St. Martin Land Co. v. Pinckney

33 So. 2d 169 | La. | 1947

Lead Opinion

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This is an action in jactitation or slander of title.

The St. Martin Land Company, the plaintiff, conveyed to Emerson C. Russell a 1/16 royalty in all oil to be produced and saved from a large tract of land, owned by the plaintiff, lying in the Parish of St. Martin. The defendants are the assignees of the 1/16 royalty. Each owns a fractional interest of the 1/16 royalty. The plaintiff is seeking in this suit to have the defendants either disclaim any title to the 1/16 royalty or assert their rights by suit. The plaintiff also seeks damages in the amount of $5,000.00. The suit is based on the ground that more than ten years have elapsed since the plaintiff conveyed the 1/16 royalty interest to Emerson C. Russell on April 26, 1928 and that, by reason of prescription liberandi cause of more than ten years, the deed conveying such interest is void and of no effect. There was judgment in the lower court rejecting the plaintiff's demands and recognizing the defendants to be the owners of the royalty interest in various fractional parts. The plaintiff has appealed.

It appears that Emerson C. Russell and W. H. Cocke entered into an agreement with the plaintiff for the purchase of the 1/16 royalty involved herein, but, as the purchase price was too large for them to handle, they entered into an agreement with Hogg Brothers of Houston, Texas, who furnished the funds to pay the consideration of the sale with the understanding that Russell and Cocke could purchase whatever interest they later desired by reimbursing Hogg Brothers the cost of such portions. The royalty deed was placed in the name of Emerson C. Russell. In an instrument dated February 24, 1928, Russell acknowledged that Hogg Brothers owned the royalty interest conveyed to him by the plaintiff. On March 6, thereafter, Russell formally assigned the 1/16 royalty interest to Hogg Brothers. The assignment was recorded on May 18, 1929 in the conveyance records of St. Martin Parish.

There was an agreement between Hogg Brothers and Russell and Cocke whereby a portion of the royalty was set aside in order that Russell and Cocke might purchase it. This portion of the royalty interest was subsequently assigned to Pinckney and Picton, two of the defendants herein, by consent of the parties. The original agreement was amended on June 19, 1928 whereby Hogg Brothers agreed that they would transfer to Russell and Cocke 22 1/2% of the 1/16 royalty interest upon payment of their note at maturity, February 23, 1929, of $6,834.38, held by Hogg Brothers. Emerson C. Russell died on November 18, 1928 at his residence in Houston, Texas, before the transaction was consummated. His succession was opened in Texas and ancillary proceedings were instituted in Calcasieu Parish, March 23, 1929. Nat U. Collier and Franklin J. Russell were appointed co-executors in conformity with the terms of Russell's will and recognized as such in the ancillary proceedings in Calcasieu Parish. Cocke, some time after Russell's death, with the consent of the executors, entered into an agreement with Hogg Brothers to separate the contract and the indebtedness into two equal parts in order that Cocke might acquire his interest in the royalty independently of the Russell estate. Eleven and one-fourth per cent interest in the 1/16 royalty was assigned by Hogg Brothers to Cocke on September 9, 1929. On account of the estate being heavily involved and the lack of funds, the executors were unable to pay the indebtedness of the estate and acquire the other 11 1/4% interest for the estate. However, an agreement was reached between the executors and Hogg Brothers some time in March, 1929, wherein one-half of the 11 1/4% interest of the 1/16 royalty would be transferred to the executors, in their capacity as such, and the indebtedness of the estate cancelled. It appears that this adjustment was reached for the mutual benefit of all the parties. On December 27, 1929, pursuant thereto, Hogg Brothers assigned to the executors, "in their capacity as executors of the estate of Emerson C. Russell * * * for themselves as said executors, their successors and assigns," the 5 5/8% of the 1/16 royalty (which is one-half of the 11 1/4%) for a recited consideration of $10.00 and other valuable consideration. Among the inventories taken in the succession of Russell was one taken in St. Martin Parish. This inventory is dated April 9, 1929 and filed on April 12, 1929, and we find that the 5 5/8% of the 1/16 royalty was listed therein as the property of Russell's estate. No further steps were taken in the succession until September 5, 1939, more than ten years from the date Emerson C. Russell first acquired the 1/16 royalty interest, when the heirs of Russell were placed in possession of the estate in Louisiana and the executors were discharged by order of the district court. One of Russell's heirs, a daughter, Janet, born on April 24, 1924, was a minor. The present suit was filed on October 5, 1944. We find that a disclaimer, dated October 17, 1944, was filed in the record on October 19, thereafter, wherein the executors disclaimed any interest in the royalties and stated that they accepted the royalty deed as shown in the instrument only in their official capacity as executors for the benefit of the widow in community and heirs of Emerson C. Russell deceased. They further stated that they have never claimed any interest in the royalties whatsoever.

