113 So. 867 | La. | 1927
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *336
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *337 This suit was instituted by the state of Louisiana to recover $130,378.78 from the Pure Oil Company and the Standard Oil Company of Louisiana, in solido, as the value of seven-eighths of certain oil alleged to have been illegally extracted from lands belonging to plaintiff by the defendant Pure Oil Company, and sold by it to its co-defendant, Standard Oil Company of Louisiana.
The oil in question was produced by three wells drilled on land which had become dry *338 because of the subsidence of the waters of Ferry Lake in Caddo parish. Plaintiff claims to be the owner of the land by virtue of its inherent sovereignty over the bed of the lake, a navigable body of water at the date Louisiana was admitted into the Union.
The defendant Pure Oil Company concedes that the property was at one time owned by plaintiff. It contends, however, that plaintiff had parted with its title to the Caddo levee board, and that said board, under the authority of Act 268 of 1908, had leased the land to it. In the alternative, this defendant sets up that if the land in question was not embraced in its lease from the levee board, the title thereof is in the levee board and not in the state, and that only the former may sue and not the plaintiff.
The board of commissioners of the Caddo levee district intervened in the suit, and adopted, substantially, the answer of the Pure Oil Company. The intervener specially averred that the land was included in its lease to that company, and it prayed for the enforcement of its rights as lessor. In the alternative, it asked, in the event the court should hold that the property was not covered by the lease, that an accounting be made of the oil produced.
The court below rejected plaintiff's demands. It sustained the prayer of the intervener for the recognition of its lease with the Pure Oil Company, but nonsuited its demands for a supplement of the price and for one-eighth royalty on the oil produced. Intervener's alternative claim for the value of seven-eighths of the oil was rejected. From this judgment both plaintiff and the intervener appeal.
The Caddo levee board was created by act 74 of 1892. Under the statute, the western boundary of the levee district was established on the line dividing ranges 15 and 16 west. By Act 160 of 1900 range 16 was included in the district, carrying its western boundary to the Texas line. *339
On July 6, 1901, pursuant to section 2 of Act 160 of 1900, the state auditor and the register of the state land office certified to the Caddo levee board approximately 14,959 acres of what was commonly known and classed as "dried-up lake lands." Among the lands so certified was the fractional west half of southwest quarter of section 3 and the east half of southeast quarter of section 4, township 20, range 16 west.
On October 10, 1910, the Caddo levee board executed a mineral lease to the Pure Oil Producing Company covering the following described property, viz.:
"All that portion of the east half of southeast quarter of section 4 and all that portion of west half of southwest quarter of section 3, township 20 north, range 16 west, not heretofore leased by the board to C.W. Lane, on the _____ day of _____, 1910, which lies in the shores or bed of Ferry Lake or Jeems bayou, the said lands being more specially described as all that portion of the west half of southwest quarter of section 3 not heretofore leased as aforesaid; and all that portion of the east half of the southeast quarter of section 4, township 20 north, range 16 west, Caddo parish, La., lying below the banks of Ferry Lake or Jeems bayou in ordinary stage of high water; being all of the lands owned by the said board in the subdivision aforesaid."
The instrument contained a declaration as to the validity of the title of the levee board and of the state, stipulated for the warranty of the title, with an agreement to refund the purchase price in the event of the lessee's eviction, and set forth the terms and conditions upon which the property was leased. In the contract it was specially provided as follows, viz.:
"It having been agreed between the said levee board on the one part, and the Pure Oil Producing Company on the other, that a survey should be made of the premises herein leased by a surveyor to be agreed upon by both parties, which surveyor has been agreed upon, and that the said oil company shall pay at the rate of $100 per acre for such acreage as may be shown by the said survey."
At the execution of the lease, the lessee paid the lessor $4,000, at the rate of $100 per *340 acre, and it was agreed that should the survey show an acreage in excess of 40 acres, the lessee should, within a stipulated time, pay $100 per acre for the excess, and should the survey show an acreage less than 40 acres, the lessor should within a stipulated time return $100 per acre for the deficiency. It was also agreed that if oil in paying quantities was discovered the lessee should have the right to retain out of the royalty oil a sum equal to $40 per acre for the total acreage leased as shown by the survey.
On October 24, 1910, the levee board and the oil company executed the following instrument in the form of an authentic act, viz.:
"Whereas, on the 10th day of October, 1910, the board of commissioners of the Caddo levee district accepted the proposition of the Pure Oil Producing Company to lease lands in sections 3 and 4 of township 20 north, range 16 west, Caddo parish, La., owned by the said board, the acreage thereof to be determined by survey to be approved by the board; and
"Whereas, the said survey has been made and returned showing an acreage of 50.992 acres of land embraced in the said lease as belonging to the board; and
"Whereas, on the 20th day of October, 1910, the said board by resolution formerly authorized the president of said board to execute such an agreement as is necessary to make the said survey part of the lease and to identify it therewith:
"Now, therefore, be it known that we, W.V. Robson, as president of the said board, and S.L. Cronin, as the duly authorized agent of the said Oil Company, do hereby declare that the land embraced in the said lease is the land shown by the survey in heavy white lines on the blue print hereto attached and made by H.E. Barnes, civil engineer, and identified herewith by the signatures of the said Robson and the said Cronin; and that all of the land embraced within the said heavy lines was intended to be leased in the said instrument referred to, and is hereby leased under the terms and conditions as set out in the said instrument, whether the same are described in the said instrument or not; and the said plat is declared a part of said lease."
