26 So. 2d 826 | La. | 1946
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *316
Miss Mary Amanda Allison, Alex P. Allison and Mrs. Rebekah A. Humes, claiming a half mineral interest in two tracts of land owned and possessed by the defendants respectively, brought suit to be declared the owners of the one-half mineral interest. Inasmuch as the two tracts of land were possessed and claimed by different parties the plaintiffs brought two suits, but the suits were afterwards consolidated by consent of all parties and were dealt with as one suit. The purpose of the suits was to interrupt the prescription of 10 years acquirendi causa, under Article
According to the jurisprudence prevailing at the time when this suit was filed, if among the coproprietors of a mineral right in land belonging to a third party there was one coproprietor against whom the 10 years' liberative prescription could not run, as, for instance, a minor, his or her minority suspended the prescription even as to the coproprietor or coproprietors not under legal disability. The hearing of this case in this court was delayed because one of the attorneys was in the armed forces overseas. During that delay the legislature *319
met and passed Act No.
The right of action of Miss Mary Amanda Allison is sustained by the decision in Sample v. Whitaker,
The case of Sample v. Whitaker, was a sequel of the case bearing the same title, reported in
"Under Act No.
"So that under that act any minor had, until he reached his twenty-second birthday, the right to assert a cause of action which might otherwise be lost under the prescription acquirendi causa by possession in good faith for ten years with a title translative of the property; and, if he died before reaching his twenty-second birthday, his heirs, whether of full age or still minors, had the same time in which to assert that cause of action as he himself would have had, had he lived."
It had been decided in Palmer Corporation of Louisiana v. Moore,
The defendants rely upon the decision by the Court of Appeal for the Second Circuit in the case of Hassler v. Brinker, La.App.,
The defendants argue that this suit cannot be maintained as a petitory action because the defendants are not in possession of the mineral interests claimed by Miss Mary Amanda Allison. The Code of Practice, in Article 43, recognizes that the owner of a real right, or incorporeal immovable property, may resort to the petitory action against the party in possession of the immovable property. The article provides: "The petitory action, or one by which real property, or any immovable right to such property may be subjected, is claimed, must be brought against the person who is in the actual possession of the immovable," et cetera. [The italics are ours.]
The right of Miss Mary Amanda Allison to prosecute her suit as a petitory action is recognized also by Act No.
The defendants cite the following cases to support their argument that a mineral right, such as the right to the oil, gas or other minerals beneath the surface *323
of a tract of land, is not susceptible of possession by the owner of the right except by actually exercising the right by operations for the production of the oil, gas or other minerals: Connell v. Muslow Oil Co.,
Our conclusion is that the defendants' exception of no cause or right of action should have been overruled so far as the claim of Miss Mary Amanda Allison is concerned.
The judgment appealed from is annulled and reversed, the exception of no cause or right of action is overruled so far as the suit of Miss Mary Amanda Allison is concerned, and the case is ordered remanded in order that her suit may be proceeded with on its merits, and to have the suit of Alex P. Allison and Mrs. Rebekah A. Humes dismissed for having been abated by Act No.