The plaintiff concedes that prescription does not run against the minor, Janet Russel, now Sirles but contends that the minor acquired no interest in the property until after the right, which she claims, had been extinguished by prescription. The plaintiff takes the position that the executors were not authorized to purchase the royalty interest and, therefore, the title to it is vested in the executors individually and not in the succession or heirs whom they represented.

Under the plain provisions of Article 3554 of the Revised Civil Code, prescription does not run against a minor except in the cases specified by law. This article is contained in the section of the Code dealing with liberative prescription and the cases specified by law where prescription runs against a minor have no application to the liberative prescription of ten years.

Under the Provisions of Article 1660 of the Revised Civil Code, it is the duty of executors who have been given full seizin, as was done in this case, to execute the legacies contained in the will and to cause any other conservatory acts of the property to be made. A suit for this purpose may be brought by the executor in his own right and capacity under the provisions of Articles 1135 and 1660, R.C.C. Smith v. Sinnott, 44 La.Ann. 51, 10 So. 413.

An executor may buy land for a succession which he is administering upon which his testator has a mortgage and vendor's lien for the purpose of saving the debt and bringing back property to the succession. Guilbeau v. Millard, Manning's Unrep.Cas. 308.

There is no question but what the executors were doing a conservatory act and one which redounded to the benefit of the succession when they salvaged from the contract the royalty interest. But be that as it may, only the heirs alone have the right to question the authority of the executors in effecting a compromise, settlement or adjustment. Delabigarre v. Second Municipality of New Orleans, 3 La.Ann. 230.

Moreover, in the case of Standard Oil Co. of Louisiana v. Futral et al., 204 La. 215, 15 So. 2d 65, 73, wherein a person by the name of Van Geffen had acquired a mineral interest in certain lands from Futral in his own name and afterwards had addressed a letter to other parties showing they had an interest in the minerals that he had purchased from Futral, this Court had this to say: "Since Van Geffen is not complaining, but concedes that the others named in the letter own the undivided interests in the minerals as set out therein, Futral has no right to complain, because he does not now deny that by his sale to Van Geffen he divested himself of title to an undivided 1/64 of his minerals or mineral rights."

Since the deed is made to the executors in their official capacity and they have at no time claimed any interest in the royalties, it is our opinion that title vested in the estate of Emerson C. Russell at the time the royalty interest was acquired by them on December 27, 1929, before prescription had accrued. Consequently, the minor's interest became vested in her at that time, subject to administration by the executors.

It is contended that the minority of Janet Russell interrupts the running of prescription against the other defendants herein. The contention is based on the ground that a royalty right, of the nature involved herein, is a personal servitude and that the minority of one of the co-owners interrupts the running of prescription against the other co-owners under the provisions of Article 802 of the Revised Civil Code.

No useful purpose could be gained in considering the arguments advanced to support this contention for the reason that this Court passed on a royalty right of a similar character in the case of Vincent v. Bullock, 192 La. 1, 187 So. 35 and arrived at the conclusion that it was not a servitude but a conditional obligation, depending on an uncertain event, that prescribed in ten years if the event did not happen prior thereto. We refused to apply Article 792 of the Revised Civil Code which deals with obstacles preventing the use of a servitude. We pointed out that a royalty right, unlike a servitude, imposes no obligation on the part of the royalty owner to explore for and develop minerals. We cited with approval the analysis of the word "royalty" in Mrs. Harriett Spiller Daggett work on mineral rights in Louisiana. The author states that the legal nature of royalty must be grounded upon the contract in which it appears. After discussing royalties grounded upon lease and servitudes, the following observation was made: "If the word is used in the contract to indicate a passive interest in possible production, without the leasing or production privilege usually inherent in the right, then a new and as yet uninterpreted situation appears upon which the court has not declared itself fully." The royalty right involved in the Bullock case was a passive interest in possible production and the court passed directly on a royalty of that nature and held that such right prescribed in ten years, if there was no production prior thereto.