Within the time stipulated in the original lease, the lessee paid the lessor for the excess of 10.992 acres as shown by the survey. *341
On April 2, 1910, Miss L. Hanzen, S.W. Mason, D.P. Eubank, R.L. Stringfellow, and H.E. Barnes, having complied with the laws relating to the location of lands containing petroleum or other mineral oils under placer mining claims, gave notice that they had located, caused a survey to be made, and had taken possession of 87.09 acres of land described as lying in sections 3 and 4, township 20 north, range 16 west, in Caddo parish, La. On April 27, 1910, they leased these lands to E.H. Jennings, who, on January 6, 1911, assigned the lease to the Pure Oil Operating Company.
It appears, therefore, that the Pure Oil Producing Company held a lease on property apparently belonging to the Caddo levee board, and the Pure Oil Operating Company held a lease on property ostensibly belonging to Miss Hanzen and her associates. Subsequently both companies were absorbed by the Pure Oil Company, one of the defendants in this case.
In 1917, the United States government instituted suit in the District Court for the Western District of Louisiana against Miss Hanzen, her four associates, the Pure Oil Operating Company, and three other defendants for the annulment of the Hanzen mineral location and the mineral lease so far as they extended above 173.09 feet mean Gulf level, and for an accounting of the oil taken from said property. On August 4, 1919, judgment was rendered in favor of the plaintiff, decreeing lot 3 of section 3 and lots 3, 4, and 5 of section 4, township 20 north, range 16 west, containing 37.79 acres, to be the property of the United States and annulling the mineral location and the lease of said property. This judgment was affirmed by the Supreme Court of the United States. See Mason v. United States,
The wells, known, respectively, as Hanzen Nos. 2, 3, and 4, which produced the oil in dispute, were found to be on that part of the Hanzen mineral location below the 173.09 *342 contour line, and hence outside the limits of the high land claimed by the United States. The title to this strip of land, which was in the bed of the lake, was, necessarily, vested in the state of Louisiana by virtue of its sovereignty, and the property belongs to the state unless it has parted with its title by virtue of the certification of the state auditor and the register of the state land office to the Caddo levee board.
In the meantime, in April, 1919, the state of Louisiana sued the levee board for the recovery of that portion of the bed of Ferry Lake which had been leased to the Gulf Refining Company of Louisiana, and by an agreed enlargement of the pleadings the land in dispute here was included in that litigation. The suit was only partly tried in the district court of Caddo parish, where it was instituted, when it was settled by a compromise agreement which was reduced to writing and incorporated in a judgment rendered and signed by the district judge on November 14, 1921.
The Standard Oil Company of Louisiana, because of the uncertainty of the title, refused to pay for the oil produced on the land in dispute unless the Pure Oil Company would furnish an indemnity bond to protect it against any adverse claim of title to the land. The Pure Oil Company declined to furnish such bond, and brought suit in the United States District Court for the Western District of Louisiana for the value of the oil delivered to the Standard Oil Company and which had not been previously paid for. The state of Louisiana intervened in this suit, but its intervention was dismissed for lack of jurisdiction. The court held, however, that a sufficient showing had been made of an adverse title in the state to justify the withholding by the Standard Oil Company of payment for the oil until the state's claim of title had been settled. Later, the present suit was filed in the First district court of the parish of Caddo.
Plaintiff contends that the bed and shores *343 of Ferry Lake were certified, in error, to the board; that the lake bed and shores were in no sense lands within the purview of the statutes creating the levee board; that the certification of said lands was ultra vires and void; and that its nullity was recognized by the levee board and declared by the court in the judgment rendered and signed on November 14, 1921, hereinbefore referred to. The Pure Oil Company and the levee board contend that their lease contract included this land and the said judgment recognized their agreement. We are unable to agree with this contention. Our conclusion is that the lease of October 10, 1910, as supplemented by the notarial agreement of October 24, 1910, did not cover the strip of land in dispute here.
Manifestly, because of prior leases by the levee board, the parties were uncertain as to the extent of the unleased property owned by the lessor, and they therefore stipulated "that a survey should be made of the premises herein leased, by a surveyor to be agreed upon," etc. Mr. H.E. Barnes was agreed upon as the surveyor. He surveyed the land and made a plat thereof. This map or plat, which fully described the land embraced within the lease, was approved by both the oil company and the levee board and was attached to their supplementary agreement executed in notarial form on October 24, 1910, in which instrument "the said plat is declared a part of said lease."
It appears from the record that the same surveyor had previously surveyed the lands covered by the Hanzen mineral location. The south and west traverse line of his survey of the levee board lands coincided with the north and east traverse line of his survey of the Hanzen lands. The strip of property from which the oil in dispute here was produced is embraced within the survey of the Hanzen lands and not within the survey of the levee board lands.
On April 27, 1910, Miss Hanzen and her associates leased their property to E.H. *344 Jennings, who, on January 6, 1911, assigned his lease to the Pure Oil Operating Company.
It is clear that the parties contracted with reference to the survey which definitely established the boundaries of the leased premises. Having reduced their agreement to writing, and there being no ambiguity or uncertainty as to the nature, object, and the extent of the agreement, it must be presumed that the written document expresses the true and complete undertaking of the parties. Moreover, it is certain that the defendant Pure Oil Company was not misled either as to the terms or the extent of its lease contract with the levee board. Under that lease it went into possession of the property described in the plat attached thereto. It paid for, and its lessor received payment for, only the land shown on that map. It could not have intended to lease, and did not as a matter of fact lease, from the levee board the property on which it drilled the wells known as Hanzen's 2, 3, and 4, because that property was at the time under lease to Jennings whose rights it acquired within a few months after the execution of the lease with the levee board. The belief of all parties at the time these transactions were entered into was, evidently, that the title of the lands subject to the Hanzen lease had been originally in the federal government, and that neither the state nor the levee board had any interest therein. The Pure Oil Company had prepared and executed division orders in which it authorized the Standard Oil Company to pay the royalty on oil received from the Hanzen wells to Miss Hanzen and her associates. The levee board never received nor claimed any royalty except for the oil produced by the wells drilled on the lands embraced within its leases of October 10 and 24, 1910. The lands and leases thereon were held in this manner, and these dealings among, and this course of conduct of, all the interested parties persisted, for approximately 15 years. In fact, it was not until the present suit was instituted *345 the Pure Oil Company came to the conclusion, apparently, that the land which it held under the Hanzen lease was included in its lease from the levee board, when it offered for the first time to pay the said board for the increased acreage and a royalty on the production of the wells. This it could well afford to do, if by so doing it could defeat plaintiff's suit.
