Ohio Oil Co. v. Ferguson, 34 So. 2d 746

So.2d 746 OHIO OIL et al. FERGUSON CO. v.

No. 37548.

Feb. 1946. Rehearing

On Dec. 1947.

Thompson, Cavanaugh, & Mc- Lewes Coy King, Charles, & all A. of Lake Jerome Broussard, Martinsville, of St. P.Wm. Hardeman, Charles, of amici curiae. Lake O’NIELL, Chief Justice. proceeding This is concursus for apportionment several claimants among proceeds royalty one-eighth interest produced certain oil Oil Ohio Company as lessee a tract of land parties Parish. Several of the Claiborne proceeding appealed to the judgment apportioning among the fund Each appellant the claimants. of course is complaining judgment that is adverse to his interest. appellants One Toldan Royalty Corporation, whose one-fourth in a 40-acre tract was extinguished by to have been held liberandi causa. Fannie Bond Mrs. W. owns 40-acre tract, described as SE% NEJ4 W.; N., .21 in section T. 23 R. Irwin, Egan, Byron Cook, A. & Clark expiration it at the she owned time of the Smith, Bolin, Foster, D. Hall H. & C. years, alleged prescription the 10 J. Martin, Tucker, Py- & Perkins, Bronson Royalty the mineral interest of the Toldan Smith, Hussey & all Pyburn and & burn Corporation held to have her inured Goff, McBride & Shreveport, and may benefit. She considered therefore Ruston, appellants. appellee appeal as the so far Corporation Benoit, L. Toldan P. D’Artois and O. is concerned.

L.R. J. Shreveport, plaintiff-ap- Hasty, all concerning appeal facts pellee Co. Ohio Oil July P. disputed. Bond, the On R. Bond,

Herold, Herold, & Shreve- Fannie Cousin ancestor in title Mrs. W. Lewis, Shepard, Liskow, Gerard & to one C. port, sold S. Clark one-fourth in- 193 Clark a tract land con- in which retained his one-fourth of

terest in the minerals suspended prevented mineral described interest 240 acres taining S% SWy, Wy2 SE14, prescription NEJ4, the servitude not E% 240- N., The 8 W. on the 21 T. 23 R. 200 acres but also on the acres on Section contigu- Royalty Corporation consists six which the Toklan ac- therefore acre tract Bond quired R. P. subdivisions. As judge ous 40-acre mineral The servitude. of land the entire 240 operations acres drilling owner of decided that in the production interest the one-fourth sale of oil on the his 200 acres which mineral servi- to Clark a minerals created Clark retained his one-fourth mineral in- 19, 1921, July tude whole tract. On on the prevent pre- terest did not running Bordages one-fourth against Clark I. R. scription sold the servitude on the 40 NEy of interest in SEJ4 acres in which he sold his one-fourth min- retaining Section one-fourth mineral eral Bordages, interest in which 200 acres. The remaining Royalty Corporation Toklan afterwards Royalty Corporation acquired Toklan the acquired the one-fourth mineral interest. one-fourth mineral interest in the SEJ4 judgment The that declaring conveyances by Section 21 mesne NE14 mineral servitude which Clark sold to Bordages. operations from I. R. Drilling Bordages July and which was were had that tract and oil was 40-acre acquired afterwards Royalty the Toklan produced January 1929. therefrom until Corporation, extinguished by pre The last well on was aban- acres scription of 10 years supported by the operations Drilling doned March 1929. provisions paragraph of the second remaining were continued however on the article 803 of the Civil Code. The first in which reserved the acres Clark had paragraph predial of that article deals with pro- one-fourth mineral interest and oil was servitudes, servitudes, or real say, that is to continously, duced therefrom so that it estate, with servitudes due to an or a tract disputed servitude distinguished personal which was created of the one- sale servitudes, or those which per are due to fourth mineral interest to Clark Bond paragraph The first provides sons. July extinguished was not if estate to which an servitude due and coproprie which is owned two or more far as the so tors, parti divided affected in which becomes means of

servitude the 200 acres tion, proprietor who continues to Clark retained his in- use the one-fourth mineral preserves it, Corporation terest. The Toklan do not continue to use it drilling operations those who during contends that required for production period had on the 200 acres the lose gas for the right by prescription. oil, second or other minerals in that deals, specifically, paragraph of the land on which he has of article 803 loses it period personal nonuse for servitudes, those years, servi- persons. subject de- paragraph due to This respects tude becomes free clares: several from it as “If be due him. persons, days, as but on different water, of he drawing who does exercise The argument of the Toklan right, it, subject his and the estate to loses Corporation upon is the doctrine founded it, to the from servitude becomes free indivisibility and, servitudes, speci- of of

respects him.” fically, Code, upon article of the Civil which declares the of servi- difference, ap in the There is no tude, themselves, considered in plicable principles law, between a servi of susceptible division, of either real or im- persons gives more tude to two or aginary, impossible it is because that an right of the to the land draw water from upon estate another should estate a gives another and servitude which a part right way, view, of a or of two or to take persons right more the the right servitude, other and also that an es- from of another. gas oil or the land be charged part tate aof servitude. ap any difference, Nor is there provisions The are modified article law, plicable principles of the between by the in paragraph statement the second dividing a advantage of the of such servi thereof that the a use of days stipulating tude each on what may days be or hours. limited certain persons the to whom the servitude due indivisibility The so- doctrine of the may right, dividing his exercise right'of called also servitude modified advantage part by stipulating the of the provisions by the of the of article 657 Civil persons of the whom land on which each although where it declared may his right. is due exercise indivisible, of servitude be and must substitute, may the words “min Hence we whole, be established for the and not a for “water”, gas” oil or the word eral part it, nothing prevents advantage parts words “different substitute the resulting divided, being from it from if days”, land” for the words “different susceptible of division. paraphrase paragraph the second thus Code, by Spears al., the Civil saying 803 of decision in article Nesbitt et precedent So.2d is a mineral servitude be due to if two a In the instant case. the case cited the persons, parts but on different of the more subject that is he tract of containing owner land does not exercise explore who consisting acres and three 40-acre tracts row, horizontal section. being stipulated that the fact it was N% of the con- lessee not have would into entered NW% NW% NE% regular section, pool- certain a half transferred tract if it so-called did not include the oil, gas ing agreement parties minerals on the of all Shields, owning the land to one whom L. from in the half-sec- G. mineral interests the Trinity the tion. Royalty Company, one of Within years primary the five term suit, Eight acquired defendants of the companies, having title. lease certain oil acquired August Meadows, 1933 all drilled leases afterwards landowners, of the gas of all producing owners well half on the west section, of the mineral interests half of the each not on of the NW%, Royal- section, including Trinity whole Trinity which the Royalty Com- ty Company, pany into two entered owned contracts the mineral servitude. There Meadows, lease with one F. F. one con- was no drilling done under lease cover- ing Wy2 Ey2 covering all of of the sec- of the That section. lease was kept covering tion and the other contract all of in force payment delay of the Ey2 rentals of the 120-acre expiration section. Of the until it terminated Trinity primary of the Royalty Company tract which the of the term lease. On 23, 1940, interest, March the one-half mineral owned two- the landowner sued cancel area, the mineral servitude being Trinity thirds of the N% Royalty section, Company ground on the of the was of course that it NW^ was extinguished by by covered the lease on the the west half of of years, section, not area, so far it being the one-third the affected the and of Ey2 in section, acres the section, being of the the the of of the was NE}4 NW% the the thereof, of by Ey2 the but also covered the lease on of the sec- NW14 NE14 so far as it affected Wy2 the 80 acres in of the the tion. one contracts of lease Each section, of being the the of stipulation all the contained that of the N% NWÍ4 parties pooled their mineral interests for thereof. The court held that drilling the purpose operations developing the the half-sec- section, the of the on W% royal- unit, tion as a and to receive provisions lease, the of the contract of in- produced any oil gas ties from from terrupted years prescription the 10 and part any half-section the covered the thereby prevented the loss Trinity of the lease, proportion respec- in which the their Royalty Company’s servitude on the 80 rights mineral bore to section, tive the mineral acres in the of the notwith- W% standing half-section, drilling operations the rights in all of that and that that operations drilling any part conducted on half the section w.ere not conducted on should the half-section be 80 acres the in considered as which the being parts Company on all Trinity Royalty conducted of that owned half- the one- interest, mineral servitude. cated the western half that located

half mineral and supported the ruling the decision in eastern half the That [of section].” Horton, Robinson v. companion in a case. might argued It that state the 647, 919, the de- So.2d 197 La. Trinity ment that the the landowner 143, Hodges, 208 in Dobbins La. cision v. Royalty effect, Company, in divided the the decision So.2d Jack- company’s acreage lo servitude the into Company, No. son v. Hunt Oil lo cated in the half that western 156, 23 So.2d 31. 208 La. in the the section cated eastern half of Nesbitt, held, Spears v. But the court not the consistent article 656 of with Code, rights the operations that were con Civil which declares that drilling the that themselves, servitude, covering the lease considered under ducted W/z either interrupt prescrip susceptible division, not real or did not the section But, article, 657, years running against imaginary. in the next tion of 10 Trinity Code, that Civil is declared al mineral indivisible, Company though 40 acres of servitude be Royalty whole, section, being of the and must be established E% NWJ4 prevents part, advantage section, nothing and hence that for a of the NE]4 Trinity Royalty servitude from results servitude of whichN divided, susceptible it be of divi being on that tract was lost if Company 40-acre therefore, opin statement, of 10 for nonuse. sion. The Nesbitt, landowner Spears ion in that the decision, regard making this servitude, section, di the and the owner acres in the Ex/2 servitude, means, obviously, ac court stated 931.2 So.2d vided [197 654]: and 657 cording of the Civil to articles (plaintiff’s “When the land ances- owner and the the landowner owner title) [Trinity tor the defendant advantage “the result divided Company] the two leases executed ing There could be no from” the servitude. August dividing acreage af- objection, however, to the statement Trinity Company’s by the fected the landowner the owner the servi they in- they clearly indicated did servitude, by dividing divided the tude operations on either lease- tend imposed acreage it was into half of the af- either block section] [on in the western half and part.located land owner or the fect the in eastern part located the half of the other owners under the mineral [lease say par this because We the section. They in effect or block half-section]. dividing the company’s [Trinity ties concerned in matter of Royalty the divided Company’s] servitude, advantage acreage that lo- the into the of the 202 part the 200 servitude, acres which were the formed a the landowner of certainly acres, servitude, original there and on owner of the which Clark servitude; whereas, in the doctrine mineral in nothing so sacramental retained pre- Spears indivisibility operations as to v. Nesbitt drilling of servitudes any part “if it were not on of the 120 vent the conducted division a susceptible by agreement acres on which the mineral division” servitude was imposed originally parties case all In instant were conducted on concerned. part party sale another of the a to the half-section in which was not landowner July of the originally 80 acres Bordages made tract burdened Clark to servitude, or with the servitude were the mineral located. That it”, in difference advantage on the of the resulting “the from facts two cases distinguish does not land, between them in principle, divided acres of be- Spears cause in to Nesbitt selling v. Bordages, by drilling Clark Clark’s operations in rights mineral Bordages one-fourth conducted on half- his section covered the lease and re- 40 acres designated containing stipulation that drilling any part taining one-fourth of the fact that half-section 200 acres. But the should remaining drill- be considered as party ing that on any parts and all was not half- landowner section, part the instant distinguish transaction because a does the land bur- Nesbitt, Spears be- case dened with that of v. servitude was located instant case that cause the landowner half-section. According to the deci- advantage the division sions accepted the which we cited drilling operations response fact the division this suit. which were on the conducted advantage section, the servitude was though not on the W% N% had in- of the landowner no matter which thereof, had the same effect NWJ4 objecting, it was essential- because as if drilling operations terest had con- been landowner, in ly advantageous ducted on the sec- N% NWJ4 owners required one of the each Horton, tion. Robinson v. 197 La. develop 647; servitude thereafter So.2d Dobbins Hodges, v. La. acquired 26; re- 143, he the land So.2d Co., v. Hunt Oil Jackson prevent its 37, 588, tained the order No. 23 So.2d 31. years. prescription of