At the time the Civil Code was adopted the oil industry was not in existence. Consequently, the framers of the Code did not contemplate the various questions and problems arising in the course of the industry. The Legislature has not seen fit to adopt statutes sufficient to guide the courts in determining the various controversies arising in this industry. Under such circumstances, the court was compelled to apply the articles of the Civil Code that were most applicable to the nature of the rights asserted. In doing so, mineral rights, strictly speaking, were deemed in the nature of a servitude because a privilege was granted to explore for and develop the minerals. In order to do this, it was necessary to go upon the land. The right being in the nature of a servitude, the codal articles dealing with servitudes were applied and the prescription of non-usage, dealing with servitudes, was applied when the right had not been exercised within ten years. A mineral right is necessarily superior to the royalty right in that, in addition to the right to share in any production, the owner of a mineral right can go upon the land to explore and develop minerals. A mineral right prescribes in ten years if it has not been used. There would seem to be no just reason why a passive royalty right should exist for a longer period of time, simply because it could not be used or prescription could not be interrupted. When the Bullock case was presented to this Court some rule had to be established and we arrived at the conclusion that the rule established therein was the most reasonable one. It must be borne in mind that we had no exact rule to apply and consequently applied the articles of the Code most applicable to the nature of the right involved. But be that as it may, the Bullock case was handed down in 1939 and its pronouncements have been affirmed by this Court and have remained as a guide for those dealing in oil royalties for a number of years. It has established a rule of property. It is well settled that decisions of the highest court of a State on the subject of oil rights establish rules of property and should not be reversed unless it be by an act of the Legislature even should a different rule be deemed more logical. Roberson v. Pioneer Gas Co., 173 La. 313, 137 So. 46, 82 A.L.R. 1264 and the authorities cited therein. Our conclusion is therefore that the minority of Janet Russell does not interrupt the running of prescription against the other defendants. Since there was no production of oil on the lands within the ten year period, all the royalty rights of the defendants, other than Janet Russell, have prescribed.

It is contended that the royalty right has been maintained in effect as against any prescription by its continuous exercise, in the sense that not more than ten years have elapsed between bona fide drilling for production of oil, regardless of whether such drilling be successful or not. This contention is answered by our above conclusions. We arrived at the conclusion that the right was not a servitude, but a conditional obligation depending on an uncertain event that prescribed in ten years if the event, production of oil, did not occur within that period of time.

It is contended that the Legislature by Act No. 232 of 1944 has interpreted the holding in Vincent v. Bullock as applying the liberative prescription of ten years to a royalty right, carrying with it all the rules relating to the suspension of that prescription and particularly the rule laid down in the case of Sample v. Whitaker, 172 La. 722, 135 So. 38.

Section 1 of Act No. 232 of 1944 reads as follows: "Be it enacted by the Legislature of Louisiana, That despite the fact that among co-proprietors of any mineral or royalty right there be one or more against whom prescription cannot run, as, for instance, a minor, the liberative prescription shall nevertheless run against the co-proprietors not under legal disability."

It is pointed out that mineral royalty rights are placed in the same category by the act. As we take it, the legislative intent is not in conflict with the holding in the Bullock case for the reason that it is directed at the same result, viz.: that the minority of one of the co-owners would not prevent the running of prescription against his coproprietor. At the time the Legislature passed this Act in 1944 the holding in the Bullock case had been in existence some five years. This Legislature or prior Legislatures did not see fit to modify or change the pronouncements made in the Bullock case. Since the Legislature has not seen fit to change the law as it was interpreted in the Bullock case, we must assume that it is not disposed to do so. Succession of Sciaccaluga, 177 La. 796,149 So. 458.

The plaintiff evidently abandoned his claim for damages because it was not urged in the brief or in the argument on this appeal. Moreover, there is no evidence in the record upon which we could assess damages with any degree of certainty.