Since we have found that the land on which the Hanzen wells 2, 3, and 4 were not embraced with the terms of the lease from the levee board to the Pure Oil Company, the further question presented for decision is whether the land belonged to the levee board at the time the oil was extracted, thereby precluding any right of recovery for its value on the part of the state.
The question finds its answer in the admission by the parties and the judgment rendered and signed in pursuance thereof in the case of the present plaintiff against the Caddo levee board and the Gulf Refining Company, referred to supra. In that judgment the title of the state to the lands is recognized and the act of certification thereof dated July 6, 1901, from the state auditor and the register of the state land office is annulled. The judgment was not appealed from and is now final. It is therefore the law of the case. It concludes the levee board, and the Pure Oil Company, although not a party to the litigation, cannot champion the cause of the levee board, nor assert any rights under the reservations recited in the judgment, since its lease from that board did not include the land in controversy here. The judgment, in effect, decrees that the land was never embraced within the levee district and was always owned by the state. Furthermore, the certification by the register of the land office and the auditor to the levee board merely placed the property under the control of the levee board as a state agency for the constructing and maintaining of levees. The lands to all practical intents and purposes were always the property of the *346
state. State v. Grace,
The Pure Oil Company, in its answer, prays that, in the event of a recovery by plaintiff, there be deducted from the value of all oil for which said defendant may be held liable the total cost to defendant and to the companies through which it holds of producing and marketing the oil. We think they are entitled to this relief. Rosenthal-Brown Fur Co., Inc., v. Jones-Frere Fur Co. et al. (Nos. 26965, 27050, 27510 of our docket)
The Standard Oil Company called its codefendant, the Pure Oil Company, in warranty, praying that, in the event judgment for any amount be rendered against it in favor of plaintiff, it have judgment against its warrantor for a like amount.
The Pure Oil Company has admitted that it is bound in warranty to the Standard Oil Company of Louisiana, and has filed a stipulation in this court in which it has agreed that:
"If any judgment is ordered or decreed in favor of the plaintiff, the state of Louisiana, against the Standard Oil Company of Louisiana, defendant, the said defendant is in that event entitled to have judgment ordered or decreed in its favor in warranty against its codefendant, the Pure Oil Company."
For the reasons assigned, the judgment appealed from is set aside, and it is now ordered that there be judgment in favor of the state of Louisiana, plaintiff herein, and against the Pure Oil Company and the Standard *347 Oil company of Louisiana, defendants herein, in solido, in the full sum of $130,378.78, with legal interest on $56,157.21, thereof from June 30, 1921, until paid, and upon $74,221.57 thereof from September 30, 1914, until paid, and all costs of suit. It is further ordered that said judgment be subject to a credit in favor of the defendants of an amount equal to seven-eighths of the costs and expenses incurred in producing and marketing the oil in question, and that this case be remanded to the district court solely for the purpose of ascertaining and determining the amount to be so credited on the judgment. It is further ordered that there be judgment in warranty in favor of the Standard Oil Company of Louisiana against its codefendant, the Pure Oil Company, for the full amount for which it is herein condemned in solido with its said codefendant. It is further ordered that the intervention of the board of commissioners of the Caddo levee district be dismissed at its cost.
O'NIELL, C.J., and LAND and BRUNOT, JJ., dissent.
Dissenting Opinion
As I understand it, there never was any doubt in the minds of the members of the court that the lands from which the oil in dispute was produced were not embraced within the terms of the lease executed by the Caddo levee board to the Pure Oil Producing Company, and that it never was intended that they should be.
It may be true, as stated in the majority opinion, that the intention of the parties was to include in the lease all the lands owned by the levee board in sections 3 and 4 and not theretofore disposed of by it. But since the 55 acres upon which the wells here were drilled were already under lease to the Pure Oil Producing Company from Miss Hanzen and her associates, and since the Pure Oil Producing Company intended to pay and did pay all the royalties upon the oil taken from said wells to its lessors, it necessarily follows that it never contemplated paying them to the levee board, nor did the levee board contemplate receiving them. Therefore it is clear that neither the levee board nor the oil company contemplated contracting with reference to these particular lands, because both of them believed the lands were owned by Miss Hanzen and her associates, and they dealt with them as such. Civ. Code, art.
The rehearing granted herein, while unrestricted in terms, was restricted in fact to the sole question of whether the right of action against the Pure Oil Company was in the state or in the levee board, and, on the argument on rehearing, counsel for the respective parties were directed by the Chief Justice, speaking for the court, to confine their comments to that phase only of the case. In these circumstances, I respectfully maintain that all that portion of the majority opinion which is devoted to a discussion of the intention of the parties in regard to the lease and the reformation thereof is what logicians term petitio principii.
Apart from these preliminary observations, I shall confine my discussion to what I conceive to be the only issue now remaining in the case, i.e., Is the right of action against the trespassing oil company in the state or in the levee board?