being by the lost The Toklan Corporation between the Another difference facts upon doctrine, relies which is well rec in Spears case and the facts instant ognized jurisprudence, that, in our where a instant Nesbitt case the upon mineral servitude created single drilling operations were continued on the sale of the 204 203 Sample land, is case by the first or v. Whitaker by the the owner of servitude, such which that a reserving the court the held the land selling and reduce right explore the as for is established to rights, one servitude possession or operations gas con- tract, drilling oil whole another, is indi- upon minerals in land of any part the land upon ducted visible, the Civil article according will 656 is established which the servitude that, prescription if servi- prevent of the hence extinguishment parts ex- all 10 servitudes are any and by prescription on tude tinguished one of two or suspended subject as servitude. of the land servitude, Cor- more co-owners the Toklan of such a cases cited 491, all necessarily suspended co- Giauque, 154 La. as to poration Lee v. are Whitaker, dis- La. owners of We have the servitude. 669; Sample 97 So. v. subject of in- disposed 38; Lumber cussed and Frost 722, Patton v. 135 So. 33; servitudes, 916, divisibility provided as So. Industries, La. Inc., 176 656, divisibility 491, the ad- article Co., 186 La. Muslow Oil Connell v. servitude, as vantage 763; Cox, 196 La. Oil Co. v. So. Ohio provided was in Norton, It 902; article 657.- Hodges v. 198 So. con- Sample the court Whitaker v. 8 So.2d 618. “coproprietors” mean- strued the as word not like cited are in the cases The facts coproprietors of the estate ing not advantage of where the case the instant predial due, which a servitude divided, it was as servitude was itself, coproprietors of the servitude rights so his mineral Clark the sale being and hence construed article as part of the land on they affected far applicable to a mineral servitude. So far was established. servitude Sample as the decision in Whitaker was v. applicable to mineral its ef- case of Lee v. example, the For destroyed been Act 232 of fect No. 669, is So. au 154 La. Giauque, ap- 1944. The doctrine of case is proposition merely for thority plicable instant to the this case case. reserved on rights are where question personal is whether servi- land the separate tracts more two or it”, tude, advantage resulting “the from many servitudes establish effect is divided, may ap- consent be tracts exer as there proval persons any having of all upon one of the tracts will cise matter, susceptible “if it be divi- being extinguished prevent pointed already out sion”. We tract, on that but not on landowner, in this case who was benefited, necessarily, by _ dividing noncontiguous tract of land. advantage resulting from the ac- where one of several co-owners of such cepted the advantage. a servitude on one and the same minor, land was a against prescrip- whom The decision in the case of Patton run, tion could not Frost Industries, Lumber 176 La. suspended as to all of the co-owners of the 147 So. that the owner of a mineral servitude. adversely, could affected so far as the liberative was con In the Hodges Norton, case of 200 v. cerned, by by the sale the landowner of 614, 618, La. 8 So.2d the owners a parts numerous small of the land burdened of containing land 440 acres, namely, Ed- with the servitude. The doctrine of that Hodges wife, mond W. Augusta his and case simply is that the owner of a tract Ann Hodges, sold the land to Andrew of land with mineral burdened a servitude Hodges, reserving to themselves one- J. cannot do anything to lessen the value of oil, half interest gás in the and other the to its owner without con his minerals in and under the land. There- sent. after Hodges Edmond W. was died and by Augusta survived his widow Ann

Connell Company, v. Oil Muslow Hodges, and their 186 10 children. The miner- authority La. 172 is So. al proposition the interests in the land were then owned that, where own by ers one-half Hodges rights the mineral in Andrew and the tract of a land J. other by one-half possession Augusta were Ann in Mrs. their mineral servi children; Hodges by tude her 10 and and the land operating producing a oil well on part by a itself was purchaser Hodges. owned Andrew J. part He Augusta not, by Hodges of the tract of land Mrs. Ann and and her could 10 means of children leased the 440 possession his acres of the surface of part oil, his to production than R. D. Webb for the years, the land for more 10 acquire gas by prescription acquirendi title and other minerals. Thereafter Mrs. Augusta Hodges rights causa to the mineral in the Ann her 10 children possessed purchased sold Selby, Jr., the land to A. an undivided one- J. application him. That decision has to fourth no mineral interest in the 440 days the instant case. Selby acres of land. Two later sold Norton, to R. W. whom the defend- Cox, In the case of Ohio Oil Co. v. title, acquired in ants the suit the one- merely the court So. fourth in minerals repeated Sample holding Selby of the 440 acres and acres retained Whitaker, that article 802 of the Civil mineral his one-fourth interest in the re- applicable personal servitude, Code servitude, maining Thereafter and hence mineral acres. several conveyed acres whole 440 the terest drilled under were producing wells In the original mineral servitude. Hodges Ann Augusta lease which Mrs. joint no such owner- there was J.'Hodges instant case Andrew her 10 children and ship rights by Clark and the mineral wells These Webb. granted had R. D. Corporation. Rdyalty 220 the Toklan part of any drilled not on W. mineral for Mrs. Fannie Selby sold the Counsel acres which rely 220 acres upon Civil remaining Bond article 798 Norton that, if provides one-fourth which the owner Selby retained which interest, Augusta enjoyed less ex Mrs. in which a servitude given is children owned than him her 10 tensive Hodges Ann interest, and title, its whatever be his also one-fourth pre one- nature, Hodges owned reduced to that in which Andrew J. during than ten possession interest. More served use half mineral having prescription. necessary by, and Norton to establish gone time years having course, landowner, article, sued be con That died, Hodges, A. J. rule, Norton, to de- daughter so conflict strued widow extinguished jurisprudence, which is established clare mineral servi far that where the owner of a affected prescription, so exercises single which tude acres on a tract of land acres included drilling part of the right by Selby Norton one-fourth had sold to defendants, suspends prescription widow of the servi land he The mineral interest. when, Norton, pleaded But, W. tude daughter of R. all of the tract. as prescription sus- was case, that the as in of such a servi successfully the owner this respect one-fourth pended the his intention or abandons with tude disavows 220 acres specified part in the upon of Norton his of right to drill mineral interest operations drilling con- by he the the the tract on owns mineral of Selby in which servitude, applicable. 220 the acres article 798 is such on ducted case, harmony in- the his one-fourth the with had article retained with is reconcilable The decision article 803 of the paragraph second of terest. instant case Civil the rendered Code. judgment by Royalty Corporation, Toklan against the judg Our conclusion is that the Norton, Mrs. Hodges v. fact that the from, appealed so far it ment declares children, her 10 Hodges and Ann Augusta of that the mineral interest the Toklan landowner, the were co-lessors who Corporation in 40 the acres form the lease under 21, Hodges, of Section 23 Andrew of T. ing NE]4 the SE]4 J. W., extinguished by operations con- 8 has been N., were R. the drilling years, 10 of prescription in- correct. ducted, one-fourth retained 210 pro September 1, parties to this L. A. Davis Two 1933. E. and G. Davis, namely, A. L. E. and contend that ceeding, G. these were simulations. sales declaring judgment extensively, The appealing from the court received evidence evidence, mineral servitude on the both documentary their on and oral SE14 by the question lost simulation, of Section was concluded NE]4 liberandi causa. that the genuine. There no sales owner of good Mrs. W. Bond was the reason taking judge Fannie issue with the 40-acre at the when tract time fact; on that conse- conclusion the” years expired got the benefit and therefore quence of which is that became con prescription. separate property of Mrs. W. Fannie sisting a one-half mineral by Bond of the sale her made virtue acres, R. P. was sold Bond to husband to his made father and the sale $3,000, April A. L. E. and G. Davis for by the latter to Mrs. Bond. Fannie W. 2, 1921, R. P. Bond when the 40 owned judge opinion upon But the also rested his acres. The well on last was Code, which, article Civil March abandoned on 1929. Hence amended Act No. 170 of 1912 and Act was is conceded that lost No. 186 provides when title L. prescrip E. and G. A. Davis unless community property stands of record suspended. tion They contend that name wife it cannot be mort- suspended when L. gaged or sold the husband without J. Bond, Bond, husband Fannie W. written authority or consent of the wife. pooled signed the lease in favor of the That article as amended has been construed S, Company April Ohio Oil 1937. At mean the husband cannot alienate that time the Section SE]4 NE]4 or otherwise property encumber 21 stood of record the name of Mrs. the authority transaction without or con- Bond, Fannie wife W. L. Bond. J. Bywater Enderle, sent of wife. that, L. A. E. and G. Davis claim not 118. So. We adhere to that withstanding the title the land stood interpretation statute and hence Bond, in the name Mrs. Fannie W. judgment affirm L. Bond could J. belonged land actually to the matrimonial not, pooled by signing lease in favor community existing between her and L. J. Company April of the Ohio Oil Bond, signing pool and hence that his authority consent, wife’s without his ing agreement had the effect as if same prescription, the term of extend and there- appears title his stood in name. It burden of the servitude by of increase father, L. Bond sold land to his R. P. J. G. A. Davis on land L. E. and of Bond, 1, 1933, May on and that the latter Fannie Bond. sold land Mrs. W. on Mrs. W. Fannie Bond disposing hus when and her said Mrs. Fannie W. Bond

What we have signed which L. E. and band unitization pooling and mineral servitude agreement, which G. A. Davis had the mineral NE]4 on SEJ4 ap acquired an Miller from L. applicable also to and of Section Beene had -is J. 9, 1921, parties to this peal July Bond on on the by two taken NWJ4 SV2 21, lost namely, Miller Claud of had been proceeding, C. E. of Section NE]4 prescription. drill Beene, producing on the The last well mineral servitude whose that 20 abandoned ed on acres was described NE]4 acres NWJ4 S% fact adjudged extinguished January February 1929. Section was Beene, acquir and Beene it is conceded Miller and prescription. Miller in this reference to their mineral mineral a one-fourth ed 1921, years 9, prescriptive period commenced from L. the 10 July 20-acre on tract J. 22, the 20 March 1929. Our con the owner of not later than Bond, then who was urged declaring judgment Beene clusion is that Miller and land. acres prescrip on the S plea of the Miller Beene defenses to the same and G. A. by L. E. urged Section that were tion NW% NEJ4 by prescription available is correct. lost These defenses Davis. L. more than Miller and Beene appeal judgment An Beene Miller and A. Davis.