For the reasons assigned the judgment of the district court is reversed and set aside. It is now ordered that the plaintiff have judgment against the defendants — The University of Texas, Stephen L. Pinckney, W. H. Cocke, David M. Picton, Jr., Mrs. Lady Parnell Russell Groverman, Franklin J. Russell, individually and as guardian of the interdict Beatrice Russell, and Nat U. Collier — decreeing the conveyance from the St. Martin Land Company to Emerson C. Russell of date January 5, 1928 and April 25, 1928, recorded in Conveyance Book 108, Folio 474, Entry No. 48,732 null and void in so far as they are concerned. The plea of prescription is sustained except as to Janet Russell Sirles. It is further decreed that Janet Russell Sirles is hereby recognized as owner of 1/4 of 5 5/8% of 1/16 royalty interest in all oils produced from the lands described in the royalty deed from St. Martin Land Company to Emerson C. Russell, aforementioned in this decree. All costs to be paid by the defendants with the exception of Janet Russell Sirles.

O'NIELL, C. J., concurs in the decree.

HAMITER, J., concurs in the decree and assigns written reasons therefor.

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Concurrence Opinion

The principal issue herein, which is whether or not a mineral royalty is a servitude such as would render applicable the provisions of Civil Code, Article 802, has been properly determined, in my opinion, on the authority of Vincent et al. v. Bullock et al., 192 La. 1, 187 So. 35, the decision in which was and is unquestionably correct. My views, however, are not wholly in accord with the reasons assigned for the decision in the Vincent case.

I agree that a mineral royalty, whether sold or reserved, is not a servitude. The mineral servitude is a right in the land, constituting a part of the ownership itself. It is a jus in re. The owner of that right has the privilege of going upon the property for the purpose of exploring for the minerals. Furthermore, he is a necessary party in the execution of any lease thereon and is entitled to receive (unless specifically waived) a proportionate share of the bonus and the delay rentals paid under the lease. The mineral royalty, on the other hand, is only a right attached to the ownership of the land; it forms no part of the thing itself. It is a jus ad rem. The owner of the mineral royalty, whose role is entirely passive, has no privilege of ingress or egress to the land, and, hence, cannot produce the minerals. Furthermore, his consent for the execution of a lease is not required, nor is he entitled to participate in the bonus or the delay rentals that may be paid under its terms. The right that he has is but an appendage of the right of the mineral owner, and is merely one to share in the production of oil, gas and other minerals if and when they are produced.

Also, I agree that a mineral royalty (not a rent royalty restricted to a particular lease) is a real obligation or right in favor of the person acquiring it, his heirs or assigns. Obligations of this kind, imposed on the land by the owner thereof, are authorized by Civil Code, Article 2015.

But I do not agree with the conclusion in the Vincent case that a mineral royalty is an obligation dependent on a suspensive condition within the meaning and intendment of Civil Code, Articles 2013, 2021 and 2038. If it were such an obligation, the operation of the contract, according to the very provisions of those articles, would be suspended until the occurrence of the event upon which it is conditioned (the production of minerals); and, hence, the applicable liberative prescription would commence to run only from that time.

A mineral royalty, in my opinion, constitutes merely the sale of a hope as authorized and contemplated by Civil Code, Article2451 which reads: "It also happens sometimes that an uncertain hope is sold; as the fisher sells a haul of his net before he throws it; and, although he should catch nothing, the sale still exists, because it was the hope that was sold, together with the right to have what might be caught."

An excellent treatise on that article is contained in 15 Tulane Law Review, 531. Therein the author, after quoting the codal provision, comments in part:

"The sale of a hope had its origin in the Roman law. In the sale of future goods, Roman law distinguished between emptio spei and emptio rei speratae. The difference between the two contracts was basic, and a discussion of each will conduce to a better understanding of the sale of a hope. The emptio rei speratae was the sale of a thing conditioned upon its coming into existence; whereas the emptio spei was the sale of a hope. If the contract were emptio rei speratae, neither party was bound until the subject of the sale came into existence. It was analogous to the common-law `agreement to sell,' in which there is no binding sale until the subject of the sale is produced. In the emptio spei, or sale of a hope, the purchaser was liable for the purchase price even if the seller did not produce the thing which was the object of the hope. The theory underlying this transaction was that the seller sold to the buyer the hope that the former had of acquiring the thing.

"The next inquiry to be made is into the mode of interpretation, that is, what factors determined whether a contract was a sale of a hope or an emptio rei speratae. It was agreed universally that the intention of the parties was to govern. But, since the intention of the parties was not always clear, the Roman law indulged in presumptions of intention. Where the contract was for the sale of things having a potential existence, i. e., things which might be expected in the ordinary course of events to come into existence, the contract was presumed to be emptio rei speratae. Classic examples of such things were future crops and the young of slaves and of animals. On the other hand, where the contract was for the sale of things which did not have a potential existence, as, for example, the cast of a net, it was presumed that the parties intended to enter into a sale of a hope. This fundamentum divisionis of potentiality of existence was not conclusive of intention. It only raised a presumption, which always yielded to a clear indication that the parties intended the contrary.