It is asserted in the very beginning of the majority opinion that, under the pertinent statutes (Act 74 of 1892 and 160 of 1900) and the certificate, dated July 6, 1901, of the state auditor and the register of the state land office, every character of land belonging to the state within the district was *361
transferred to the Caddo levee board. Under the broad language of the statute this appears to be correct, and we have so held. See Ellerbe v. Grace,
It is said, also, in the majority opinion, that by reason of the certification the title and the possession of the said lands were vested absolutely in the levee board. In support of the statement a number of cases from our own jurisprudence and one decision by the Supreme Court of the United States are cited. A reading of these cases will show, however, that in only one of them was any such doctrine announced, viz., State v. Tensas Delta Land Co., in refusing a rehearing, *362
But the latest pronouncement by this court on the subject-matter of the relations between the state and its various levee boards appears in the recent case of State v. Grace.
In State v. Grace, supra, at pages 1043 and 1044 of the official report (109 So. 831), we said, ex industria, as follows, viz.:
"The Tensas Basin levee district was created and organized by the state as a means of discharging its duty to protect the lands in said district from inundation. The district is a state agency, created and continued in existence by the state with the foregoing purpose in view. The state, should it transfer the land to the district, including the mineral rights, in accordance with the grant made by it, would not be *363 parting with the property, * * * but would only be placing it under the control of one of its agencies for the purpose of constructing and maintaining levees. Theland would, to all practical intents and purposes,still be the property of the state." (Writer's italics.)
Any fluctuation in the jurisprudence is to be deplored. The public interest requires certainty and stability in the law. Decisions deliberately made after ample consideration of the points in issue should be adhered to. The doctrine announced in State v. Grace, supra, if not directly approved, is not controverted in the majority opinion. I believe, for my own part, that it is fundamentally sound. It is in line with what this court held in Fisher v. Steele, 39 La. Ann. 447, 1 So. 882 (cited and approved in State v. Heard, 47 La. Ann. 1697, 18 So. 746, 47 L.R.A. 512), that a "levee district" could not, by any reasoning, be considered as an association or corporation distinct from and independent of the state; that it is merely a state functionary exercising delegated powers as a part of the government. It is in line with a similar holding in State v. Capdervielle, Atchafalaya Land Co. v. Grace, Atchafalaya Land Co. v. Williams Cypress Co., and Atchafalaya Land Co. v. Dibert, etc., Cypress Co., referred to supra. It is also in line with the decision of the Supreme Court of the United States in Little v. Williams,
Since the Caddo levee district is a mere department of the state, created by the state as its agent for the construction and maintenance of levees to protect the lands within its limits from overflow, it is a matter of no moment, in my opinion, whether the title to the lands in question was in the state eo nomine, or in the name of the levee board. In the latter case, they were, as said in State v. Grace, supra, "to all practical intents and purposes, still be the property of the state." The state, under the statute creating the levee board, did not divest itself of control of the lands, because the levee board, as its creature, is *364 subject to its control by legislative enactment in the disposition of the lands transferred to it for levee purposes. Prior to the judgment annulling the certification of the lands, either the state or the levee board, as its agent, could have instituted the present suit. But certainly that right did not reside solely in the creature, the levee board, to the exclusion of the creator, the state. After the rendition of the judgment of nullity, it is clear that the state, and not the levee board, was the proper party to bring the suit. Had the levee board sued, there cannot be any doubt that it would have been met by an exception denying its right or capacity to institute the action and stand in judgment.
But, in my view, it is unimportant to the present issue whether the lands, on which the Hanzen wells were drilled, were actually transferred, or not, to the levee board by virtue of the certificate of the auditor and the register of the land office. That certificate was set aside and annulled by the judgment of the district court for the parish of Caddo. No appeal was taken from the judgment, which was rendered in 1921. It has long since become final, and, right or wrong, it is conclusive upon the state and upon the levee board, and upon any one claiming rights under either of said parties litigant.
It is said in the majority opinion that the judgment was a mere compromise judgment which did not declare the instrument of conveyance from the state to the levee board to be null ab initio. That, had the judgment so declared, it would have been contrary to the recent decision by this court in Ellerbe v. Grace, supra.
It is not wholly correct to say that the judgment was a compromise judgment. On its face, it appears to have been rendered in the ordinary course of the litigation. As a matter of fact, it was based upon evidence in part, stipulations in part, and consent in part. But conceding that it was wholly the result of a compromise, that fact does not alter its *365
legal effect. It was a judicial action and has the same force and effect as any other judgment. It is binding as such between the parties thereto and their privies. 34 C.J. 133; 3 Freeman on Judgments, p. 2775; Greenwood v. City of New Orleans, 12 La. Ann. 426; Dunn v. Pipes, 20 La. Ann. 276; Wells v. Files,
I must respectfully take issue, also, with the statement that the judgment did not declare the transfer by the state to the levee board void ab initio. If it did not do so in express terms, that is clearly its legal effect. The contention of the state in that litigation was that its officials who had transferred the property were without any right whatsoever to do so. The judgment recognized this contention to be correct. It does not purport to reconvey the property to the state, but annuls and sets aside the certification made by the officials in question. Their action was thus made void retrospectively, as well as prospectively. 3 C.J. 322. A void act is neither a law nor a command. It is a nullity, conferring no authority and offering no protection. Hopkins v. Clemson Agricultural College,
It may be that the judgment is contrary to our decision in Ellerbe v. Grace. But the points raised in that case were not set up in the case before the district court for the parish of Caddo, and, as I have heretofore remarked, since the judgment rendered by that court was not reversed nor annulled within the time prescribed by law, it has become final. Whether it is or is not contrary to the Ellerbe v. Grace decision can have no bearing upon the issue now before us.
