maintain an action for slander of title without having possession of the leased premises, but basing his right of action upon the possession held by the lessor.
The plaintiff has a mineral lease on 40 acres of land which his lessors possess as owners. He has never exercised any right of possession as lessee. He avers that the defendants are slandering his title to the lease by claiming that they own the land. The defendants filed exceptions of no cause or right of action and of nonjoinder of the lessors as plaintiffs. The exceptions were overruled. The defendants pleaded also that the plaintiff had no *290 right of action because he and his lessors were not in possession of the land. The defendants asked to have the question of possession determined in limine. The judge ordered a hearing on the question of possession alone; and at the hearing the plaintiff proved that his lessors were in possession of the land, cultivating it as a cotton farm. The judge held that the jactitation suit was properly founded upon the possession held by the lessors. The judge therefore overruled the defendants' plea of want of possession in the plaintiff through his lessors. The defendants refused to file an answer to the suit; hence judgment went against them by default, ordering them to institute a petitory action against the plaintiff within thirty days, and declaring that, if the defendants failed to bring the suit within that time, the plaintiff would be recognized as the true and lawful owner of the mineral lease, so far as the defendants in this suit are concerned. The defendants (except one who made no appearance in the case) are appealing from the decision.
The judgment appealed from is based upon Act No. 205 of 1938, which provides:
"That oil, gas and other mineral leases, and contracts applying to and affecting such leases or the right to reduce oil, gas or other minerals to possession, together with the rights, privileges and obligations resulting or flowing therefrom, are hereby defined and classified as real rights and incorporeal immovable property, and may be asserted, protected and defended in the same manner as may be the ownership or possession of other immovable property by *291 the holder of such rights, without the concurrence, joinder or consent of the landowner, and without impairment of rights of warranty, in any action or by any procedure available to the owner of immovable property or land.
"Section 2. That this Act shall apply to all such transactions whether entered into prior to the passage of this Act or not."
The plaintiff invokes the cardinal rule of statutory construction, as expressed in article 18 of the Civil Code, that the universal and most effectual way of discovering the true meaning of a law, if its expressions are doubtful, is to consider the cause which induced the Legislature to enact it. It is a matter of general knowledge, and is conceded by all parties to this suit, that the cause which induced the Legislature to enact Act No. 205 of 1938 was the decision in Gulf Refining Co. v. Glassell,
But for the act of 1938 there would be some doubt whether a mineral lease is susceptible of such possession as to permit the lessee to maintain an action for slander of title. We say this because in article
The judge of the district court, in his written opinion in this case, maintains that the law makes this distinction between the right of a landowner to maintain an action for slander of title, and the right of the owner of incorporeal immovable property to maintain such an action: That, whereas the landowner must have actual possession, the owner of a real right needs only theenjoyment of his right, to maintain an action for slander of title. The judge cites article 47 of the Code of Practice and article 3454, subd. 2, of the Civil Code, on the subject of the possessory action. The only analogy between the possessory action and the action for slander of title is that neither one of these actions can be maintained by an owner who is not in possession of his property. Crowell Spencer Lumber Co. v. Burns,
Article 47 of the Code of Practice provides:
"The possessors entitled to bring these actions [meaning possessory actions] are those who possess as owners. *295
"Persons entitled to the usufruct or to the use of a real estate, and others having real rights growing from such real estate, may also bring their [possessory] action, when disturbed in the enjoyment of their rights." [The italics are by the writer of this opinion].
Article 3454, subd. 2, of the Civil Code, on the subject of the possessory action, provides:
"That every person who has possessed an estate for a year, orenjoys peaceably and without interruption a real right, and is disturbed in it, has an action against the disturber, either to be maintained in his possession, or to be restored to it, in case of eviction, whether by force or otherwise." [The italics are by the writer of this opinion].
The word "enjoy," in these articles of the Codes, has the same meaning, in reference to an owner of a real right, that the word "possess" has in reference to an owner of land. Article 3454 of the Revised Civil Code was numbered 3417 in the Code of 1825, and is a literal translation of the French text. In the French text the word joui, which is a form of the verb jouir, is used. The word jouir, according to Spiers Surenne's French Pronouncing Dictionary, means: "to enjoy; to have the enjoyment of; topossess." In Webster's New International Dictionary, one of the definitions of the word enjoy is "to have, possess," and another definition is "to occupy or have the benefit of." In Black's Law Dictionary, the word enjoyment is defined as "the exercise of aright." In Ballentine's Law *296 Dictionary, the term adverse enjoyment is defined as "The use ofan easement under a claim of right."
In every action for slander of title the defendant has the right to convert the suit into a petitory action, in which he becomes the plaintiff and the original plaintiff becomes the defendant. Sherburne, Receiver, v. Iberville Land Co., La.Sup.,
The plaintiff is not without a remedy, under the provisions of Act No. 205 of 1938. His remedy is provided for specifically in Act No. 38 of 1908, which provides for the institution of suits to establish title to real estate where none of the parties is in the actual possession of the property.
The judgment against the appellants is annulled and reversed; their exception of no right of action is sustained; and the plaintiff's suit against them is dismissed at his cost.