Byrd v. Forgotson , 213 La. 276 ( 1945 )

Assuming for the sake of argument that a mineral interest is a servitude (the assumption being for that purpose only because I doubt seriously the correctness and soundness of our jurisprudence under which a mineral interest is held to be a servitude), I am of the opinion that the ten year non-user prescription has not been suspended as to the rights contested herein. The suspension is claimed under the provisions of Civil Code, Article 802, reading: "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 the others." Among the coproprietors or co-owners of the forty-acre tract involved in this controversy, admittedly there are no minors or other incapacitated persons.

The cases of Sample v. Whitaker, 172 La. 722, 135 So. 38; Ohio Oil Company v. Cox, 196 La. 193, 198 So. 902; State v. Fontenot,192 La. 95, 187 So. 66; Standard Oil Company of Louisiana v. Futral, 204 La. 215, 15 So.2d 65; and Hodges v. Norton,200 La. 614, 8 So.2d 618, cited in support of the majority holding, are not directly applicable here. In the first four cited cases the incapacitated persons owned fractional interests throughout the tracts of land involved. The case of Hodges v. Norton is distinguishable in that it in no manner concerned Civil Code Article 802; it presented only a question relative to the interruption of prescription by the exercise of the purported servitude.

For these reasons I respectfully dissent.