In the majority opinion, reference is made to the rule that a right of action for damages for trespass already committed does not pass with a conveyance of the land trespassed upon without an express transfer or subrogation of such right. Seven cases from our jurisprudence are cited as supporting the rule. *366 And it is held that since the right of action for trespass against the Pure Oil Company was not "retroceded" to the state by the "compromise judgment," it remained with the levee board and is not in the state.
An analysis of the cited cases shows that they involve either sales and purchases of lease contracts, and for that reason, in my opinion, they are not appropriate to the present controversy. As I view it, there was no "retrocession" of lands by the levee board to the state. The levee board recognized that it never had received any title to the lands under the so-called certification, and it was so decreed by the judgment of the district court for the parish of Caddo.
The Pure Oil Company is not a third person quoad the land in question acquiring in good faith from the levee board any rights therein. It is nothing more nor less than a trespasser on lands which have been judicially declared, contradictorily with the levee board, to have always belonged to the state. Since the levee board, under the judgment, cannot assert that the right of action for the trespass is in it, I am unable to understand how the Pure Oil Company can do so.
There is also another reason why the state has a right of action against the oil company for its trespass. Act 258 of 1910 declares the beds and waters of the bayous, lagoons, lakes, bays, and rivers of the state to be the property of the state. This statute was in effect at the date of the original lease between the levee board and the Pure Oil Producing Company. At that time, the lands covered by the Hanzen lease were in the bed of Ferry Lake. So that, even if the certification in 1901 was valid, after the adoption of the statute any rights that the levee board might have had in the lands ceased to exist. Therefore, in 1910, and subsequently thereto, the oil taken from the lands was the property of the state and not of the levee board. When the Pure Oil Company committed its trespass, it was against the state, and not against the levee *367 board. The right of action against it for damages for the trespass was in the state and not in the levee board.
Act 3, Ex. Sess. of 1910, makes it the duty of the Attorney General, upon the request of the Governor, to represent the state or any political agency or subdivision thereof in any suit in any court involving title to any land or real property belonging to the state or any of its political agencies or subdivisions, whether the title to said land or real property is vested in or appears in the name of the state, or in the name of any of its political agencies or subdivisions. And under Act 86 of 1914, the Attorney General was directed by the Legislature to investigate and report to the Governor the claim of ownership by the Caddo levee board of the beds of certain navigable streams and lakes and of certain lands not subject to overflow.
The Act of the Ex. Sess. of 1910 was enacted after, and apparently to meet, the decision in State v. Tensas Delta Land Co., referred to supra. In any event, it, together with the other statutes hereinabove referred to, destroys the force and effect of that decision concerning the respective powers of the Governor, Attorney General, and the levee district as set forth in the liberal quotation from the case in the majority opinion herein.
For the foregoing reasons, as well as for the reasons set forth in the opinion on the original hearing, I respectfully dissent from the conclusions of the court as expressed in the majority opinion on the rehearing, and believe that our original decree should be reinstated and made the final decree in the case.
Addendum
In the application for another rehearing, the Attorney General cites Act 258 of 1910, p. 438, which declares:
*368"That the waters of and in all bayous, lagoons, lakes and bays, and the beds thereof, within the borders of the state, not at present under the direct ownership of any person, firm or corporation, are hereby declared to be the property of the state."
The statute is not at all pertinent to this case, because the land in contest is not — and was not in 1910 — in the bed of Ferry Lake. It is now and was then a part of the shore of Ferry Lake. Besides, Act 258 of 1910, by its precise terms, was said not to interfere with the "ownership of any person, firm, orcorporation," and hence the act did not revoke the title of any political corporation, such as a levee board. There is a proviso in the second section of the act, declaring that it should not interfere with the title "of any waters or the beds thereof" theretofore conveyed by the state "or its agencies," which was a recognition that the state's agencies, like levee boards, owned the beds beneath the bayous, lagoons, lakes, and bays within their territorial limits, respectively.
The Attorney General refers again, in the application for another rehearing, to Act 3 of the Extra Session of 1910, p. 6, and Act 86 (which was merely a Senate concurrent resolution) of 1914, p. 202, as if those statutes gave the Attorney General the right to sue in the name of the state on a cause or right of action belonging to a state agency. It is said that the act of the extra session of 1910 was passed because of our decision in State v. Tensas Delta Land Co.,
*369"That the subject-matter of this resolution be referred to the Attorney General of the state of Louisiana for his investigation and report to the Governor."
Surely that resolution did not purport to give the Attorney General the authority to sue in the name of the state on any cause or right or action belonging to a levee board or other subdivision or agency of the state.
Addendum
A majority of the members of the court have come to the conclusion that the judgment of the district court, rejecting the state's demand, is correct.
The suit was for $130,378.78, alleged to be the value of seven-eighths of the oil taken from three wells that were drilled and operated by the Pure Oil Company on land that belonged to the Caddo levee board when the wells were drilled and when the oil was produced. The land is on the shore of Ferry Lake, below or inside of the Gulf level elevation of 173.09 feet, established by the Kidder survey approved in 1915. As Ferry Lake was a navigable body of water when Louisiana was admitted into the Union, the land on which these wells were afterwards drilled became the property of the state in virtue of her sovereignty. State v. Bozeman,
The land was transferred to the Caddo levee board by an act of the Legislature, if not by the Act 74 of 1892, creating the levee district, surely by the Act 160 of 1900, extending the limits of the district and conveying to the levee board every character of land belonging to the state within the district. There is no dispute about that. See Ellerbe v. Grace, Register of the State Land Office,
*350"That in order to provide additional means to carry out the purpose of this act * * * all lands now belonging or that may hereafter belong to the state of Louisiana, and embraced within the limits of the levee district as herein constituted, shall be and the same are hereby granted, given, bargained, donated, conveyed, and delivered unto the said board of commissioners of the Caddo levee district," etc.