E. G. taken also rendered this case was pre plea of urge further defense to Bond, individually and tutor N. J. Mrs. April scription that on children, by the widow and minor L. husband her Bond and W. Fannie appellants J. E. These con of R. Bond. heirs con unitization pooling and signed a Bond extinguish which tend that Com Oil Ohio that the which recited mineral which servitudes ed several various leases owner was the pany by prescription inured adjudged lost were of Section affecting the W% NE1/^ of all of the five children to the benefit made a were of lease 21, which contracts appellants, Bond, including these R. P. con unitization pooling of Mrs. exclusively the benefit and- by refer incorporated therein tract and Bertha Bond and Mrs. W. Bond Fannie and Beene by Miller is contended It ence. were, respectively, Kirkpatrick, who unitiza pooling and signing of relieved the lands owners of W. Bond and Fannie by Mrs. tion contract at of the servitudes Bond, April husband, L. ap expired. The her time when the J. lease by her of in the one-half ratification refer pellants Gladney signed by formerly her owned had -been terest contract of Section answer April 1937. Kendrick NE]4 husband NEJ4 interest of L. 5, 1942, 21, one-half April and the is that contention to that 214 213 by the the land in which E. A. in the. of kind an instrument in G. Davis and SE^ section, one- of outstanding same and the no mention the of the was made NE*4 by but, formerly rights; thereafter, fourth owned mineral five mineral interest the signed in ex Royalty Corporation amending the the children an act Toklan declaring The plaining by 21. partition of of Section the act of the SE% NE% itself, , 30 of forming only acres the land the north it was made for sole and by tract, purpose owned Mrs. rights, partitioning this 80-acre was of the surface Kirkpatrick, forming the and the land that it was their intention not divide and by Fannie royalty south 50 Mrs. the five acres owned interest. Thereafter the Bond, roy W. the time when the servitudes children of R. P. Bond shared in the at prescription. produced The extinguished by paid alties the for the oil from judge the producing. the district court sustained The of wells were then production contention Mrs. Fannie W. and of Bond of oil the from 40-acre tract Kirkpatrick Mrs. Bertha Bond rights which all of the mineral had been by their benefit rea Bond, inured to production sold R. P. and the being, respectively, son the owners tract, of their from adjoining owned 40-acre years of when the 10 land at the time Bond, Mrs. Fannie W. than ceased more expired. appel which these ago; facts as a of result which a one- tutor, lants, Bond, individually and N. by' Gladney half owned mineral interest J. Bond, and of R. E. the widow and heirs NEj4, Kendrick in of the NE14 prescription of that the base their claim the one-half mineral interest L. E. and inured the benefit Davis, these servitudes G. A. and the one-fourth mineral Bond, including the of R. P. heirs Royalty five Corporation, interest of the Toklan Bond, appellants, follows: R. P. are as pre of Section SE^4 NE1/^ acres, land, made being the owner of At that time the scribed. title the north interests in the sales mineral numerous of the 80 acres of acres was in land until portions the land he had Kirkpatrick, different Mrs. and the title the south rights of mineral disposed all his Bond, acres in Mrs. Fannie W. forming partition acres virtue of act of which had NE^ NE14 one-fourth min 21 and all argument Section ap been amended. The of the SW%, others, pellants, eral interest N. Bond W% is that the E% J. 21. of Section act, amending declaring clause in S% NE^ SE-^ P. Bond R. donated parties Thereafter to be intention not to divide five children a deed his royalty indivisión interest but to divide previous no reference his made ways; worked surface of both in the land. five interests all heirs thereafter that as sales of . royalties producing partitioned shared children years later the Four district in the benefit court that its one-fourth also they wells should share SEj4 Section and interest resulting to Mrs. Fannie W. Bond NE}4 West, North, Township Range 8 Kirkpatrick, prescription of by the Mrs. Kendrick, Parish, Gladney Claiborne has been lost the servitudes of Davis, years liberandi causa. A. and of the of ten of L. E. and G. sale, Corporation. agree July Its stem from the Toklan We court that Bond C. Clark judge with the made R. P. to S. district nothing there in the amendment of of a one-fourth mineral SWi/4, SEJ4, partition justify act of the conclusion of of of W% E% Si/2 parties NEj4, that intention of the 21. After trans- all in Section that acquired Bordages the law R. from deviate from action I. one extinguishment rights a mineral servitude mineral of Clark his entire one-fourth (that of the prescription, to the benefit of Section 21 inures in the of SEJ4 NEJ4 and, of the ex presently consideration); owner of the land at the time under why piration years. Royalty The reason conveyances, the Toklan mesne extinguishment Corporation the servitude inures obtained such from when of the land at the time Bordages. to the owner extinguished that the servitude is is All of the lands Clark’s affected obligation burden a servitude is purchase contiguous. More- Bond are only upon upon imposed and not over, producing in wells drilled obligation any person; that when the so completed Buckrange to and in the Sand extinguishment extinguished the of it quarter-quarter prop- on each section of the of the land necessarily inures to owner erty, except comprising the two the E% extinguishment. Mc at the time SWJ4; year in some of Richard, So.2d Donald v. wells, particularly those located 712. Wy2 SE^, producing. were still There judgment appealed from is affirm- The however, production, was no on the SEJ4 proceeding concursus The costs this ed. NEj4 (that Royalty in which Toklan deposited of the fund paid to be out Corporation acquired rights) after registry court the Ohio in particular that the wells on tract hav- Company. Oil ing in 1929 previously. been abandoned appellant, It is the contention of Toklan HAMITER, (concurring). Justice Royalty Corporation, the sale from Corporation, Toklan one The P. servitude; R. Bond to Clark created a interpleader appellants proceed- indivisible, this that the' servitude was since it ing, assigns holding to the contiguous lands; that, error of the embraced indivisibility, production recognized by (Article our 646), of its Civil Code view SEj4 person Section attached upon for whose ofW% of benefit it to the benefit of the transferees is established. It of three inured interruption usufruct, operated an sorts: use and habitation. Clark and servitude, in- entire as to Notwithstanding that the mineral ser- appellant’s mineral interest cluding vitude personal has been unto a likened Section 21. SEi/2 NE14 servitude, the articles Civil Code jurisprudence is to the dealing that classification seldom have provisions employed by effect been that under court in determining interests; re- provisions mineral servitude Revised Civil Code a relating with a reservation recognized kind, sults from a of land to the predial sale from a of a mineral interest therein or or real servitude which is established on conveyance a mineral by the landowner of one estate, estate for the benefit of another frequently With that conclusion applied. his land. Application been complete disagreement. myself I find provisions, of the latter found under Title personal Only two kinds of servitudes—the IV of Book II which “Of Predial treats predial provided and the for in the Servitudes or of Land”, Servitudes —are shown, justified Civil it is as hereinafter been apparently ground on the my personal individual belief that the articles declaratory of that title are principles neither is mentioned general created trans- of respecting rights. real However, jurisprudence, Thus, Sample Whitaker, actions. Jr., al., et decisions, long 722, 38, 40, established a 172 135 line La. So. Article 802 was property, recognize applied, I 656, rule and shall 657, well as 783, as Articles respect changed by Legis- it until 790, and 789 observing: and the court “While lature, through adoption Code, either of a Article 802 Civil relative to the code, very is much needed suspension where the ser- state, or this otherwise. majors minors, vitude is owned both and among found those articles is Code conveyance Since a reservation or servitudes, treating predial yet real or interest is made in favor of an provisions, plaintiffs, its as observed are (not in favor estate) individual anof it has merely declaratory general principle of a variously referred been this court as that, to the effect to an real indivisible personal servitude, creation or servitude, right where the or right personal of a real in the nature of suspended it applicable to is as to one servitude, right a real or of of the sort right, it joint owners sus- several personal is servitude, called usufruct. The being them, necessarily of the pended two kinds of as to all of and one servitudes

219 220 so, obligation right (Articles 656, So. 902 because an indivisible 802); Hodges v. part 614, exist in extinguished cannot La. and 8 So.2d 618 (Article Norton, part.” ; 656) Company of Standard Oil Louisiana Futrel, 215, v. 204 La. (ap- So.2d 65 Williams, 229, In Ford v. 189 La. 179 So. plying Sample the doctrine of Whitaker, v. 298, it was is a mineral servitude held that al., Williams, Jr., supra). et and Ford v. heritable, relying on citing the court and al., supra, Sample Whitaker, Jr., v. et Citing relying Sample v. Whitak- refusing provision to follow the of Civil er, Jr., al., Cox, et Company Ohio Oil v. 646, Code Article “Personal servitudes al., Hodges Norton, et all v. mentioned person are attached to those whose above, Royalty Corporation Toldan they established, benefit and terminate are maintains, quote from the brief its * * * ”; with his life refused to also it counsel, “that where a servitude is estab- 753, reading follow Civil Code Article upon lished continuous tract of one merely personal granted “When an indivisible servitude is created and expires individual, him, un- operation upon any part serves contrary expressly stipu- less the has been interrupt prescription of the servitude lated.” upon any portion Unques- thereof.” other tionably, on, which the decisions thus relied

Among the numerous other cases in correctly respective determined factual which mineral interests determined in presented, authority situations for the relating accordance with codal articles recognized general principle legal that a predial real are: servitudes Louisiana indivisible. Company Broussard, Petroleum v. 172 La.

613, 800, (Articles 1So. 796 to inclu- indivisibility of serv- source ; sive) v. Tensas Clark Delta Land Com- theory, pointed opin- itude out in the pany, La. (Articles So. 1 cases, Civil of the cited Arti- ions 656); Bremer v. North Central Texas (found governing cle 656 the title under Company, 185 (Ar- Oil La. 171 So. 75 predial servitudes), or real which reads: Superior 789); ticle Oil Producing Com- servitudes, rights of considered in “The Leckelt, pany v. 189 La. 181 So. 462 themselves, susceptible division, are not 741, inclusive, (Articles 738 to 793); impossible or imaginary. either real It is Fontenot, State v. La. 187 So. 66 upon an estate should have another Sample (applying doctrine of v. Whit- view, way, al., estate or of aker, Jr., Williams, et Ford v. su- ; Hightower Maritzky, pra) also 998, or (Articles 738, 740, 741, charged 195 So. be 792); part that an estate with a aof Cox, Company v. Ohio Oil 198 servitude. bemay (B, right co-owners C servitude thus D) of servitude a

