Byrd v. ForgotsonByrd v. Forgotson
Thе surviving widow in community and legal heirs of the late W. J. Byrd instituted a jactitation or slander of title suit against the defendants, J. M. Forgotson, J. E. Smitherman, Mrs. Mabel M. Palmer, John R. Palmer, Nellie Norton, the Atlantic Refining Company, and the Triangle Drilling Company, Inc., to have cancelled and erased from the conveyance reсords of Claiborne Parish the instruments whereunder Byrd transferred and the defendants procured the mineral rights affecting the SE1/4 of the NW1/4 of Section 17, T. 19 N., R. 5 W., Claiborne Parish, on the ground that this mineral interest has become prescribed because of nonuse for a period of ten years.
The defendants, admitting their right to the mineral interest in question is dependent upon the instruments thus sought to be cancelled, asserted this interest has not prescribed by nonuse because such prescription was interrupted by the drilling of a well on the tract of land affected by the servitude created by Byrd‘s sale of an undivided half interest in the minerаls to W. M. Brothers in 1925 (which includes the 40-acre tract in controversy) and by the acquisition by minors through inheritance of fractional parts of the servitude. In reconvention they pleaded that they be recognized as the owners of an undivided half of the mineral interest in this property in the proportions assеrtedly owned by them, which are as follows: J. E. Smitherman, 1/8th; Mrs. Mabel Palmer and John R. Palmer, as the widow in community and only heir of E. G. Palmer, 1/8th; the Atlantic Refining Company, 1/8th; Nellie Norton, 1/16th; J. M. Forgotson, 1/48th; and the Triangle Drilling Company, Inc., 1/24th.
After the case had been tried on an agreed stipulation of fact, supplemented by the various mesne conveyances through which the defendants claim their mineral interest, the trial judge rendered judgment rejecting the demand of the plaintiffs and decreeing the defendants to be the owners of the mineral interest in the proportions prayed for.
From this stipulation of fact and the instruments in evidenсe, it appears that on April 6, 1925, W. J. Byrd, then the owner in full and perfect ownership of the S1/2 of the NW1/4 and the NE1/4 of the NW1/4 of Section 17, and the SE1/4 of the NE1/4 of Section 18, T. 19 N., R. 5 W., Claiborne Parish, Louisiana, executed a mineral deed whereby he conveyed to W. M. Brothers an undivided half interest in and to all of the minerals affecting these four 40-acre tracts that are contiguous, and, together, comprise 160 acres. Brothers, in turn, and before the end of 1925, sold all of the undivided mineral interest thus acquired by him to various other parties in fractional parts, with the result that all of the mineral rights affecting the SE1/4 of the NW1/4 of Section 17 thus acquired by Brothers in 1925 is now owned by the defendants in the proportions just above given. However, it appears that of the parties acquiring the Brothers mineral interest in the remainder of the 160-acre tract, Wilson T. Peterman, whose interest affected the SW1/4 of the NW1/4 of Section 17, died intestate on March 22, 1930, leaving a surviving widow
When oil was first discovered in this state and the interests of those asserting rights therein became controversial, the courts decreed that the sale of a mineral was nothing more than the granting of a right or privilege to go upon the land for exploration and exploitation purposes, classified such a right as being in the nature of a servitude, and applied the provisions of the Revised Civil Code relative to servitudes in determining the rights of those claiming such an interest. One such рrovision is that the right to a “servitude is extinguished by the non-usage of the same during ten years” (
Counsel for the plaintiffs, however, contends that inasmuch as Brothers disposed of the servitude on this entire 160-acre tract of land by selling it piecemeal and fractionally to numerous persons, each interest thus sold affecting a differеnt surface area, no portion of his undivided half mineral interest in and to the entire tract being sold to any one individual, and inasmuch as none
When, in 1925, the ancestor in title of the plaintiffs executed the mineral deed to Brothers affecting the entire 160-acre tract of land, all parts of which are contiguous, hе created only one servitude. Lee v. Giauque, 154 La. 491, 97 So. 669; Patton v. Frost Lumber Industries, 176 La. 916, 147 So. 33; Hodges v. Norton, 200 La. 614, 8 So.2d 618. Such servitude is indivisible. The subsequent sale of this servitude in fractional parts affecting different surface areas of the tract did not have the effect of dividing the single servitude thus created on the entire tract. Hodges v. Norton, supra.