The statute then reserved to all persons whose lands within the district had been sold or forfeited to the state for nonpayment of taxes 6 months' grace in which to redeem their titles; and it was made the mandatory duty of the state auditor and of the register of the state land office thereafter to make instruments of conveyance to the levee board, in fee-simple title, of all of the state's lands within the district, viz.:
"After the expiration of the said 6 months it shall be the duty of the auditor and register of the state land office on behalf of and in the name of the state to convey to the said board of levee commissioners, by proper instruments of conveyance, all lands hereby granted or intended to be granted and conveyed to the said board whenever from time to time the said auditor or register of the state land office or either of them shall be requested to do so by the said board of levee commissioners or by the president thereof, and thereafter the said president of the said board shall cause the said conveyances to be properly recorded in the recorder's office of the respective parishes wherein the said lands are located and when the saidconveyances are so recorded the title to the said landswith the possession thereof shall from thenceforth vestabsolutely in the said board of commissioners, itssuccessors, or grantees." (The italics are ours.)
Accordingly, on the 6th of July, 1901, the state auditor and the register of the state land office signed and issued to the Caddo levee board an instrument of conveyance of the land on which the three wells were afterwards drilled by the Pure Oil Company, and the instrument of conveyance was immediately recorded in the parish of Caddo, where the land is situated. Thenceforth the title and possession of the land was vested absolutely in the levee board. As this court said in State v. Tensas Delta Land Co.,
"The Legislature vested the absolute title to the lands in controversy in the Board."
See, also, State ex rel. Levee Board v. Capdervielle,
By the Act 268 of 1908, p. 394, the board of commissioners of the Caddo levee district was authorized to lease the mineral lands within the district, on such terms and conditions as the board might deem best and for such time as the board might deem proper, provided the royalty to be received by the board should be not less than one-eighth of the oil or gas. Accordingly, on the 10th of October, 1910, the board entered into a contract purporting to lease to the Pure Oil Producing Company (predecessor of the Pure Oil Company), for a bonus of $100 an acre and the usual one-eighth royalty, all of the land owned by the board in the tract of 160 acres described as the W. 1/2 of S.W. 1/4 of section 3 and E. 1/2 of S.E. 1/4 of section 4, in T. 20 N., R. 16 W. The intention expressed in the contract was to lease all of the land which the board had not theretofore disposed of in the area lying below or inside of the mean Gulf level elevation, and therefore on the shore of Ferry Lake, in that subdivision of 160 acres. The lessee paid a bonus of $4,000, on an estimate of 40 acres, and it was stipulated that a survey should be made so as to determine the exact area below the Gulf level elevation, and that the lessee would add to the bonus paid, at the rate of $100 per acre, for any excess in the area over and above the estimate of 40 acres. At that time the exact location of the 173.09 feet elevation or contour line, which was afterwards established by the Kidder survey, was not known. The Kidder survey was not commenced until 1913 and was not completed until 1915. There *352 was no doubt or dispute, however, that the levee board owned all of the land up to — and only the land up to — the line which should mark the Gulf level elevation, wherever that line should be; and the intention of the parties to the contract was that the levee board should lease to the Pure Oil Company all land owned by the board in that 160-acre subdivision, which land, as both parties knew, extended up to a true and correct location of the Gulf level elevation line, wherever it should be. For the purpose of locating the line, the parties mutually selected the surveyor, H.E. Barnes. Not having the data or information on which Kidder afterwards based his survey, Barnes located the elevation line below the true and correct location of 173.09 feet, and thus included in the area of land leased by the levee board to the Pure Oil Company only 55.992 acres. The tract on which the Pure Oil Company afterwards drilled the three wells, which produced the oil which gave rise to this lawsuit, is the area lying between the elevation line erroneously located by the Barnes survey and the elevation line of 173.09 feet which was afterwards correctly located by the Kidder survey. The Pure Oil Company paid the levee board the additional bonus of $1,599.20 for the excess area of 15.992 acres at $100 per acre, and, of course, would have paid willingly for the greater excess in area if Barnes had not erred in his location of the boundary line. As the Pure Oil Company had also a similar lease — with the same royalty stipulation — on the adjacent high land, formerly belonging to the United States government, it made no difference to the Pure Oil Company where the elevation line dividing the high land from the levee board's land was located, except to determine who, of the two lessors, should receive the one-eighth royalty from any well drilled on either side of the line dividing the land of one lessor from the land of the other.