“The use of hours; days entire, thus established is an indivisible or for certain limited to part right; for right, impossible and not it would each limited, be an entire it is enjoy part right a And right. of servitude. aof long as the dominant estate owned a servitude “From thence it follows jointly, re- can one of the co-owners piece a of is due in favor of existing acres, any part move earth from the 30 of it, parts and to all the of whole of to the con- his use servitude would parts, every it, land be sold in that if the so stitute a use the others. right using part a has the purchaser of (Italics ours.) in toto.” the servitude though right But even of servitude division, susceptible itself those is not among other contemplates, This article may advantage co-owners divide aof road situations, the establishment servitude. Civil Code Article 657 states: the benefit a estate for servient across a jointly two owned dominant estate right in- “Though the of servitude be subsequent division persons, more divisible, be and must for the established among its several estate of the dominant whole, part, nothing prevents and not division each owner After owners. advantage being resulting from it' from continuing privilege of to use the has the division; divided, susceptible if course, entirety. the use an Of road as as, example, right a cer- taking may be limited to certain of the servitude tain number of loads of earth from the each days But owner can hours. another, sending pasture land of or of road, possess an must entire to the a certain number of animals on the land because, part right, pointed not a of another.” article, physical out dividing provision codal This commences re- way impossibility. is an cognizing the preceding mandate of the con- words Article 656 that a servitude shall be for itself, susceptible sidered in divi- right, right, a whole an entire not for a sion. right. Then it authorizes a divid- Again, might there under arise advantage ing resulting from the A, article a situation where the owner of advantage servitude when is of the land, grants in 30 acres of favor of an ad- susceptible division, kind that such estate, joining acres of consisting right of taking as the a certain number of B, low, D, swampy land and owned C and from the land loads of earth of another. privilege removing (A’s) from his hypothetical with the above yards of continue property earth to be To used in filling Among case, suppose the dominant estate. those dominant estate owned kind, entitled each dial servitudes B, partitioned in the section and D is C EXTIN- specific ARE SERVITUDES receiving “HOW

of those co-owners GUISHED”, purpose. employing it; his entire 20- for the D sells of then acres Further, hypothetical of the time of the consideration the same at acre tract to X. each (in case. partition sale order particular may filling have dirt for his provides that: take 100 parcel agrees to of low B land) extinguished: “Servitudes are yards 10 acres the East earth from take a estate, agrees C to A’9 servient jjt :{? i{; sfc acres, and ten center amount from the like prescription nonusage “By resulting from rights) D’s (who X to all of succeeded required during of the servitude the time the west from agrees to take a like amount produce extinction.” to its agreement such an 10 acres. Would ijj iji iji ‡ Sfi Clearly be under would effective? agree- By According right “A to to Article provisions of Article 657. divided; nonusage right extinguished is not ment of servitude servitudes during years.” enjoying ten complete privilege of of the same Neither has there remains. servient estate case, hypothetical par- before a In the' on the burden been an increase of the estate, dominant if of the titioning (the amount yards earth only since right uses one of co-owners servitude) can be contemplated servitude, any part dirt removing from 30-acre tract. the whole removed from right has the estate he servient burden, agree- increasing the Instead of interrupts do, enjoyment the cur- of it his out, might ment, pointed as hereinafter year non-user rent of the ten of it. That possibly in a decrease result co-owners; for, respect all agreement is by the is divided “If the estate as stated in Article servitude, advantage resulting from be- established whose a servitude is favor number taking a certain right “the divided, never been longs several land of another.” earth from loads of prescription with enjoyment bars of one ad- an Article 657 Civil Code As said in respect to all.” susceptible divi- that kind vantage of partitioning the dominant But after the being divided. prevents its sion, nothing agree- estate, and after the execution certain articles now consider us Let earth the removal ment relative estate, relate to the loss areas of the servient designated Civil'Code co-owners, or his advan- of those who a servitude its each X, pre- including make respecting in title must successor .the title under tage, found him, use area allotted 799 and second particular paragraph of Article prescription will run on servi- 803: otherwise tude, so far advantage, in as well as its “799. right Use of incidental —Loss Support- allotted is concerned. area his rights. merely all enjoyed the owner has —If ing Civil Code Article this statement is accessory necessary an right, which was part: reading in will con- he not be sidered as having used his of servi- Prescrip-

“Partition of dominant estate— tude. the servi- tion.—When estate to which undivided, by

tude due to be ceases example, “For if who has he a who partition, means of each of those of water drawing from the well his of only coproprietors, preserves the were the neighbor, passed through has often it, servitude the use he makes of and latter, land of the gone well and to the non-usage during the others lose it drawing any without water the time during required prescription. time required for prescription, lost he will have right his drawing acquir- of water without >3 ‡ ;ji j}: ing that merely passage, of which was year prescription And the ten non-user if accessory right to drawing of water.” permitted is accrue on the de- to of % jfs ‡ ‡ # signated areas, the to extent servitude portion “.803. extinguished; of that unused is and it is reduced has to which been a persons, “If servitude be due several to preserved, by enjoyment of the right there- days, different right of draw-

by afforded, accruing prescrip- from the of wa+er, ing he who does not his exercise * * * 798, quote tion. To “If right, it, subject loses and estate enjoyed owner has a less ex- it, servitude respects becomes from as free given title, tensive him than is the him.” servitude, nature, whatever be its is reduced Testing appellant, claim Toklan preserved is by possession Royalty Corporation, by analysis the above during pre- the time necessary to establish articles, codal appears mentioned it scription.” a that mineral servitude was created 3, 1921,

Dealing applied July Bond, sale from R. P. landowner, servitude draw water from to S. C. Clark of a one- well, a perhaps SWJ4, significance much interest in the fourth E% appeal NE%, here since the instant Wy2 all involves of SE in Sec- % S% wells, purchased oil from drawing of are the Clark following What was a tion 21. provisions right, right, an to take found in Civil entire one- Code Article whole It de- is on Bond’s received thus

fourth of the minerals Bordages Toklan land; acquire one- the instant claim of scribed he did founded, appellant Corporation to take impossibility) (an of a fourth having acquired, by conveyances, Clark v. mesne said in such minerals. As was 913, Bordages’ Company, one-fourth mineral Land Delta Tensas 2, “According to article 656 to said of Section 21. So. SE^ NE^ per- possible for it a the Civil Admittedly, enjoyment no there has been part of a servitude on son to have extent of that 40- servitude land, although, person’s according another year acre tract since last advantages to article the benefits or well last thereon abandoned may be divided servitude resulting from a production However, continuous obtained. * * by employing paraphrase, To production to date been had on the has W% example Code Article in Civil given SEj4, 21, part of the con- of Section right (not a .possessed entire Clark an tiguous servitude which the Clark certain right) taking a number of a continu- was established. Because of such earth land of another. of loads of from the contiguity production ous appellant indivisibility property, invokes the thereafter, When, and as- Clark sold n theory of servitude that the and contends Bordages all of his signed to I. R. one- interrupted current been mineral interest in to the fourth SE% question. as to the 40 acres in NE)4 Section. new creatfed; merely involved shown, was not As before preserve (not part) entire in- used; transfer an it must be a lack of use is the basis corporeal right under by prescription; real losing it extin- Bond, land- the guished non-usage established sale from years. the its during ten Lane, owner, Deas v. to See S. C. Clark. Civil Code 789 and 3546. And Articles Neither was 202 La. 13 So.2d 270. right only when an entire a determinate divided; transfer servitude the part enjoyed used, Clark the of a servitude is thus advantage protecting pre- the from accruing effected a division of such scription, preserved to that which is By the the transaction Clark of the servitude. reduced. Civil Code servitude is Article taking of privilege himself divested of the Moreover, by the 798. reduction neces- minerals from the de- one-fourth sarily there results a corresponding de- acres, particularly described 40 signated and the burden on the servitude. crease right possession use along with his of tract; Bordages acquired that those Clark, of immediately S. C. his after ac- advantage the entire rights, Bond, landowner, servitude P. the quisition from R. enjoy right to advantage the extent of the mentioned area. had the of. the to the respecting His land affected. the servitude on all the SE*4 NE^ appellant. one- Section now such privilege withdrawing claimed was fourth But of the minerals therefrom My appeal conclusion on this is not at Bordages (Toklan selling assigning any variance final result of case Corporation’s title), with- author True, jurisprudence. our in some of whatever, one- any. his out reservation opinions broad, there has been used the fourth mineral interest in the SEt4 general language that a “mineral servitude NE)4 his relinquished of Section he and it indivisible must stand or fall as use, control possession a But whole”. an examination will reveal acres; under that and his every that suspen- decision that decreed extensive. servitude became less interruption sion or year ten non- transaction, obtained Bordages, by the prescription user indivisibility under the complete the servitude to control of theory was based on a factual situation he, area, extent 40-acre presenting the coproprietorship element of assigns, had and exclusive entire or co-ownership; in each case someone advantage (one-fourth enjoying the owned a fractional throughout ad- minerals) afforded. Such the whole servitude against pre- vantage enjoyed from 1922to was so scription pleaded. during period oil wells producing Thus there cases in applied which was occupied than property. But more Civil Code reading, among “If years advantage ten after .1929 coproprietors against there be one whom acres was respecting run, instance, can assigns (in- for. enjoyed Bordages or his minor, preserve cluding Royalty Corporation), he shall Toklan of all possible, extent the servi- Sample others.” Among these are v. extinguished by prescrip- tude has been Whitaker, Jr., al.; Fontenot; et State v. tion. Company Ohio Cox, Oil v. and Standard Company Futral, Oil supra. all cited production (continuous

The use date 'In each it was held that SEj4 21) made Section W% suspended by entire servitude was portion remaining servitude is legally incapacitated per- intervention unavailing Royalty Corporation. to Toklan son, him Clark, major as to and the both more than owners. For neither ten originally acquired legally who nor But it noted that the in- person, instance, any holding capacitated one title from him each owned of, remaining portion, throughout has been co-owner fractional interest whole in, servitude; held he was a interest whatever co-owner with the 232 231 n others, a was has granted tion once a that landowner Code Article and Civil mineral servitude on his land he can correctly applied. thereafter divide Norton, supra, which Hodges v. In interest, partitioning he has no a interruption concerned the land’s area. course this surface Of present by drilling operations, there sound, court, for, to pointed by the. out copro- mentioned element also the effect division the servitude co-ownership. The widow prietorship or manner servi- would a mineral be force Hodges owned and heirs of Edmond W. tude carry owner innumerable drill- entire throughout interest fractional operations ing keep servitude alive. servitude; ownership common their Obviously, these are not relevant cases rights in the owners of that of all other here. prescrip- decision that And the servitude. opera- drilling interrupted tion was entirely correct To it is not show that Article Code sustained Civil tions is is indi- say “a favor 801, whose reading: estate “If the visible, fall aas and it must stand or belongs to is established de- whole”, only analyze certain we need divided, the been servitudes, several and has never in which cisions of this court with bars enjoyment of one expression to use the of Civil said of respect That can to all.” 798, actually reduced to that presently con- under mineral servitude consider preserved. which was First we undivided an person owns No cases, sideration. both Sample v. Whitaker origi- the servitude throughout same transaction. of the out arose sale P. by the R. nally established 20, November of date single deed Bond to Clark. conveyed to 1911, Sample G. sold S. reservation Whitaker, I Jr., conclusion which York true