Counsel for the plaintiffs, however, contends the Hodges case has no application and is not controlling here because the owners of the original servitude in that case never relinquished all of their interest in the servitude, retaining a half interest affecting the entire tract, and that it was, therefore, immaterial whether the transferee of a portion of their interest in this entire servitude did dispose of the interest acquired by him by selling the portion affecting approximately half of the surface area, retaining the remainder for himself,
We think counsel has misinterpreted the issues in the Hodges case. In that case Esmond Hodges and his wife, Augusta Ann, on November 6, 1915, sold a tract of some 440 acres of land to A. J. Hodges, resеrving unto themselves an undivided half interest in the oil, gas, and other minerals thereunder for a restricted period of fifteen years. Thereafter Hodges died and his widow and heirs, on October 29, 1923, sold an undivided one-fourth interest in the minerals in the entire acreage to J. A. Selby, Jr., or an undivided half of their reserved undivided half interest, though no mention was made of the fifteen year restriction. Two days later on October 31, 1923, Selby sold the interest thus acquired by him from Augusta Ann Hodges and her children to R. W. Norton, but only inasmuch as this interest affected two non-contiguous tracts of the 440 acres, — one of 80 acres and the other of 140 acres — he retaining the mineral interest acquired by him in and to the remaining 220 acres. Again no mention
It is our opinion, therefore, that the fact that the interest of the minors is limited to the rights and benefits accruing from the exploitation of these minerals on the small tract of land affected by their interest doеs not prevent the suspension of the prescription running against the entire servitude. Such suspension enures to the benefit of the major co-owners of the servitude (although their right to benefit by the exploitation of the minerals is limited to a different surface area than that in which the interest of the minors is vеsted) the same as if the servitude had been exercised by the drilling of a well on the surface area affected by the interest of the minors and the prescription thus interrupted
For the reasons assigned, the judgment appealed frоm is affirmed, at the cost of the appellants.
Dissenting Opinion
Assuming for the sake of argument that a mineral interest is a servitude (the assumption being for that purpose only because I doubt seriously the correctness and soundness of our jurisprudence under which a mineral interest is held to be a servitude), I am of the oрinion that the ten year non-user prescription has not been suspended as to the rights contested herein. The suspension is claimed under the provisions of
The cases of Sample v. Whitaker, 172 La. 722, 135 So. 38; Ohio Oil Company v. Cox, 196 La. 193, 198 So. 902; State v. Fontenot, 192 La. 95, 187 So. 66; Standard Oil Company of Louisiana v. Futral, 204 La. 215, 15 So.2d 65; and Hodges v. Norton, 200 La. 614, 8 So.2d 618, cited in support of the majority holding, are not directly applicable here. In the first four cited cases the incapacitated persons owned fractional
For these reasons I respectfully dissent.
Addendum
On Rehearing
A rehearing was granted in this case because our later decision in Ohio Oil Company v. Ferguson et al., 213 La. 183, 34 So.2d 746 was directly contrary in principle to the original opinion herein. Subsequently, a rehearing was granted in the Ohio Oil Company case and both matters have been argued and submitted at the sаme time for our final decision.
The important question presented in these cases is whether owners of a fractional area of a mineral servitude may avoid the extinguishment of their rights by prescription of non-user, where the running of prescription has been interrupted as to others by use of the sеrvitude in another area (or, as in this matter, suspended by ownership of minors), on the theory that to sustain prescription would sanction a division of the servitude in violation of
The facts of this case have been fully stated in our original opinion and it would
The contention of the defendants is that, sincе a portion of the area of the servitude (of which the 40 acre tract forms a part) is fractionally owned by minors, the running of prescription has been suspended under
This proposition has this day been rejected by our decision on rehearing in Ohio Oil Company v. Ferguson et al., where all of the points raised by the defendants have been fully discussed and resolved against them. The reasons given in that matter control the result here and compel a reversal of the judgment below.
For the reasons assigned, the judgment appealed from is reversed and it is decreed
All costs of this suit are to be paid by defendants. We reserve to them the right to apply for a rehearing.
O‘NIELL, C. J., concurs in the decree for the reasons given in the majority opinion rendered on the original hearing of the case of Ohio Oil Co. v. Ferguson, 213 La. 183, 34 So.2d 746.
FOURNET, J., dissents for the reasons assigned in the original opinion and for the reasons assigned in his dissenting opinion to the case of Ohio Oil Co. v. Ferguson et al., 213 La. 183, 34 So.2d 746.
PONDER, J., dissents.
HAMITER, J., concurs in the decree.
BOND, J., absent.