It cannot be doubted that, if this suit against the Pure Oil Company for trespass had been brought by the levee board, the *353
Pure Oil Company could demand a reforming of the contract of lease — or rather a conforming to the original contract — so as to include within the terms of the lease the land on which these three wells were drilled. Either party is always permitted, in a suit between the parties to a contract, to correct any error in the instrument purporting to evidence the contract, so as to make it express truly and correctly the intention of the parties. Levy v. Ward, 33 La. Ann. 1033; Vignie v. Brady Charpaux, 35 La. Ann. 560; Armstrong v. Armstrong, 36 La. Ann. 551; Dickson v. Dickson, 36 La. Ann. 872; Bryan v. Wisner, 44 La. Ann. 832, 11 So. 290; Mary E. Gladdish v. Leon Godchaux, 46 La. Ann. 1571, 16 So. 451; Robinson v. Atkins,
The Attorney General, in this suit on behalf of the state, charges that the Pure Oil Company was a mere trespasser on that part of the E. 1/2 of S.E. 1/4 of section 4 and W. 1/2 of S.W. 1/4 of section 3 which was omitted from the description of the land leased by the levee board to the Pure Oil Company by the error of Barnes, the surveyor. The authority of the Attorney General to bring the suit on behalf and in the name of the state — instead of leaving it to the levee board to assert whatever claim there may be against the Pure Oil Company for the oil taken from the land, and for which the lessor of the adjacent high land was paid the one-eighth royalty by mistake — is that, by a compromise judgment rendered by the district court of Caddo parish, on the 14th of November, 1921, in a suit filed by the Attorney General on behalf *354 and in the name of the state against the levee board, in April, 1919, the instrument of conveyance executed by the state auditor and the register of the state land office on the 6th of July, 1901, transferring this land to the levee board, was annulled, and the title to the land then reverted to the state. The judgment did not declare that the instrument of conveyance from the state to the levee board dated the 6th of July, 1901, was null ab initio. Here is the language in which the instrument of conveyance to the levee board was annulled, viz.:
"And as to said property, as to which the title to the state is hereby recognized, the act of certification, of date July 6, 1901, from the register of the state land office and the auditor of the state of Louisiana, as recorded in Conveyance Book 28, p. 329, Records of the Parish of Caddo, is hereby annulled and set aside."
If the district court of Caddo parish had decreed that the instrument of conveyance or certification, of date July 6, 1901, was null ab initio, the judgment would have been contrary to the recent decision by this court in Ellerbe v. Grace, Register,
"Act No. 160 of 1900, above mentioned, has placed the status of former state lands in the Caddo levee district beyond the domain of further controversy, whether that act be considered as a legislative interpretation of the grant intended by the act of 1892 or as an additional grant. If the former, then this authoritative declaration of the state's intention is binding upon the state's officers. Cf. State v. New Orleans City L.R. Co.,
104 La. 685 , 29 So. 312. And if the latter, then this new grant inured at once to the benefit of those who hold from the levee board; and the state and all state agencies are therefore forever estopped thereby from ever thereafter asserting title to the lands in the face *355 of the obligation of warranty resulting from such grant" (citing a long list of decisions).
It is true that, on account of the error made by the surveyor, Barnes, the Pure Oil Company had no lease on the land on which these three wells were drilled. But all of the oil which the state is suing for was produced before the land was reconveyed to the state by the compromise or consent judgment dated the 14th of November, 1921. That judgment did not purport to transfer to the state any right of action which the levee board might have had to sue the Pure Oil Company for trespass; and the judgment could not, and did not purport to, deprive the Pure Oil Company of the substantial defense which it would have if the levee board should sue the Pure Oil Company for trespass — to correct the error in the description of the land as surveyed by Barnes — so as to make the description conform with the original contract of the levee board to lease to the Pure Oil Company all of the land owned by the board within the 160-acre subdivision.
It is well settled that a right of action for damages for trespass already committed does not pass with a conveyance of the land that was trespassed upon, without an express transfer of or subrogation to the right of action for the trespass. Clark v. Warner Co., 6 La. Ann. 408; Payne v. James and Trager, 42 La. Ann. 230, 7 So. 457; Matthews v. Alsworth, 45 La. Ann. 465, 12 So. 518; Bradford v. Damare, 46 La. Ann. 1530, 16 So. 487; Pokorny v. Pratt,
Not only was there no transfer or subrogation to the state of any claim which the levee board had or might have had for any act of trespass theretofore committed on the land that was retroceded to the state by the compromise judgment, but the judgment itself shows affirmatively that there was no intention to transfer to the state any such *356 right of action. The judgment declared, first, that the instrument of conveyance to the levee board of the lands described in the judgment was thereby annulled and set aside; second, that the contracts theretofore entered into by the board, requiring an expenditure of approximately $1,000,000, and for which the board's future revenues from the lands were pledged, were recognized and ratified; third, that, in order to provide for the expenditures aforesaid, the board should have one-half of the royalties already accrued from leases theretofore made by the board, whether in bank or retained by the oil companies, up to and including the oil run during the preceding month, October, 1921, and that the state should have the other half thereof; fourth, that the levee board should have $500,000, payable out of one-half of the royalties accruing after the 31st day of October, 1921; fifth, that all leases theretofore granted by the levee board were thereby ratified and the rights and obligations of the board as lessor were assumed by the state, subject, however, to the board's right to one-half of the future royalties to the extent of $500,000, as aforesaid, and, in that connection, the plea which had been filed by the defendant Gulf Refining Company, to the effect that the obligations of the contracts of lease theretofore granted by the board should not be impaired in violation of section 10 of article 1 of the Constitution of the United States, was sustained; and sixth, that all demands of the state for royalties received by the board before the institution of the suit, and all demands for annulment or cancellation of leases theretofore made by the board, were thereby rejected. This last paragraph in the judgment plainly rejected any demand on the part of the state for any oil taken from the land before the institution of the suit, or for interference with any of the contracts of lease theretofore made by the board, viz.:
"It is further ordered, adjudged, and decreed that all demands on the part of the state of *357 Louisiana, plaintiff herein, whether in the original or amended petition, relating to the revenues received by the said board of commissioners of the Caddo levee district of Louisiana from any of the lands in controversy prior to the institution of this suit, as well as the demands herein made for the annulment or cancellation of said leases or other contracts made by said board, affecting the said property, be and the same are hereby rejected."