It is thereto, con holding in conflict with herein is reach all acres containing original hearing tinuous tract of of this court on Byrd 213 La. So. as the Forgotson, and described v. NEJ4 S% dissented; 5, Township' 13 SEj4, I Section 2d with which E% Parish, West, North, final DeSoto yet as the case is now Range is not decision By for a one mineral servi application rehear- this deed on an Louisiana. pending ing. entire acres was estab on the tude Later, Sample. York in favor lished of Patton v. Frost Lumber In- cases Whitaker, Whitaker, Jr., sold Isaac dustries, 176 La. So. Con- mentioning reservation, Company, 491, without Muslow Oil nell elapse for the simply proposi- (80 acres). After the stand So. S1/^ NEJ4 234 acquirendi the date years respecting causa Isaac ten the of more than Sample and rejected Whitaker 80-acre the creation the tract and the died in the (his having Samples. demands of wife The effect of his children decision, belonged to property obviously, that was meantime and reduce separate Sample in two estate) servitude—the servitude was community sued recognized the owners as established the entire acres actions be of con- acres, entire rights tiguous Sample, lands when S. G. No- the mineral 20, Whitaker, Jr., deed, vember 1911, by single in one York they impleading Whitaker, The other Isaac Whitaker. transferred the York and in the lands to suit, Jr., in which the defend- reserving all Isaac Whitaker of the minerals. prescription ten pleaded the ant had Similarly the decision Arent v. Hunter causa, the first to acquirendi was years al., 1059, 162, 171 La. 157, et 133 So. ef- court. 171 La. So. reach this fected a reduction of a servitude. Holding a mineral servitude can 511. McCormick, case Hunter and as owners in prescription extinguished thus be large land, granted fee aof remanded the case so that we evi- pleaded, Company Oil Producers’ a mineral lease plea. received on Subse- dence could be non-contiguous parcels on five of the land. Jr., suit, Whitaker, York quently, the in- Later, land; those fee sold the re- owners plea prescription of volving defendant’s serving unto themselves all of the mineral causa, was considered years ten liberandi therein, rights thus creating in their favor appeal. 172 135 So. us on single mineral servitude on the entire applied pro- (cited supra). The court Eventually, by .tract. numerous transac- as above Code visions Civil tions, plaintiff Arent became the owner of plea shown; it overruled defendant’s the land and also of all of the mineral to be prescription; it decreed therein, rights except those in and under full the servitude in force effect non-contiguous parcels the five covered Samples on be- favor of the the 80 acres Company the Producers’ Oil lease. ex- The Whitaker, it longing to York Therein Jr. cepted rights mineral were still owned was was said that indivisible McCormick; Hunter and all others had minority of some of the co- been renounced them sold to Arent. suspended prescription owners had as to non-contiguous parcels On one there majors and both the the minors. Less producing gas was obtained well. In his Sample year than a later the v. Isaac against Hunter and suit McCormick to (that previously action Whitaker re- declared owner manded) returned 174 La. 245, here. non-contiguous parcels, of the five in all hearing On court main-

So. 36. years’ prescription pleaded plea ten Arent ten tained the court, portion it, main- crued to one liberandi causa. parcels remainder, taining plea all was continued as to drilled, full except force. well that on which the January prior “Long observed: summarize, To reference to day which the Clark, claim appeal, involved in the instant interrupted, Hunter and McCormick Bond, who acquired the servitude from plaintiff, had sold or renounced to could not divide that he received. Arent, prior purchase the owner pointed As out above the right of servi- itself, all the tract of land tude, itself, susceptible considered in is not tract not rights on acres of the the 987.26 division; im- It indivisible. to the Producers’ grant included possible to transfer to another aof Company, which served connect Oil right. could But Clark and did divide the by separate land parcels covered five his of servitude. To advantage of Arent, Therefore, grant. when conveyed advantage Bordages he the entire owner owner became the of the also as to the the servitude SE% NE% thereon, resting of the the title servitude 21, ultimately acquired "which Section merged with title the latter became appellant,. Royalty by Toklan owned by extinguished and was former Corporation. Bordages, Thus or suc- Art. this confusion. 783. When Civ.Code complete right cessor, a full and had and McCormick owned occurred, Hunter possession the explore and reduce to place, ex- Seale no acres, the obli- the 40 minerals under cept par- noncontiguous the five those on course, distributing the gation, of by grant to the cels of land covered according to owner- minerals obtained Company. The servitude Producers’ Oil however, that ship Since, ad- thereof. noncontiguous parcels of upon the five enjoyed not for more than vantage was servitudes, distinct became five years, period during ten there that of the servitude one the exercise of the respect coproprietor to it no existed with withdrawing gas from parcels relationship its a legal- between owner and some drilled thereon nine well ly person any owning incapacitated one or before, an did constitute exercise not portion an used origi- of the interest upon four noncontiguous advantage nal lost been ” * * * parcels. prescription and the servitude to that Nesbitt, 931, Spears v. Again reduced, 197 extinguished just La. extent as 650, this effected a reduction 2 So.2d th'e This con- was held district court. servitude, holding pre- supported pro- of a not clusion scription, of non-usage, because had by logic. ac- Civil but visions of the also 237 238 susceptible “are Clearly division, hold real unreasonable to either it would be * * 656; person imaginary that the who or Lee efforts status 491, 669; Giauque, in the v. without whatever La. So. Patton interrupt Inc., v. advantage Industries, can Frost La. Lumber suspend 33; 916, the current Oil So. Connell Muslow v. Co., 763; advantage. 186 La. Oil 491, So. Ohio 902; Cox, Company 193, v. 196 La. 198 So. For I foregoing reasons concur in the Hodges 614, Norton, 618. v. 200 La. 8 So.2d appeal decree rendered on the Tok- nonusage extinguished “is Also, Royalty Corporation. lan I concur in years” during (Articles same ten respects appeals as it decree the other 3546; 789, Lumber Co. v. Frost-Johnson interpleader proceeding. this 207; Heirs, Salling’s 756, 150 La. 91 So. Nabors & Oil Oil Gas Co. v. Louisiana FOURNET, (concurring). Justice 765; Refining Company, 361, 151 La. 91 So. I do support- not subscribe to the reasons Wemple Co., v. Nabors &Oil Gas 154 La. ing portion majority opinion of the 483, 666), among “If So. the co- treating Toldan proprietors so-called against pre- there be whom one Corporation mineral interest. scription can run, for instance minor, preserve he shall of all pointed out As the writer in the case others.” Article Sample v. Byrd Forgotson, Whitaker, 172 La. (though 135 So. So.2d “When oil first discov- jurisprudence article and there- ered in this state and the interests of those superseded by under has since been Act asserting rights therein became contro- 1944). No. 232 of versial, the courts decreed the sale of a mineral was nothing more than the It is difficult for tome follow the rea- granting a privilege go to upon soning the majority opinion in to effect the exploration the for exploitation land although a servitude is indivisible purposes, being classified such a any the drilling part of the affected the nature applied thereby preserves the (Lee whole servitude provisions of the Civil Revised Code 491, 669; Sample 97 Giauque, 154 La. So. v. relative to servitudes determining Whitaker, 38; 135 172 La. So. Pat- v. rights claiming of those such an interest.” Industries, Inc., Lumber 176 ton v. Frost 33; So. Connell v. 147 Muslow La.

According the Revised Civil to a 763; Co., La. 172 So. 186 Ohio Oil only by be created the owner servitude can 902; Cox, 196 La. 198 So. 729; Oil Co. v. Hodges v. of the land. Nor- La. Norton, 614, 8 So.2d rights 618. ton, Hodges So.2d Such v. wise, Selby conveyed when Norton 618), advantages flowing therefrom are a to minerals in susceptible that one-fourth in the of division and nevertheless tract, under 220 acres the servitude acquires portion a servitude who one not been was not of the servi- affecting a area that has divided and exercise surface any portion preserved developed ten-year period, even tude the land within the though development the re- it as the whole.” had on to was rights thereof, maining portion loses his majority In opinion it is stated by prescription. judg- this decision with the is reconcilable “by ment rendered in case the instant equally It for me reconcile difficult Norton, Mrs. Au- Hodges that in v. fact the decision holding case with this children, Hodges Ann gusta her Norton, 200 La. Hodges court in landowner, who were co-lessors with 618, 621, squarely 614, 8 we So.2d where Hodges, Andrew the lease under by Selby J. conveyance that the Nor- held operations drilling con- to 220 of a mineral interest ton ducted, retained a one-fourth in- Selby acquired by acres 480-acre conveyed by terest in the whole 440 acres dividing have the effect did original in- mineral servitude. portion drilling on a servitude and that the joint there stant case no such owner- was conveyed part other than the thereof ship rights of the mineral Clark and year prescriptive Norton within the Royalty Corporation.” the Toldan preserved whole servitude period al- elapsed more than 10 though had It is fact difficult me see how original since the servitude created. was Hodges that Mrs. and her children specifically: In that most case the said title) retained an (Selby’s authors in in- upon the servitude was “The land terest entire servitude would have one tract. There established is continuous acquired preserving the effect of one but indivisible servitude and Norton, not that for it fact that mere fact that owners con- of interrupting prescrip- the effect had veyed undivided interests running instead the fact tion then the effect of dividing others did the servitude was indivisible and ex- * * * reason this is that it. the drilling ercise can be created thereof, portion although not on that Therefore, acquired of the land. when owner affected the interest Norton, preserving had the E. effect of Hodges and children of W. con- widow to the whole. servitude as veyed undivided one-fourth an interest in Selby, minerals servitude cover- vhe can I find basis for Nor the state- ing opinion the entire majority land remained intact. Like- ment in that “The al., Spears lease, e., decision v. Nesbitt et 197 of the according i. to their interest precedent La. for appears So.2d it proportion entire case,” (meaning instant in the holding acreage, regardless whether or majority opinion here), is also the hold- not the well is property on the affected ing companion case of Robinson v. servitudes,” their declaring, “They have Horton, 647, 648, contracted; 197 La. they So.2d are bound con- their reading tract; mere of these cases show question will whether the divisibility servitudes, servitude was owned in these defendants at in either ex- issue of them and two cases at the time confection of pression quoted Spears contract, reliance from were actually used by drilling merely case explaining was the is used immaterial(Italics mine.) parties intention of the in that case in However, majority since a pooling a unitization contract executing in applying the second paragraph of Ar- development all of their pur- interests for ticle 803 of the Revised Civil Code have poses. same, construed the when read in connec- tion with other articles of any Nor is there basis statement mean that though even that it was held in the in- Robinson case that divisible, nevertheless the advantages against Trin- running flow may therefrom be ity Company’s lying divided the west- owner thereof and ern that so portion half divided a the section interrupted was not developed prescribes in operations years, ten drilling I portion on another am concurring in the results reached for land affected by the lease. theOn the reason that in granting a rehearing contrary, specifically we stated Byrd in the case of Forgotson, necessary pass question on that because 34 So.2d 777 handed down on we maintained the contention of the de- February 19, 1945, where this is- identical fendants that plaintiff “since the entered sue was raised and the contrary, decided to joint them, into a lease with pooling her agreed it was rehearing that a would be mineral interests specifi- with theirs and up held in the instant pending case a de- cally agreeing that each should receive Byrd cision in the on rehearing case so pro royalty rata share of the might litigants as to afford to all portion due from ir- parties might be who interested the mat- respective of where the gas oil or ter, present opportunity an their views found, they are entitled their share of to the court. royalty produced out of the due oil plaintiff’s property respectfully under the For reasons I terms these concur. Rehearing acquired eral interests desig- On him ain particular nated portion and of the tract HAWTHORNE, Justice original grant covered grant, which by the landowner, course, created the claims involved case Originally this servitude. proceeds a one- parties to the of several by the produced royalty eighth in certain oil Application for rehearing pending was Company of land a tract Byrd Ohio Oil in' the present case at the time Parish, in was and Claiborne argued in situated case was submitted this On proceeding. a concursus nature court. Both being then cases before adjudicated court court, this February careful consideration given was suit, in this claimants rights of all each. original Thereafter our opinion and ap- rehearing to all refused decree was case, thereafter rendered in the instant Royalty Corpora- and at except Toklan plicants granted' time a rehearing was in granted. Byrd case tion, rehearing was it a as to reason that result reached in the decision in the instant judg- we hearing affirmed original On case was diametrically opposite to that decreed that court which lower ment of the in reached the decision ren- theretofore Corporation’s one- Royalty -Toklan in Byrd dered case. 40-acre tract in a fourth court, This realizing that the decision to extinguished by the had been be rendered in each of these two cases is causa.' years liberandi prescription of importance vast for the reason that each regulate will valuable property rights in 19, 1945, court handed this February On state, this in granted appli- due course Byrd al. et in case opinion an down cation for rehearing of the Toklan al., 276, 34 777. 213 La. So.2d et Forgotson Corporation, so litigants that all parties applied in the be of law to principles interested, pointed as out Fournet Justice Company in the Oil case Byrd Ohio case in his concurring opinion case, in the Ohio same, are identical, issues and the might have an opportunity present their Byrd question case the .except views to the Accordingly court. both cases of the servitude whether argued and submitted on rehearing minority one of the by the suspended time, at the same 7, 1947, on October owners, while the Ohio case now both are before the court for decision. is whether question serv- interrupted by the exercise of the dispute is no as to itude There the facts out by one of the servitude owners. Toklan Royalty claim of of which Cor- arises, and, original poration case mineral owner they each as have been original completely forth our opinion, set divested himself title to all the min- had reiterating set- necessity right, true of a mineral and that this there is no again. consistently has ting out in detail held mineral them servitudes, rights in real the nature of Toklan supporting the claim Counsel subject by may analogy as near be to ori- that our Royalty Corporation contend provisions relating of the Civil Code case con- ginal decree rendered this servitudes; or, predial to real stated jurisprudence of trary to the established language in the exact used one state and violence does briefs, quarter as follows: “For a provides Civil the Revised more, century and this Court consis- servitudes, considered rights of that .the tently held that the sale or reservation of susceptible themselves, are not divi- to, right, analogous creates real minerals or, sion, imaginary; real or stated either or, frequently Court, as so said differently, argue that counsel somewhat the nature of a And during servitude. that judgment of affirming the the decree developed time it has and extended that Royal- court, Toklan to the effect that lower doctrine, by analogical application of lost ty Corporation had its one-fourth provisions those of the Civil Code which 40-acre mineral interest predial servitudes, relate to real or and it years, non-usage period a for of divided has refused to attribute right, to this real They argument base their the servitude. servitude, the nature of-a those character- that the fact there was but one servitude istics, which are essential or attributes established, landowner, that R. P. personal characteristics of servitudes.” Bond, covering the to S. C. Clark tract of We now a come to consideration of the that, acres, so, and this bein'g contend various articles the Code they of insofar as holding our that Clark’s use on 200 acres may applicable pertinent be and to the (there servitude) being only one did not issues here involved. enure to the benefit of Toklan IV, Corporation, servitude, Title co-owner Under which predial a of deals with servitudes or servitudes divided the of servitude. we find Articles 656 and which read as follows: rights Counsel brief that mineral state servitudes, The “Art. 656. con- personal in Louisiana neither are servitudes themselves, susceptible not are sidered nor real servitudes within strict defini- division, imaginary. real or either It point out and tions upon an estate should impossible that true for the personal this is reason that a right part a way, another estate or servitude terminates with the death of its right view, predial owner a beneficial and servitude charged be estate with that an a established for the benefit and also of an estate, neither servitude. being part these characteristics of a may it, right the use he makes of

