Arent v. Hunter , 171 La. 1059 ( 1930 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] On February 6, 1917, S.D. Hunter and W.B. McCormick acquired from Union National Bank, of Monroe, La., 2,019.57 acres of land situated in Ouachita parish, La., known as the Seale Plantation.

On July 14, 1917, Hunter and McCormick granted to Producers' Oil Company an oil, gas, sulphur, and mineral lease on five noncontiguous parcels of said plantation, the total area burdened with the lease being 929.50 acres.

On October 24, 1917, Hunter and McCormick sold 1,916.73 acres of the property to H.H. Shackelford, F.S. Brown, and John F. Irvine, reserving, however, in the deed, the minerals, oil, and gas under the surface of the land together with certain rights thereon for mining and development purposes. The acreage conveyed by this deed included the five tracts described in the grant to Producers' Oil Company.

On May 19, 1919, Shackelford, Brown, and Irvine, sold the property, subject to all the rights, etc., reserved in the deed from their vendors, to E.I. Coleman.

On June 2, 1919, Coleman sold the property, exclusive of the reserved mineral, oil, gas, and rights upon the land, to the plaintiff in this suit.

The Producers' Oil Company assigned its mineral oil and gas lease, affecting the five noncontiguous parcels of land, mentioned supra, to the Texas Company, a Texas corporation, which corporation assigned the lease, with all of its rights thereunder, to the Interstate Natural Gas Company, Inc., of Delaware.

In addition to the ownership of 1,916.73 acres of the Seale Plantation, exclusive of the minerals, oil, and gas on and under the surface of the soil, plaintiff, subsequent to the date of his purchase of the land, alone, acquired the minerals, oil, and gas beneath the surface of parcels of his land other than the five tracts affected by the lease granted to the Producers' Oil Company. Plaintiff sold a half interest in these minerals, etc., but, by amicable partition with his co-owner, he reacquired the sole ownership of the oil, gas, and minerals under the surface of one-half of said lands. These transactions have no bearing upon the issues of the case, but are mentioned because they appear in the transcript.

It is admitted that the Union National Bank had, and conveyed to Hunter and McCormick, a perfectly good and valid title to the property, and the record does not disclose that the validity of any subsequent transfer of the land, including the deed to the plaintiff, is questioned. It appears that the plaintiff went into actual possession of all the property he acquired under his deed from E.I. Coleman, and it is admitted that at the time of the filing of this suit and for more than one year previous thereto he and Guy O. Barr, respectively, were in the actual possession of the parcels of the property described in articles 1 and 3 of plaintiff's petition.

The plaintiff alleges that he is the owner, under a title translative of the property, of the land described in his petition, and of the gas, oil, and minerals beneath the surface thereof; that the defendants are slandering his title by claiming to be the owners and lessees, respectively, of the oil, gas, and minerals beneath the surface of certain parcels of his land, and by the recordation of six, specifically described, instruments in the office of the clerk of court and ex officio recorder for the parish of Ouachita, state of Louisiana. The prescription of ten years liberandi causa is invoked in the petition as against the defendants' asserted oil, gas, sulphur, and mineral rights under the reservation in the deed from Hunter and McCormick to Shackelford, Brown, and Irvine, and under the lease from Hunter and McCormick to Producers' Oil Company, and the two respective assignments and amendments of that lease.

During the progress of the trial the prescription of ten years liberandi causa was reiterated in a separate, special, amplified plea.

S.D. Hunter, W.B. McCormick, Producers' Oil Company, Texas Company, and Interstate Natural Gas Company, Inc., were cited as defendants. Hunter and McCormick, jointly, Texas Company and Interstate Natural Gas Company, Inc., respectively, filed answers, in which they denied the plaintiff's ownership and possession of the land and oil, gas, and mineral rights described in the petition; denied slander of plaintiff's title; denied that prescription had run against their mineral rights; alleged the interruption of prescription by the timely drilling of a producing gas well on the land, and by recitals in the six recorded instruments mentioned supra; and converted the suit into a petitory action by alleging ownership of the property sued for. Hunter and McCormick plead estoppel to plaintiff's demands. This plea is based upon plaintiff's alleged acknowledgment of these pleaders servitude upon the land and their title to the oil, gas, and minerals herein sued for. The case was heard upon these issues and judgment was rendered in favor of the plaintiff overruling Hunter and McCormick's plea of estoppel; maintaining plaintiff's plea of prescription liberandi causa except as to the particular parcel of land on which the Texas Company drilled a producing gas well; ordering the cancellation of the six recorded instruments mentioned supra, in so far as they affect the lands described in the judgment, other than the parcel on which the Texas Company drilled a producing gas well; and decreeing plaintiff to be the owner of the oil, gas, and minerals under said lands. All of the defendants who answered the petition appealed. The plaintiff has answered the appeal and prays that the judgment be amended so as to reserve in favor of the Texas Company only ten acres, or, at most, only one hundred and sixty acres of land surrounding the producing well drilled by that company, and, as thus amended, that it be affirmed.

At the outset we will say that the right to extract minerals from the ground is a real right or servitude which is lost by non-use for ten consecutive years. Keebler v. Seubert,167 La. 901, 120 So. 591; Lee v. Giauque, 154 La. 491, 97 So. 669.

The trial judge correctly found that plaintiff's alleged acknowledgments of a servitude in favor of Hunter and McCormick on portions of the Seale Plantation other than the land leased to Producers' Oil Company was not an acknowledgment of a servitude or right, in their favor, upon that particular land, or of their ownership of the oil, gas, and minerals beneath its surface, and, as this servitude and the ownership of the oil, gas, and minerals under this land are the rights and property plaintiff is suing for herein, he properly overruled the defendants' plea of estoppel.