"The distinction between emptio spei and emptio rei speratae was not at all arbitrary. It was presumed that when a person bought a thing which would in the ordinary course of events come into existence, he did not assume the risk of its not becoming existent. Therefore, if it were not produced, he was not liable. On the other hand, when a person bought a thing which did not have a potential existence, it was presumed that he did assume the risk of its not becoming existent. Thus, it is evident that the Roman law's distinction between emptio spei and emptio rei speratae is explicable on the theory of risk of loss."

A contract conveying a mineral royalty cannot be considered as a sale of a thing having a potential existence, i. e., something which might be expected in the ordinary course of events to come into being. If it could be so considered, it would be the kind of agreement provided for in Civil Code, Article 2450 reading: "A sale is sometimes made of a thing to come; as of what shall accrue from an estate, of animals yet unborn, or such like other things, although not yet existing." And under such an agreement the purchaser would be entitled to a return of the price paid in the event of failure to produce the minerals. Losecco v. Gregory, 108 La. 648, 32 So. 985.

Rather the mineral royalty contract can only be treated as the sale of something not having a potential existence — the sale of an uncertain hope. This is so because, as is universally recognized, the exploration for minerals is very costly, as a result of which it is often difficult to find someone financially able and willing to conduct drilling operations; also, the obtaining of production, even after the commencement of the drilling operations, is exceedingly uncertain, highly speculative. What the purchaser acquires therefore is the hope that exploration or drilling will take place on the land affected by his royalty, together with the additional hope that it will be successful, thereby affording him the privilege of sharing in the production.

When royalty is sold, as the purchaser knows, the landowner does not obligate himself either to develop the land or to lease to a third person for exploration purposes. But the purchaser also knows that it is to the landowner's interest to lease the property on as favorable terms as he can in order to obtain a bonus, delay rentals, and possibly drilling with resulting royalties from production; and it is this knowledge which furnishes him the hope of gain from the royalty purchase and justifies his paying for it.

Through the confection of the sale the purchaser has hazarded the price of the royalty upon the occurrence of a chain of uncertain events in the forging of which he plays no part. He has, as it were, bet his money that the landowner will want to lease his land for the production of minerals; that such owner obtains a lessee who is financially able to and will commence soon and prosecute diligently operations for the production of minerals; and that such operations will prove successful. He has bought an interest in what may be caught if and when the net is cast, but he has nothing to do with the net's casting or with deciding when it will be cast.

Moreover, the rights of the purchaser under the acquired royalty are complete (the hope of gain commences) when the act of sale is executed, at which time also the obligations of the seller are satisfied. Accordingly, the purchaser is not entitled to a return of the price paid if the uncertain hope purchased, produces no gain. Losecco v. Gregory, supra.

And since there is an unconditional, completed sale on the signing of the deed, prescription liberandi causa necessarily commences to run at that time. But which one of the several specific prescriptions included in that general classification is applicable? This question was not answered in the Vincent case, although a prescription of ten years was there applied to a mineral royalty.

In Section 3 of Chapter 3 of Title XXIII of our Code are found the articles, 3528 through 3555, which treat "Of the Prescription which Operates a Release from Debt", — the general classification above referred to as prescription liberandi causa. The first five articles in that section, 3528 through 3533, are general in nature and relate to all of the liberative prescriptions. The remaining articles are grouped in paragraphs, each of the first five of which concerns a specific prescription, and the last or sixth furnishes only rules. The specific prescriptions dealt with by the first five paragraphs are respectively the following: Paragraph 1, Article 3534 through Article 3537 — of one year; Paragraph 2, Articles 3538 and 3539 — of three years; Paragraph 3, Article 3540 through Article 3543 — of five years; Paragraph 4, Article 3544, through Article 3547 — of ten years; Paragraph 5, Article 3548 — of thirty years.

From a casual reading of the articles dealing with the specific prescriptions of one, three and five years, it is clear that none of them is applicable to a mineral royalty right.