“The of servitude servitude use hours; nonusage thus days it during but others lose limited to certain limited, required right, prescription. for is an time it entire right. of a persons, “If a be due to several servitude days, right different of draw- a servitude thence follows “From water, ing who he does not exercise land, is due existing piece favor of subject it, right, loses and the estate it, parts of it, to all the whole it, re- the servitude becomes free every parts, be sold- so that if the land spects him.” right using purchaser part has the servitude in toto.” We concede that dominant ser estates, vient necessary which are for the for which If the estate “Art. 776. servitudes, predial establishment established, to be comes servitude has been necessary jurisprudence under our each due for divided, remains the establishment of servitudes. burden portion, that no additional provided However, ap consistently is sub- which thereby to estate accrue plied Article to mineral servitudes ject servitude. to the provides is extin instance, “Thus, in case guished by non-usage during of the same to exer- are bound passage, all the owners years, provides place.” same through the cise that, if the estate in favor the servi whose prescription of pertinent articles belongs tude established several divided, are found in enjoyment an indivisible servitude has never been as follows: respect and are all. same title one bars Both of articles these are found under servitude is extin- A “Art. 789. predial dealing with servi- title of our Code nonusage during of the same guished by the tudes, must, contemplate, both as they and years.” ten estate; yet, a servient and a dominant not- the estate in whose favor If “Art. 801. fact, withstanding this both have been belongs to is established the servitude applicable servitudes, made to mineral as divided, been has never the and several hereinabove, they stated have been bars enjoyment of one with applied, by counsel, out pointed as all.” respect analogy may problems and as be to near arising When estate to in connection with servi- “Art. 803. the which the undivided, by be tudes. due ceases to servitude partition, of a each of those opinion who

means In our Clark’s sale all of the of coproprietors, preserves only particular were the the mineral interests he a owned divided, analogous to portion tract is original of the been the it is estate the estate due has the of been divided. division dominant the portion us determine it. Let of of sale How does this division of the es- of the dominant effect a division what dominant estate affect indivisibility of would have on the tate servitude? It is clear Article 801 under it, favor of existing prior that, servitude estate, to the division the ex of servitude. prescription of right that the ercise of the passage by of B either or bar prescription C would as to the other. provisions Applying It is likewise under clear Article 803 that A, quoted articles, assume let us after the division estate dominant estate, has established owner servient Buse makes of will servitude not passage in favor of the domi servitude preserve C, the servitude toas or vice estate, B and in indivisión owned nant versa. B does right If not exercise estate equally B C divide C. passage, portion he loses it for his established. favor servitude was whose the dominant estate. This is true not be clear that servi Article it is Linder cause the servitude was be divided but right passage due or remains tude cause divided, and, dominant estate B and portion of estate allotted to provisions under the plain after portion for the allot remains likewise due division dominant estate each own C. ted to er has the burden preserving right How, exactly, has division of portion servitude to his of the es estate the servitude? dominant affected tate. passage, Obviously right the servitude It is true Article itself, has not been divided. considered applicable partition to a seem only be 656, B does not now Under Article estate, the owners of the dominant passage right right of C half a half a they language use the that “When the passage. has a Each still whole estate which ceases the servitude due However, portion passage. the area undivided, by partition” be means of B may from the estate exer- C and “If estate for which the servitude cise their has been limited established, has comes to been be divided”. estate, without division addi- However, opinion, our would il- accruing to tional burden’s es- servient logical say contemplates that the Code B may of A. now tate exercise his parts separate owners of of the domi- portion only of the dominant preserve could nant estate servitude for owns, and may which he C exercise estate parts each if estate was other sold in portion from that preserve which he each it for but could partitioned by estate was owns. therefore if the dominant co-owners; difficult, in the what therefore effects two because the es- B, if the owner tates which predial case would obtain are assumed servi- for necessary estate, portion sold tudes to necessary dominant had for creation C. but also because predial servitudes are not sub- themselves case and assumed apply We now ject to rights alienation while mineral are. there- applicable our Code articles of Civil However, pointed hereinabove, out In'doing to, analogy, at bar. to the case applied has dealing articles with Bond, granted who it follows R. P. so predial servitudes, servitudes to mineral position of servitude, is in the the mineral among being these dealing Article 801 with estate, and A, servient owner of the a dominant undivided, estate where B, position of C. Clark is in S. enjoyment of prescrip- one-co-owner bars in favor estate owner the dominant tion respect all, to Article granted. I. R. servitude which the provides a right to servitude Corporation Royalty (Toklan Bordages extinguished by non-usage of the same position conveyances) is mesne during years. articles having These dominant estate part C, whom to applied been to mineral servitudes in no position of take sold. must Clark way except by other analogy, we there find selling his owner, act of the dominant precedent is full inus the case here Bordages all ac-. to under consideration apply, likewise area portion of 'the him on quired analogy, the paragraph first of Article analogous must be subject 803. applied, When this article is so it (cid:127) estate the dominant B’s sale that, Royal- naturally follows since Toklan was to what Clark did analogy, By to C. ty Corporation right, did not its exercise estate; not di- he did dominant divide prescribed by non-usage the servitude as to Bordages servitude, for Clark and vide the question, for the 40-acre exer- explore min- the whole still had cise acres which merely sale act of his Clark' erals. exercise Clark could could ex- could place each limited not enure the benefit Toklan Bordages, by right. Clark ercise Corporation purpose for the interrupting portions owners of analogy, became prescription. estate, each and it follows that dominant portion or readily preserve can be it must From this seen area, he loses under originally in this rendered case limited decree 803, Paragraph of the Civil hearing destroyed way Code. first no proposition that analogy concede the rule or We between the affected law case at assumed bar that a servitude indivisible. case is some- by words, divided Counsel in cases citing not these the servitude was rely expressions on statements and Bordages, found Clark’s and sale support Toklan Therein in in by that contention divided court’s decree their case, as, instance, this Corporation’s prescribed following for Royalty right had although remained statement from al. Giauque still Lee et v. Clark’s [154 (cid:127) 491, La. : opinion full force effect. So. “We are of and 670] upon exercise a con support our contention its tinuous tract of land servitude ex original is er- case- decree in this rendered tending preserved over whole roneous, Corporation re- Toklan servitude over the whole for the reason principally lies of Lee et al. the cases is there but servitude on one the whole 669; Giauque, v. 154 La. Pat- 491, 97 So. tract.” Inc., Industries, ton et al. v. Frost Lumber fully principle subscribe to 33; We of law al., et 176 La. Connell So. passage, principle as this al., but this Co., stated Inc., 186 La. v. Oil et Muslow application where 763; law has no the own- Hodges 172 So. et al. v. himself, er of al., by Norton 200 La. 8 So.2d 618. servitude et rights acquired from of all mineral sale cases, as others cited All well as of these designated area, in a limits landowner by counsel, ana- fully discussed place the area or on which he as well as opinion lyzed length in the ren- majority at his vendee may exercise the be- case, and original in this hearing dered analogous these cause facts to those opinion our on first the result reached in contemplated by Article Paragraph in conflict be hearing shown that article is ap- law therefore the holding earlier any of with the these plicable to these facts. opinion. are still of that cases. We et In- In Patton al. Frost Lumber original example, as in our For stated Inc., al., court, supra, dustries, et Giauque, of Lee al. v. opinion, the case et * “* * plaintiffs contention discussing the set merely authority supra, supplemental ef- out their brief proposition that where issue there fect that the should sepa- involved two more reserved on rights are principle by expound- of law solved effect is to establish rate tracts ed in Articles of the Civil as are tracts of there servitudes many quoted we articles above (which Code upon one exercise and the applicable in the prevent to be instant will from and found tracts 916, 147 correctly said case), extinguished [176 being “* * * What articles these any noncontiguous : tract, not on but tract So. 36] persons that, if two or more who mean of land”. to which a an estate reservation found own indivisión was made. This court due, it has been that the servitude servitude or for was created not drain), of natural (such established as that reservation Lumber Indus- made Frost kind, partition each tries in same sale these two tracts its originally land, parts is still but Fed- due the minerals to its sale of But, par- after estate. eral Company, due the whole Petroleum and that Frost re- tition, proprietors can respective Lumber Industries its reservation did estate in- serve the servitude not intend to establish' will or both Either making protect use of it. tended to already the one estab- lished, time re- nonusage during the that, lose it since servitude own- .the quired prescription.” er produc- had exercised it by drilling ing gas 10-year period within the Industries Lumber In that case Frost creation, the date of the servitude’s of ap- land tract of owned continuous servitude in full force and effect. was still 12. 30,000 January acres. On proximately facts, Under these we think the court a min- convention it established correctly stated in that case that mani- There- the entire tract. eral servitude on festly these articles of the Code relied acquired plaintiff after, Patton upon by plaintiffs (Articles 803) 776 and Industries acres Lumber Frost application had no to the issue involved tract, plaintiff McLeod of this true, in the case. analogy This is Lumber In- conveyances from Frost mesne Frost Lumber at the time the Industries containing another acquired dustries position was was in created conveyances making the cov- In 40 acres. owner, of a servient land, vendor, and Federal Petrol- ering two tracts these Company position eum Industries, was all reserved Lumber Frost dominant own'er or the one whom the in each minerals tract. oil, gas, and servitude was Frost Lumber servitude, due. Indus- mineral Fed- owner The sale of tries its each of the 40-acre Company, it by exercised Petroleum eral plaintiffs tracts owned did not producing gas within the 10- drilling estate; consequently dominant divide the either of the tracts but not on period, year partitioning the articles relative to plaintiffs. Plaintiffs contend- conveyed to applica- estates could no dominant mineral servitude was created ed that to the acts of the Frost Lumber In- tion Industries in Lumber its reser- by Frost dustries. tracts, these it sold two when vation exercised