"An estoppel must be certain to every intent, and is not to be taken by argument or inference." Leeds Co. v. Hardy, 44 La. Ann. 556, 11 So. 1, 2.

"Estoppel is not favored in law, and should not be permitted, except in clear cases." Hornor v. McDonald, 52 La. Ann. 396, 27 So. 91, 95.

In disposing of Hunter and McCormick's claim of ownership of the oil, gas, and minerals involved in this suit the trial judge says:

"They parted with title to the minerals under the land involved in this suit prior to their sale of the land to Shackelford, et als., and have never reacquired title in any manner whatever. At least it has not been shown in this case."

In sustaining plaintiff's ownership of the minerals under the land he sold to Guy O. Barr, the trial judge says:

"Plaintiff claims some mineral rights in and under land which he does not own. At one time he owned the land but sold it to Barr and subsequently purchased the mineral rights of Barr. This land is a portion of the same land leased by Hunter and McCormick to Producers Oil Company already discussed herein, and by reason of his acquisition of Barr's rights and by reason of the defendants, as plaintiffs in a petitory action, having failed to establish their title, plaintiff's demands should be sustained."

It is admitted that from September 10, 1917, the date of the lease from Hunter and McCormick to Producers' Oil Company, until the early part of April, 1929, neither did the lessee or either of its assignees make any attempt, whatever, to drill for oil or gas or to exercise any mineral right on the whole or any part of four of the five noncontiguous tracts of land affected by that lease.

It is admitted that in 1918 the Texas Company located, completed, and capped a producing gas well on one of the five noncontiguous tracts of land, containing 300 acres, at a point 100 feet west and 1,197 feet south of the northeast corner of section 45, township 19 north, range 3 east. The trial judge held that the drilling of this well preserved to the lessee and its assignees, under the grant from Hunter and McCormick to Producers' Oil Company, a servitude upon this 300 acres of land. From that grant we excerpt the following clause:

"If, in the exercise of the rights herein granted, the said lessee shall sink a well or shaft and discover oil, gas or sulphur in paying quantities in or under the above described land, then this lease shall remain in full force and effect for ten years from such discovery, and as much longer as oil, gas or sulphur shall be produced therefrom in paying quantities, the lessee shall be exempt from loss or forfeiture of this lease, in whole or in part, except after judicial ascertainment that the lessee has failed to perform its duty and discharge its obligations hereunder, and a reasonable opportunity thereafter to prevent such loss or forfeiture, and in event of final loss orforfeiture there shall be reserved to the lessee each producingwell or mine with ten acres of land surrounding the same to bedesignated by the lessee." (Italics by the court.)

Under the quoted clause of the grant, the land to be reserved to the lessee, if there be a forfeiture of the lease, is limited to ten acres.

It appears that Hunter and McCormick, after their sale of the land to Shackelford, Brown, and Irvine, attempted to amend their grant to Producers' Oil Company. At that time, they had no interest whatever in the land and no act of theirs could enlarge the rights of their lessee and its assignee with respect to the land. We therefore think that the servitude reserved as a result of the completion of a producing gas well by the Texas Company should be limited to ten acres of land surrounding the well to be designated as provided for in the lease. We have disposed of this point apparently out of the proper sequence of the opinion for the reason that it is the only point upon which we disagree with the conclusions of our learned brother of the district court, from whose opinion we quote, with approval, the following:

"If the defendants are plaintiffs' in a petitory action, they must recover on the strength of their own title. Now, on which title do defendants rely? The Texas Company must rely on its title to the oil as assignee of the Producers Oil Company; Interstate Natural Gas Company must rely on its title to the gas as assignee of the Texas Company. Hunter and McCormick have according to the record, disposed of all of their right, title and interest, with reference to this particular land, except royalties on minerals produced, and the record fails to show any subsequent acquisition by them.

"We are not dealing with separate fees in the same land, on the contrary we are dealing with servitudes. Without trying to explain the law which provides that the owner of an estate encumbered with one servitude may impose on it other servitudes of any kind, provided they do not affect prior rights, we lay down the proposition that two servitudes, * * *, for the purpose of reducing the same mineral to possession, cannot both be exercised at the same time. The one is opposed to the other, * * *. Therefore we cannot agree that the overlapping servitude of Hunter and McCormick was saved from the operation of the law of prescription by use of the servitude in favor of Producers Oil Company by its assignee, the Texas Company."

It is admitted that, except as to the gas well drilled and capped by the Texas Company on section 45, township 19 north, range 3 east, more than ten years elapsed between the date of the grant from Hunter and McCormick to Producers' Oil Company and the date this suit was filed. Defendants claim, however, that prescription was interrupted by certain stipulations in the acts of sale from Hunter and McCormick to Shackelford et als., and from Coleman to Arent. The trial judge quotes the stipulations and correctly says:

"We consider them as notices on the part of the vendors for the purpose of limiting their warranties. We cannot construe these stipulations as being in themselves reservations of the mineral rights from the new sale; neither can we construe them to be new reservations of the mineral rights, in favor of the party who had already reserved them from the sale of the land. These vendors never did own the mineral rights."

For the reasons stated the judgment is amended by limiting the area of land reserved to the Texas Company or its assignee to ten acres of land surrounding the gas well located 100 feet west and 1,197 feet south of the northeast corner of section 45, township 19 north, range 3 east, Ouachita parish, La., and as thus amended, it is decreed that the judgment be affirmed at appellants' cost.

O'NIELL, C.J., is of the opinion that the judgment of the district court is correct and should be affirmed.

On Rehearing.