Ohio Oil Co. v. Ferguson , 213 La. 183 ( 1946 )

I do not subscribe to the reasons supporting that portion of the majority opinion treating of the so-called Toklan Royalty Corporation mineral interest.

As pointed out by the writer in the case of Byrd v. Forgotson,213 La. 276, 34 So.2d 777, "When oil was first discovered in this state and the interests of those asserting rights therein became controversial, the courts decreed that the sale of a mineral was nothing more than the granting of a right or privilege to go upon the land for exploration and exploitation purposes, classified such a right as being in the nature of a servitude, and applied the provisions of the Revised Civil Code relative to servitudes in determining the rights of those claiming such an interest."

According to the Revised Civil Code, a servitude can only be created by the owner of the land. Article 729; Hodges v. Norton,200 La. 614, 8 So.2d 618. Such rights "are not susceptible of division, either real or imaginary * * *." Article 656; Lee v. Giauque, 154 La. 491, 97 So. 669; Patton v. Frost Lumber Industries, Inc., 176 La. 916, 147 So. 33; Connell v. Muslow Oil Co., 186 La. 491, 172 So. 763; Ohio Oil Company v. Cox, 196 La. 193, 198 So. 902; Hodges v. Norton,200 La. 614, 8 So.2d 618. The right "is extinguished by the nonusage of the same during ten years" (Articles 789, 3546; Frost-Johnson Lumber Co. v. Salling's Heirs, 150 La. 756, 91 So. 207; Nabors Oil Gas Co. v. Louisiana Oil Refining Company,151 La. 361, 91 So. 765; Wemple v. Nabors Oil Gas Co.,154 La. 483, 97 So. 666), but "If among the coproprietors there be one against whom prescription can not run, as for instance a minor, he shall preserve the right of all of the others." Article 802, Sample v. Whitaker, 172 La. 722, 135 So. 38, (though this article and the jurisprudence thereunder has since been superseded by Act No. 232 of 1944).

It is difficult for me to follow the reasoning in the majority opinion to the effect that although a servitude is indivisible and the drilling on any part of the land affected thereby preserves the whole servitude (Lee v. Giauque, 154 La. 491, 97 So. 669; Sample v. Whitaker, 172 La. 722, 135 So. 38; Patton v. Frost Lumber Industries, Inc., 176 La. 916, 147 So. 33; Connell v. Muslow Oil Co., 186 La. 491, 172 So. 763; Ohio Oil Co. v. Cox, 196 La. 193, 198 So. 902; Hodges v. Norton, 200 La. 614, 8 So.2d 618), the advantages flowing therefrom are nevertheless susceptible of division and that one who acquires a portion of a servitude affecting a surface area that has not been developed within the ten-year period, even though development was had on the remaining portion thereof, loses his rights by prescription.

It is equally difficult for me to reconcile the holding in this case with the decision of this court in Hodges v. Norton,200 La. 614, 8 So.2d 618, 621, where we squarely held that the conveyance by Selby to Norton of a mineral interest in and to 220 acres of a 480-acre tract acquired by Selby did not have the effect of dividing the servitude and that the drilling on a portion thereof other than the part conveyed to Norton within the 10 year prescriptive period preserved the whole servitude although more than 10 years had elapsed since the original servitude was created. In that case the court said most specifically: "The land upon which the servitude was established is one continuous tract. There was but one indivisible servitude and the mere fact that the mineral owners conveyed undivided interests in the right to others did not have the effect of dividing it. * * * The reason for this is that a servitude can only be created by the owner of the land. Therefore, when the widow and children of E. W. Hodges conveyed an undivided one-fourth interest in the minerals to Selby, the servitude covering the entire land remained intact. Likewise, when Selby conveyed to Norton a one-fourth interest in the minerals in and under 220 acres of the tract, the servitude was not divided and exercise of the servitude on any portion of the land preserved it as to the whole."

In the majority opinion it is stated that this decision is reconcilable with the judgment rendered in the instant case "by the fact that in Hodges v. Norton, Mrs. Augusta Ann Hodges and her 10 children, who were co-lessors with the landowner, Andrew J. Hodges, in the lease under which the drilling operations were conducted, retained a one-fourth mineral interest in the whole 440 acres conveyed by the original mineral servitude. In the instant case there was no such joint ownership of the mineral rights by Clark and the Toklan Royalty Corporation."

It is difficult for me to see how the fact that Mrs. Hodges and her 10 children (Selby's authors in title) retained an interest in the entire servitude would have the effect of preserving the rights acquired by Norton, for it was not that fact that had the effect of interrupting the prescription then running but instead the fact that the servitude was indivisible and that exercise of the servitude by the drilling on a portion thereof, although not on that part affected by the interest acquired by Norton, had the effect of preserving the servitude as to the whole.

Nor can I find any basis for the statement in the majority opinion that "The decision in Spears v. Nesbitt et al., 197 La. 931, 2 So.2d 650, is a precedent for the instant case," (meaning the holding in the majority opinion here), as is also the holding in the companion case of Robinson v. Horton, 197 La. 919, 2 So.2d 647, 648, for a mere reading of these cases will show that the divisibility of a servitude was not at issue in either of them and that the expression quoted in reliance from the Spears case was merely used in explaining the intention of the parties in that case in executing a unitization contract pooling all of their interests for development purposes.

Nor is there any basis for the statement that it was held in the Robinson case that the prescription running against the Trinity Company's servitude lying in the western half of the section was interrupted by the drilling operations on another portion of the land affected by the lease. On the contrary, we specifically stated it was not necessary to pass on that question because we maintained the contention of the defendants that "since the plaintiff entered into a joint lease with them, pooling her mineral interests with theirs and specifically agreeing that each should receive a pro rata share of the royalty that might be due from any portion of the land, irrespective of where the oil or gas was found, they are entitled to their share of the royalty due out of the oil produced from plaintiff's property under the terms of the lease, i. e., according to their interest as it appears in proportion to the entire mineral acreage, regardless of whether or not the well is on the property affected by their servitudes," declaring, "They have contracted; they are bound by their contract; and the question of whether the servitudes,owned by the defendants in these two cases at the time of theconfection of the contract, were actually used by drilling isimmaterial." (Italics mine.)

However, since a majority of the court in applying the second paragraph of Article 803 of the Revised Civil Code have construed the same, when read in connection with other articles of the Code, to mean that even though a servitude is indivisible, nevertheless the advantages that flow therefrom may be divided by the owner thereof and that so divided a portion not developed prescribes in ten years, I am concurring in the results reached for the reason that in granting a rehearing in the case of Byrd v. Forgotson, 213 La. 276, 34 So.2d 777 handed down on February 19, 1945, where this identical issue was raised and decided to the contrary, it was agreed that a rehearing would be held up in the instant case pending a decision in the Byrd case on rehearing so as to afford to the litigants and to all other parties who might be interested in the matter, an opportunity to present their views to the court.

For these reasons I respectfully concur.