Achee v. Caillouet , 197 La. 313 ( 1941 )

On March 7, 1917, Paul LeBlanc purchased from Albert Caillouet a tract of land situated on the east side of Bayou Teche, opposite the Village of Charenton, in the Parish of St. Mary. In the act of sale, Caillouet, the vendor, reserved an undivided one-half of the minerals in, upon or below the surface of the property sold. On January 27, 1921, Paul LeBlanc sold to Aristile Achee the property which he had purchased from Albert Caillouet. In the act of sale no mention was made of the reservation of mineral rights by Caillouet, nor did LeBlanc himself reserve any mineral rights.

On March 28, 1924, a mineral lease, in which the names of Aristile Achee and Albert Caillouet appear as lessors, was executed covering the property. The lease was in favor of Paul N. Cyr and was for a primary term of five years. On March 17, 1924, and again on May 14, 1925, the lease was amended, the instruments evidencing the amendments bearing the signatures of the lessors.

The wife of Aristile Achee died on July 25, 1930, and her estate, consisting of an undivided one-half interest in the property, was inherited by her six children.

Albert Caillouet died on September 28, 1932, leaving as his survivors a widow and seven children, three of whom were minors.

On February 17, 1932, Aristile Achee and his six children granted a mineral lease covering the property to C.H. Green and George T. Veeder. Under various assignments of this lease, the first mineral development and production occurred during the month of August, 1939. Prior to this, namely, on May 4, 1939, the widow and heirs of Albert Caillouet granted a mineral lease covering the property to the St. Mary Oil Company, Inc.

On November 22, 1939, Aristile Achee and his six children instituted this suit against the widow and seven children of Albert Caillouet and the St. Mary Oil Company, Inc., praying to be recognized as the owners of the minerals and mineral rights in and under the property acquired by Aristile Achee from Paul LeBlanc, and that the mineral lease granted by the widow and heirs of Albert Caillouet to the St. Mary Oil Company, Inc., be cancelled and erased from the records. The plaintiffs alleged that the mineral servitude reserved by Albert Caillouet was extinguished by the prescription of ten years liberandi causa. In the alternative, plaintiffs alleged that they had acquired title to the property, including all the minerals thereunder, by the prescription of ten years acquirendi causa.

Defendants filed an answer in the nature of a general denial, but as the case developed during the trial, they apparently relied upon their claim that the prescription pleaded by plaintiffs had been interrupted by the execution of the lease, bearing date March 28, 1924, in favor of Paul N. Cyr.

After the case had been submitted, but before judgment, Aristile Achee died. The succession was opened and his heirs were sent into possession of his estate. By proper motion, they were made parties plaintiff so far as the rights of their deceased father were concerned.

The trial judge rendered judgment for plaintiffs, decreeing them to be the owners of the minerals and mineral rights in, to and under the property described in the petition; decreeing that the mineral reservation made by Albert Caillouet in the act of sale to Paul LeBlanc on March 7, 1917, was prescribed, lost and extinguished for nonuser for a period of more than ten years; and decreeing that the mineral lease granted by the defendants, the widow and heirs of Albert Caillouet, in favor of their co-defendant, St. Mary Oil Company, Inc., be cancelled and the inscription thereof be erased from the conveyance records of the Parish of St. Mary. The defendants are appealing from the judgment.

Since the decision of this Court in Frost-Johnson Lumber Co. v. Salling's Heirs, 150 La. 756, 91 So. 207, it has been the settled jurisprudence of this State that a mineral reservation is in the nature of a servitude and is prescribed by nonuser for ten years.

It is not disputed that there was no mineral development or attempted mineral development on plaintiffs' land prior to the month of August, 1939, when mineral production was had under the lease granted to C.H. Green and George T. Veeder. Therefore, the mineral servitude reserved by Albert Caillouet on March 7, 1917, expired by limitation on March 7, 1927, unless plaintiffs have in some lawful manner interrupted, suspended, or extended the running of the ten-years prescription liberandi causa. This is the primary question presented for decision in the case.

Defendants contend that the mineral lease signed by Aristile Achee and Albert Caillouet on March 28, 1924, for a primary term of five years was a joint lease and that as such it constituted an acknowledgment of defendants' rights, thereby interrupting the prescription running in favor of Aristile Achee. In support of their contention, defendants rely upon the case of Mulhern v. Hayne, 171 La. 1003, 132 So. 659.

On the trial in the district court, defendants rested their case on the lease itself, objecting to the admission of parol evidence in connection with the lease. Their objection was referred to the merits. The evidence offered by plaintiffs was admitted subject to the objection.