that, this ser- since .had opinion majority In the original on hear- vitude, prescribed, had the servitude more ing, pointed we out in our discussion of “* * * elapsed years having since the than that case that the owner of affected possession necessary could not be fore mineral servitude never had the adversely, acquisitive pre- prescription. the liberative far as so scription concerned, by the sale pointed opin- original We out parts the landowner numerous small application ion that decision no had the land with the servitude. burdened case, to the no instant but counsel doubt simply doctrine that case is place great following reliance on the ex- tract of burdened land owner pression therefrom 172 So. [186 any- mineral cannot do with a : “The rule of law controls this 766] value of the servitude thing lessen the case is that rights, the exercise of mineral his consent”. its owner without servitude, any one con- upon tinuous tract of land which the ser- Connell Muslow Oil case of imposed vitude is is considered exercise Co., Inc., supra, al., plaintiff claimed et the whole tract.” acquirendi of 10 weAs rights have stated above in in 40 acres of our dis- causa mineral Giauque, 1919, cussion Lee al. v. et acquired by January, this him in land principle correct of law, it has but no mention without reservation or application in the instant case. mineral the land. Previous Company acquisition Natalie Oil Hodges The facts in et al. v. Norton land, plain- had sold in which acres al., supra, clearly, et have been concise- included, tiff’s reserv- 40-acre tract was ly, correctly set forth Chief Just- No ing the on-the entire minerals tract. O’Niell, ice A. Charles the author of the plaintiff’s well was drilled opinion original rendered herein. As production on other there was drilling pointed out, there Augusta Mrs. Ann Hod- subject to the servitude. This ges and her children owned a one-fourth plaintiff’s plea found that without whole acres merit for the reason that the Natalie Oil subject or, Company in title had and its successors words, other she and her children owned possession retained of the mineral throughout a fractional interest the tract or servitude on the whole acres of 80 with all owners of in common the ques- in acres servitude; co-proprietorship thus a existed. part, by tion formed the drilling reason the facts in that case For this subject on well land to the servitude and from the facts distinguishable in this by production oil lessee of Nat- case, and the of 10 Company alie Oil and accrued, its successors in not causa had under liberandi continuously provisions title since Article the well 801 of the was Civ- is brought plaintiff that case there- in in 'there- The decree in 1912. il Code. way Selby conveyed with re- fore no in conflict in turn the one-fourth acquired only in this case. himby sult which have acres of the we reached tract, did not and could not have ef- Corpor- Counsel for Toklan dividing fect of Likewise servitude. following language found rely ation on the agree with the we conclusion therein the result that case to show that the exercise hearing incor- original case on portion subject of the tract to the ser- upon which the servi- land rect: “The preserved tract, vitude as it to the whole one continuous tude was established therein, for the reason advanced but ser- one indivisible tract. 'There but because the servitude were co- owners the min- mere vitude and the fact that proprietors Article under the Civ- conveyed undivided interests eral owners il Code. have the to others did not *** dividing The rea- it. effect The problem prescription of servitude can son for this that a case, one, servitude in in this land. be created the owner arose as a result of a sale servi- chil- Therefore, and when widow tude owner of a mineral interest in a conveyed Hodges an un- dren W. of E. particular part subject of the tract min- divided one-fourth the servitude. In that case covering the Selby, the servitude erals to result, reached pointed out Likewise, intact. remained land entire before, applied but principle the wrong a one- to Norton Selby conveyed when problem law. The should have been un- minerals in and fourth interest solved the application’ of tract, acres of the der 220 Civil apparent it ser- exercise of the divided and was not the decision that the court did not think pre- any portion of the land vitude on necessary to consider Article This 801. whole.” to the it as served is because the court did not realize that Selby’s sale to Norton of his one-fourth that, Hodges E. when W. agree We interest in the minerals in 220 acres had Hodges convey- Augusta Ann and Mrs. effect, Code,, under Article Hodges and Andrew ed the J. dividing dominant estate as be- over of the minerals one-half reserved that, them, tween but for their co- acres, one, tract of the entire proprietorship the widow heirs indivisible servitude was creat- only one, Hodges, of the servi- E. W. the user ed, subsequently fact that there- Selby tude the area retained would and heirs of Hodges widow E. W. interrupted pre- running one-fourth of conveyed minerals Selby, the entire under scription as to area held Norton. 261 262 truth, Article paragraph tion opinion we áre first of the the same consid- has 803 heretofore been never should expressly to it. be reserved running whether determining ered in herein, For the reasons our assigned suspended or been has decree original hearing, rendered on af- - own- interrupted an in case where firming the judgment lower er of is limited to a mineral servitude decreeing that the mineral interest of particular subject to the area of Toklan Corporation Royalty in 40 right. exercise servitude for the acres forming the SE NE % Yi Application results from North, of Section Township Range study thought on further new founded West, extinguished by been problems the vexing and research into years, is reinstated. upon been called to de- which we have The costs of these proceeedings are to apply efforts to con- cide from our paid deposited out sum in the sistently, by analogy, the articles of the registry of the court by the Ohio Oil predial relating servitudes Code Company. The expressly reserv- development this law toed Toklan Royalty Corporation ap- state. ply for rehearing. et exception of al. Lee v. With

Giauque, supra, of the cases discussed all O’NIELL, J.,C. concurs in the decree many fully above us and others were given for reasons opin- the majority analyzed by his con- ion Hamiter in rendered the original hearing of Justice this case. curring opinion original herein filed pointed out that

hearing, and he likewise results reached

none of the BOND, J., absent. any way in cases conflict

these herein. decision our PONDER, FOURNET JJ., dissent. already prin- stated that the We HAMITER, J., applied this concurs to be case reasons

ciple lawof given opinion in his concuring Byrd Forgot et al. case of in the original hearing also for the reasons al., et So.2d son assigned by HAWTHORNE, J., herein. and, decision down in a handed same, case, day Byrd FOURNET, (dissenting). Justice granted to de- rehearing apply herein, fendants-appellees question presented and therefore for our consid- Corpora- estate, light here is: Can an to Toklan eration in fairness ions, concepts all entirely mineral servi- a based different jurisprudence of our rights. or “must of the law stand relative to tude is indivisible and fall whole,” the servitude relieved of a be as views, I respect With all to due these acreage, its even designated on a I of them find cannot to subscribe acreage has been though remaining the majority of by to the arrived at the result peri- prescriptive the developed within well court, the it the con- my is firm belief extinguishment be- by law for its od fixed violence to a clusion reached rule does person nonuse, simply because the cause property established that has been firmly portion of the fractional purchasing the by long a decisions in this state line of designated acreage affecting the servitude have, we since that affects what ever failed owner primitive servitude from the property recognized as “the most valuable assigned within him develop area to to Sample, in (De the state” Moss v. ? ten property 484), which La. 78 So. problem posed has, date, into an since that mushroomed proper solution importance gigantic industry unbelievably utmost question is of the of almost by this bar, to but also proportions. only to bench and not and to the industry as a whole petroleum The error author into dealt with people who have innumerable opinion fallen, my opinion, lies main has either their this state applied Paragraph fact that he has reservation, of such or sale purchase, 1 of the revised Civil Article proved problem to be has rights. That the wherein is that “When es- it declared much complex given has us it tate to servitude due ceases the fact that dur- evident concern is undivided, by partition, means of a each be has been case many this ing the months only coproprietors, of those who here, companion as as the pending well preserves he the use makes La.Sup., 34 Byrd Forgotson, case of it, nonusage it the others lose rehearing 777, argued the same So.2d required during prescription,” time originally submitted this as case day substituting, to a mineral 19, 1944, the on December us for decision min- analogy, owner of the so-called divergence of the court, because of the Ac- servitude for the dominant estate. eral members, not cording opinion been he has this be- its done views some of final decision this cause found that a ere he the articles to render unable applied previously code today, being decision handed but, even touching on mineral servitudes the view of ma- reflect its decisions not does down instead, is, IV of Civil main- were under Title the Revised court. It jority opin- predial Code, dealing supporting with servitudes different by three tained II, a (found Book that nated area. Such servitudes classified right-in things modifica- as real treats different a servitude and the nature person, or, tions title Ar- ownership), under which favor otherwise ex- pressed by orig- ticle Chief 803 to found. O’Niell in his be Justice decision in the (150 inal case Frost-Johnson apply place, impossible it is the first 91 So. “a 216) right, real by analogy or otherwise to or servitude of sort called usufruct.” dividing the ser- mineral servitude without What court has its actually done in- doing and without violence to vitude jurisprudence resepet in this is to establish numerable code other articles type predial that is neither illustrate, To found under this same title. personal, speaking. strictly nor It clear- applied properly when this article is ly personal servitude because does intended, party who loses his cases expire death of the owner. does not interfere servitude nonuse it predial servitude, And is not a it is upon with or effect whatsoever any have upon established estate for the one pre- those owners who cannot, benefit of another there- estate. It the servitude use servitude served to fore, be governed any letter entirety, e., in its i. area af- the whole the articles of with ei- the code deal primitive grant. fected As personal ther predial or servitudes. In- applied analogy, per- is here article stead, has, sui being generis, court preserved son who has servitude past, applied only such articles found using year prescriptive it within ten each of categories capa- under as these are period is forever from using barred this applied ble of being to the so-called min- to servitude the extent that it affects the eral servitude its against area reason of nature by prescription released and an- concept has failed and has refused apply owner who to it. to use such of articles as have been found to be either study analysis A and of all of the cases against public policy or pri- detrimental to upon wherein this court has been called to rights. vate The court consistently re- adjudicate respect determine and to with fused to classify the predial servitude as a ownership the nature of the the rights and apply acquired reservation, one to purchase, articles found and minerals, sale very shows that dealing predial under the title servi- first court tudes to ownership concluded the so-called mineral such servitude un- sought minerals applied less be themselves but article go of a upon explore the land and a found be such character as to be possession applicable reduce to generally to all whatever min- servitudes. Gulf may Hayne, 555, erals be underlying desig- Refining found 138 La. 70 v.Co. So. 268