It will not do to say that the instrument of conveyance dated the 6th of July, 1901, signed by the state auditor and the register of the state land office, pursuant to section 2 of Act 160 of 1900, conveying this land to the levee board, merely placed the property under the control of the levee board as a state agency for the constructing and maintaining of levees. The Legislature itself declared, in the statute of 1892 and of 1900, that, when the instrument of conveyance was placed on record, the title to the land vested absolutely in the levee board, and this court has said the same thing in every one of its many decisions on the subject. It was also said in all of those decisions that the Legislature, having created the board and having granted the land to it, could revoke the grant at any time, but that it could not interfere with the rights of third parties resulting from their dealings with the board during its ownership of the land. The board is a state agency, of course, just as any other subdivision incorporated by an act of the Legislature is a state agency; but the board has the right to sue and be sued, and it alone must assert its rights of action. The Attorney General has no right to sue for and in the name of the state on a cause or right of action possessed only by the levee board. That identical question was propounded and decided against the state in the case of State v. Tensas Delta Land Co.,
"The argument that the said board is nothing more than a mere agency or instrumentality of the state, and that therefore the state may sue in every case where the said board might sue, contains a manifest non sequitur. Every city, town, and parish of the state is a mere *358 agency or instrumentality of the state; but no one would venture to say that the Attorney General could ignore the existence of these corporations and enforce, in the name of the state, any cause of action which any of them might have.
"The legislative control over corporations of the character of this levee board is much more complete than over municipal corporations proper and parishes — it made them, and can at any time abolish them, so long as the obligations of their contracts are not thereby impaired — but these corporations have their existence and exercise their functions by and under the Constitution and statutes of the state, and so long as these established laws remain in force it is they which must regulate the property and other rights of said corporations and their modes of action, and the disposition of their property, and their rights to sue and to be sued. If one of these corporations has a right of action, the proper functionary to enforce same is the governing body of the corporation, and not the Attorney General, or the State."
In refusing an application for a rehearing in that case, the court again said:
"The Legislature vested the absolute title to the lands in controversy in the board of commissioners of the Tensas levee district, with full power to sell the same on such terms as the board might deem proper. The Legislature also vested in said board full power to sue and be sued, and to stand in judgment, in all matters relating to their gestion and trust. * * *
"The General Assembly has the power at any time to authorize the Attorney General to institute actions for the use and benefit of the taxpayers and people of any particular levee district. But as the General Assembly has vested the power to sue and be sued in the board of commissioners of the Tensas levee district, and has vested no such co-ordinate power in the Governor or Attorney General, we are of the opinion that the institution of this suit in the name of the state is unauthorized."
The judgment of nonsuit against the levee board as intervener in this case, dismissing the intervener's demand for supplement of the bonus paid by the Pure Oil Company and for the one-eighth royalty, is correct, because the state, as plaintiff, did not claim either the bonus or the one-eighth royalty, and they were therefore not in contest. The state's claim was only for seven-eighths of the oil taken from the land. The judgment *359 is correct also in so far as it allows the intervener to recognize and affirm that the land, on which the three wells were drilled, was intended to be included in the lease to the Pure Oil Company, but was omitted through the error of the surveyor.
The judgment heretofore rendered by this court having been set aside by the granting of a rehearing, the judgment of the district court is now affirmed at appellants' cost. The right is reserved to the state to apply for a rehearing within the legal delay.
THOMPSON, J., dissents.
Addendum
The opinion and decree herein handed down were concurred in by only four of the Justices, viz., Justices ROGERS, OVERTON, ST. PAUL, and THOMPSON; the CHIEF JUSTICE and Justices LAND and BRUNOT dissenting therefrom.
The Pure Oil Company, one of the defendants, has moved to vacate and set aside the decree so rendered on the ground that Mr. Justice THOMPSON, one of the Justices concurring in said decree, was disqualified to take part in the case, thus leaving the court evenly divided and the decree void for want of concurrence therein by the number of justices required by law. Const. 1921, art. 7, § 4, p. 36.
The reason assigned for the disqualification of Mr. Justice THOMPSON is that Hon. Wood H. Thompson, Assistant Attorney *348 General of the state, who represented the state in this litigation, is the son of Justice THOMPSON, and that Act 203 of 1918, p. 380, amending article 338 of the Code of Practice, and repealing Act 35 of 1882, provides that one of the causes for which a judge or justice of the peace may be recused shall be: "(6) His being the father, brother, or son of any one of the attorneys employed in the case."
Where a party litigant invokes the strict legal rule as to recusation, this court must, of course, yield to the rigid provisions of the law. Beaulieu v. Furst, 2 La Ann. 46, 52, 53.
But such provisions must be applicable; and the statute above quoted has no application where the father, brother, or son of a judge is simply a public officer representing the state or a public body by virtue of his said office. Such an officer is notan attorney employed in the case; he is only exercising the functions imposed upon him by law, and appears before the courtnot as an attorney at law, but as an officer discharging his duty of representing the state or a public body before the courts.
True, such an officer is usually required as part of his qualifications to be a licensed attorney at law, but not always. See La. Const. 1868, art. 92. And in State ex rel, Duffel v. Marks, 30 La. Ann. 97, 113, where this court was sharply divided on the decree and all the judges assigned separate reasons for concurring or dissenting, yet they were unanimous in holding that one who had legitimately acted as district attorney without being a licensed attorney at law, had not thereby been "practicing law" (as an attorney at law) during that period. See Const. 1868, art. 84.
Our conclusion is that a judge is not required, or permitted, to recuse himself in a case wherein his father, brother, or son appears before him in his capacity of public officer representing the state or a public body; that such an officer is not "an attorney *349 employed in the case," within the meaning of the act above mentioned.
The motion to vacate is therefore denied.
THOMPSON, J., takes no part.