Neither can there be applied, in my opinion, the provision which deals with the prescription of thirty years, it reading: "Article 3548 * * * All actions for immovable property, or for an entire estate, as a succession, are prescribed by thirty years." Although a royalty interest is a real right, a real obligation, a suit to establish the right or have it recognized would not be an action for an immovable within the intendment of that article. As before shown, it is not a jus in re; it is merely a jus ad rem. It is only a right attached to the ownership of the immovable to share in production if and when obtained.

This being true, there is left for consideration the articles dealing with the specific prescription of ten years, only two of which could possibly be pertinent. One of these is Article 3546, reading: "The rights of usufruct, use and habitation and servitudes are lost by nonuse for ten years". This article can not apply, however, because an owner of each of the rights therein referred to has some control or management over the property affected; a mineral royalty owner has none.

But the other article is applicable, I think, and provides the specific liberative prescription governing a mineral royalty. It reads: "Article 3544 * * * In general, all personal actions, except those before enumerated, are prescribed by ten years." When a mineral royalty holder sues to establish his interest, the claim asserted is only for recognition of the right to share in the production resulting or which may result from successful exploration on the land. Thus, his suit is a personal action, although the interest on which the litigation is predicated is a real right or obligation (since it was stipulated to run with the land). It is not and cannot be considered as a real action in the sense of being a suit to recover an immovable.

This difference is made clear by our decision in Da Ponte v. Ogden et al., 161 La. 378, 108 So. 777, 781. Therein plaintiffs sued to recover an undivided 1/6 interest in certain lands, and they coupled with the action a demand for an accounting of all funds received by the defendants from the land by way of royalties from oil or other minerals. One of the defenses urged was a plea of prescription of ten years based on Civil Code, Article 3544. In disposing of the plea this court said:

"The action is a mixed action. It partakes in its nature the character of both a real and a personal action.

"It is a real action in so far as it seeks to recover an undivided interest in the lands and to compel defendants to execute title. It is personal in so far as it calls on defendants to account for and pay over one-sixth of the royalties received from said land.

"Article 3548, Civil Code, provides that all actions for immovable property are prescribed by 30 years. The case clearly falls within the terms of this article of the Code. The purpose of the action is to recover an interest in an immovable, based on an agreement to sell, and to compel defendants to comply with that agreement by the execution of a deed. It is apparent, therefore, that that part of the demand is a real, and in no sense a personal, action.

"The demand for the return of money had and received is in the strict sense a personal action, subject to the prescription of 10 years. * * *"

The doctrine of the Da Ponte case was inferentially approved in Parker et al. v. Ohio Oil Co., 191 La. 896, 186 So. 604, decided on the same date as Vincent et al. v. Bullock et al., supra. In holding that the prescription of three years was applicable to an action between the lessee and lessor for the proceeds of royalties under an oil and gas lease, the court distinguished the Da Ponte case by showing that in it there did not exist the relationship of lessor and lessee.

By analogy there are numerous other cases in our jurisprudence which support the conclusion that a mineral royalty, although a real right in that it affects the land, is governed by Article 3544 which provides for the prescribing of a personal action by ten years. Thus, that prescription was held to apply in R. E. E. DeMontluzin Co., Ltd., v. New Orleans N.E. R. Co.,166 La. 822, 118 So. 33 (an action of a vendor under a contract authorizing recovery of land on railroad's failure to construct a station pursuant to an agreement to that effect); in Louisiana Oil Refining Corporation v. Gandy, 168 La. 37,121 So. 183, Snelling v. Adair, 196 La. 624, 199 So. 782, and Haas et al. v. Opelousas Mercantile Co., Ltd., 197 La. 500, 2 So. 2d 3 (actions to reform deeds affecting immovables); in Bandel v. Sabine Lumber Co., 194 La. 31, 193 So. 359 (an action by purchaser of immovables against defaulting vendor to recover illegally diverted fruits and revenues); and in Louisiana Truck Orange Land Co., Ltd., v. Page, 199 La. 1, 5 So. 2d 365 (an action to set aside a sale of realty for nonpayment of the purchase price).

For these reasons I concur in the holding herein, which is predicated primarily on the decision in the Vincent case, that the mineral royalty in question was not a servitude such as would render applicable the provisions of Civil Code, Article802, and that it, except as to the interest of the minor Janet Russell Sirles, was lost by the operation of the prescription of ten years liberandi causa.