2fi7 majors Ann.Cas.1917D, in favor 1147, suspending L.R.A.1916D, 509, jointly with when is held v. the servitude Sal 130; Lumber Co. Frost-Johnson 207; minors, a upon the fact 756, Lee not based Heirs, 91 So. La. ling’s 150 669; predial servi- a Wem- mineral in fact 491, servitude 97 So. La. v. 154 Giauque, up- but, rather, 483, one, tude or is Co., La. classified as 154 & ple Gas v. Nabors Oil Nelson, on the 155 La. conclusion of the 666; v. 97 So. Wilkins declaratory provisions 802 are Delta of Article 607; Tensas v. 807, Clark So. 99 applied general 1; principle may Palmer of be 913, 136 Co., So. 172 La. Land predial Moore, personal servi- 171 La. as well v. Corporation of Louisiana See, Corporation Whitaker, tude. of Louisi- Palmer 229; Sample v. Isaac 774, So. 132 229, Moore, 774, ana v. La. 132 So. York 171 511; Sample v. 949, So. 171 La. 132 Sample Whitaker, 722, v. York 38; La. Patton 722, 135 Whitaker, So. 172 La. 916, So. 38. Industries, 176 La. v. Lumber Frost Co., Oil 33; Muslow v. Connell So. O’Niell, In the Palmer case Chief Justice Williams, 763; 491, v. Ford 172 So. 186 La. original opinion author of the main 298; v. 229, Oil Co. Ohio So. La. treating of ar- hearing, had this to say 902; 198 So. Cox, 196 La. ticles [171 Republic Pro- Lumber Industries Frost articles language of the So. “The 231]: 462; as well Cir., Co., 5 112 F.2d duction plainly that articles quoted shows sub- entire excellent treatise as an paragraph of article 803 802 and the first mineral servitude ject of the so-called predial applicable only to real or servi- Daggett’s Spiller Harriet Dr. be found tudes, not to favor in Louisiana. Rights Mineral

work on person. paragraph article The second personal servi- applicable to a 803 seems extinquish- jurisprudence Under tude, if the in favor two servitude for so-called aof ment persons right of and the each governed is the more one for ten nonuse its touching may on all it the state them is so defined that be exercised policy of public expresed in Article generally right as with without interference of an- servitudes true, (found, Code Civil Revised predial Real other. or are de- servitudes when in connec- read IV) Title under fined in article thus: ‘Real 3546, which declares that Article tion servitudes, predial are' which also called usufruct, and habitation use rights of “The servitudes, those are which the or landed for ten lost nonuse are servitudes enjoys a neighboring estate owner of an years.” benefit own of his estate.’ estate says: ‘If estate jurisprudence, Article in whose

Likewise, under established,’ etc., is provisions 802, the servitude favor application of anything but to a declaratory general principle which cannot refer a to the says: that, predial article 802 servitude. effect And as to an indivisible real etc., coproprietors/ which among the prescription applica- ‘If where estate coproprietors suspended of ‘the in ble means the to as to one several joint suspended servitude is established.’ right, whose favor the owners of the it is paragraph says: them, article 803 as to so, first all of necessarily And the and this to which servitude is obligation estate because an indivisible ‘When the due,’ etc., only predial extinguished means a servi- cannot and exist ruling part.” opinion, Ever since the tude. In this in accord Frost-John Heirs, Salling’s jurisprudence son Lumber Co. v. 150 with the of this state on the 756, 207, subject, La. 91 So. we following pertinent adhered we find person the view that the the observation: gas another mineral oil and in the land * * * "Mineral reservations ewe personal servitude, is a in the nature of deemed servitudes m person, favor of concluded limited He therefore * ** usufruct.” in the nature a limited usufruct. application that these articles have no ato They are person real favor of rehearing, however, * * servitude. On * instead an estate. The real court, curiam, per in a declared the estate to which such attach servitudes

above in so far as it relates statement released from their the servitudes non- articles “is not to be re- period, given provided for a use as by ar- garded authority,” remarking that as while ticles 789 3546 of the Civil Code. argued it had been with much force in the These articles are usually pertin- as cited * * application rehearing that these ar- ent to such reservations *.

would ticles are ple only, as well express as to declaratory predial no may be opinion servitudes, aof applied general princi- personal respect. their ors, “Prescription ^[*] but is minority, ^[*] suspended, does not run save in those ^[*] as ^[*] them, against H< instances during ^[*] min- orig- was handed down on * * This decision * specifically provided by law. December, 1930, hearing in on re- inal and. running Hence (Italics hearing January 1931. suspended minors, so long as their mine.) minority continues. April following on re- decision Hs Hí H* H< case, court,

hearing in the Palmer “Article of the Civil reads Code that: Sample Whitaker, v. York case of coproprietors among ‘If there be one 38, 40, squarely run, held against So. whom can not minor, preserve 802 "are he shall provisions merely of Article for instance contemplated code) 801 of the by Article is the as article This others.’ of all the has misinter- thereof the shows that the author that logical principle sequence of Hodges case. indivisible, preted the issues in the prin- a servitude are at coproprietorship was never incorpo- theory of time first ciple which was for the The sole case. issue 652, and issue that article rated Code 1870, been estab- servitude had whether new repeated Civ.Code Revised shown provided various transactions although, as lished as article set-up of the factual occurred in the Revised Civ.Code have article npw the Code 653 of article servitude had 1870, which and whether this case resulting from the advantages during the prescribed ten its nonuse divided, they although there year prescriptive period whenever be may on another development production susceptible division. are by the portion affected the tract of land defined, as we this court "While original primitive servitude. * * * to said, reservation a mineral . may Hodges case I think facts in the person, in a servitude be favor of fairly follows: stated to be as be it has usufruct, a limited nature' of usufruct, which is be a it to never defined sold Hodges and his wife Esmond Civil Code '538 by article declared Hodges A. tract of 440 acres to J. is indivi- think that it to be We divisible. 6, 1915, reserving them- November unto advantages nature, although the in its sible interest selves an undivided half from it are divisible. may derived oil, gas, other minerals thereunder (Italics a whole.” It must stand or fall period years. of 15 Thereafter restricted mine.) all Hodges Hodges and his died and Mrs. opin- respect to main interest in the due heirs an undivided With all sold % expressed, it is acreage views therein minerals A. ion and the in the entire to J. observation my opinion Selby, Jr., 1923. This was humble on October reserved and reached an undivided half their therein made minerals; Hodges v. Nor- undivided half result in case applied ton, So.2d but no was made in the Sale 200 La. mention 15-year period. law principle (for the reason Selby wrong restrictive primitive days later, 31, 1923, Selby heirs of widow and Two on October acquired servitude sold thus him so-called mineral the interest owner Hodges interest in servitude Mrs. and her children to R. a fractional W. owned Norton, tract in common but the interest entire sold him to throughout the did not cover the entire owners of the Norton 440-acre all thereof, non-contiguous It showing coproprietorship two tract. covered clearly Selby. the chase from It was contention original of the that formed tracts plaintiffs Hodges, by convey- the his containing 80 acres 440 acres —one Selby reversionary rights ance to retained the Selby the acres. other 140 reconvey- 21, 1923, Selby’s November by acquired been mineral interest had rights ance on the Hodges of these back to remaining the it him in so far as affected following day excepting from such con- — Selby Norton, his sale to acres. In veyance by min- acres affected mention restrictive also made no purchased eral interest Norton had from years. November period On Selby, had intended establish new ser- to Hodges had (to A. whom the land J. by reducing vitude in favor of Norton rights when mineral were been sold 15-year prescriptive period same from the reserved) originally Selby released from provided original mineral reservation they “reversionary” rights far in so 10-year pre- when the land was to the sold Selby the undivided affected interest % scriptive period provided for purchased from Hodges had Mrs. Revised Civil Code. In disposing day her and on following children of this issue upon the court said: “The land Selby .reconveyed this back release A. J. which the servitude was established is one limited, Hodges, however, to the mineral continuous tract. There was but one indi- by Selby. sold Norton Two wells visible servitude and the mere fact that the by in 1924 given under drilled lease conveyed mineral owners inter- undivided Hodges, children, Mrs. her A. Hodg- J. ests in the others did not have the * * prior * sale es undivided dividing effect of it. reason % The Selby. interest wells These for this is that only servitude can be cre- by by Therefore, were located land not ated affected owner of the land. when the widow purchased Selby. and children interest Norton of E. W. conveyed Hodges words, an they undivided were located one-fourth on the 220 Selby, interest the minerals servi- Selby acres on which had retained the min- covering the tude entire land remained in- acquired him, eral not on Likewise, Selby when conveyed tact. the 80-acre tract or on the 140-acre tract one-fourth Norton a interest in the miner- affected Norton’s interest. under 220 tract, in and acres of the als produce These wells continued to until was not divided and exercise pur- for 1931. instituted suit portion on any the servitude the land pose extinguished of having declared (Italics the whole.” preserved it as to nonuse of 10 mineral in- the Nortoq mine.) acreage pur- terest in the affected

- 34 So.2d 777 issue Clearly disposed of this court it has jurisprudence light BYRD et al. et al. v. FORGOTSON generally up now understood been until 37457. No. bench also Feb. 1945. think, state, and, I throughout and bar Hodges Mrs. correctly fact that so. The 15, 1947. Rehearing On Dec. in- fractional and .her children retained Rehearing Feb. 1948. Denied not have entire did terest running interrupting the then effect of n never at issue. this was prescription, the servitude Instead, the fact it was exer- been and that had imdivisible the area drilling well on

cised primitive servi- original or by the

covered part of es-

tude, although not on the acquired interest

tate affected preserving effect

Norton, had tract, which, entire as to the

the servitude miner- title Norton’s

naturally, made good. him purchased

al

' apropos here the most Finally, I believe posed on has Chief

admonition Justice that when effect to the many occasions

so established of this decisions been done property, as rule rights, respect to cases

cited reversed, though even

“they should logi- deemed more contrary might be rule Legisla- by an act it be

cal, unless Co., 173 Pioneer Gas Roberson

ture.” 82 A.L.R. 1264. So. respectfully I dissent reasons

For these expressed result the views majority the court. by the

reached

Case Details

Case Name: Ohio Oil Co. v. Ferguson

Court Name: Supreme Court of Louisiana

Date Published: Feb 11, 1946

Citations: 34 So. 2d 746; 213 La. 183; 1946 La. LEXIS 870; No. 37548.

Docket Number: No. 37548.

Court Abbreviation: La.