The undisputed testimony in the record shows that at the time the mineral lease and its amendments were signed, Aristile Achee lived in St. Mary Parish and Albert Caillouet lived in Jefferson Parish. There was no consultation, understanding or agreement between Achee and Caillouet, neither knowing the other, relative to the lease or its amendments. The instruments were signed by the parties at different times and places, out of the presence of each other. They were not read to Achee, who was unable to read, being barely able to sign his name. Caillouet's name was not mentioned at any time, nor was it stated that any person other than Achee would be asked or permitted to sign the instruments. Achee did not know or contemplate that Caillouet was expected to sign the lease or would be asked to sign the lease. He did not learn that Caillouet had signed the lease until the year 1939 when he called on Mr. Himel, an attorney of Franklin, Louisiana, who owned a royalty interest, with reference to the development of the property because of production on the adjoining tracts.

In Bremer v. North Central Texas Oil Co., 185 La. 917,171 So. 75, this Court held that in order to interrupt the running of the ten years prescription of a mineral servitude for nonuser, there must be more than a bare acknowledgment. The acknowledgment must be accompanied by the intention of the parties making it to interrupt the prescription then running. Under this ruling this Court has sanctioned the admission of parol evidence to ascertain the intention of a landowner appearing in a mineral lease as a co-lessor with the mineral owner. Kennedy v. Pelican Well Tool Supply Co., 188 La. 811, 178 So. 359; English v. Blackman,189 La. 255, 179 So. 306; Hightower v. Maritzky, 194 La. 998,195 So. 518, 521.

In the Kennedy case, this Court declared what constitutes a joint lease for the purpose of acknowledgment. In that case, the plaintiff-landowners executed a lease and the defendant's name was inserted in the instrument after its execution by plaintiffs and out of their presence. Plaintiffs had no knowledge that the mineral owner would later be asked or permitted to sign the lease.

The case of English v. Blackman involved the execution of a lease by the landowner and the royalty owners, the term of the lease extending beyond the date on which the servitude previously granted expired. The defendants, royalty owners, contended that such a lease was an acknowledgment not only of the existence of their rights but also constituted an agreement that they would have further time within which to exercise their rights. In the Bremer, Kennedy and English cases, the Mulhern case was discussed and distinguished.

The Hightower case represents the latest expression of this Court on the question under discussion. The facts in that case are similar to the facts in this case, and one of the questions of law involved in both cases is the same. There, as here, the Mulhern case was relied upon by the mineral owner. This Court, in commenting upon the Mulhern case, declared: "That decision was not based upon the idea that the landowner, by joining in the lease with the holder of the mineral rights as a co-lessor, acknowledged the rights of the co-lessor and thereby interrupted the prescription." The Court then explained that the controlling feature in all such cases is the intention of the parties that they should be co-lessors, and thereby to suspend or extend the remaining part of the ten-year period of prescription. The Court found that neither of the leases was signed by the parties at the same time, and though the names of the co-lessors appeared in the written instruments, it being established that the landowner at the time he signed the instrument did not know or anticipate that the royalty owner would also sign it, re-affirmed the ruling announced in the Kennedy and English cases, namely, that parol evidence was admissible to show the intention of the landowner in executing a mineral lease as co-lessor with the mineral owner to recognize the latter's rights and interrupt the running of prescription. Because the evidence in the case failed to establish the intention of the landowner to do this, the Court rejected defendants' plea that the running of the prescription was interrupted by the execution of the instruments relied on for that purpose.

As we have stated, the only evidence offered by defendants in this case in support of their contention is the contract of lease itself. But there is nothing in that contract to show, or even to indicate, that Aristile Achee intended to interrupt the running of prescription in his favor. Under the facts disclosed, Achee by signing the lease did not intend to interrupt the running of the prescription which he has pleaded in this case. Since neither the mineral lease nor its amendments under review here were jointly executed, the Mulhern case and the other cases, including Brown v. Sugar Creek Syndicate, 195 La. 865,197 So. 583, cited by defendants, are not appropriate.

The fact that Albert Caillouet left three minor children at the time of his death did not have the effect of suspending the running of prescription in favor of Aristile Achee. Caillouet died on September 28, 1932, and since the mineral servitude created in his favor had expired by limitation some time prior to his death, the minority of his children can not affect the conclusion we have reached in this case.

The plea of estoppel filed by defendants after the submission of the case in the district court did not raise any new issue in the case. The plea merely reiterated defendants' contention that parol evidence was inadmissible to show that the mineral lease was not a joint lease.

It is not necessary for the Court to consider plaintiffs' alternative plea that they acquired title to the property, including the minerals, by the prescription of ten-years acquirendi causa.

For the reasons assigned, the judgment appealed from is affirmed.

O'NIELL, C.J., does not take part.

FOURNET, J., concurs in the result.

On Rehearing.