DocketNumber: Civ. A. No. 3321
Citation Numbers: 99 F. Supp. 766
Judges: Dawkins
Filed Date: 9/17/1951
Status: Precedential
Modified Date: 11/26/2022
This is an action to cancel whatever rights the defendant company may have in the minerals of a certain tract of land which it conveyed to the ancestor in title of the plaintiffs more than twenty-five years ago. The conveyance reserved the minerals for a period of twenty-five years and as long thereafter as they were produced. Defendant moved to dismiss the complaint for failure to state a claim entitling petitioner to the relief sought'.
By whatever name or form one conveys or reserves the rights to minerals in land, a servitude alone is acquired or retained, entitling him to go upon the land and explore therefor and, if found, to produce them on the terms and conditions stipulated. It is impossible to thus acquire the minerals separate and apart from the soil. Frost-Johnson Lumber Co. v. Salling’s Heirs, 150 La. 756, 91 So. 207. By
In this case, the period stipulated was, as stated, twenty-five years, but the plaintiff makes no mention of this excess of some fifteen years over the permissible time provided by the Civil Code. The complaint does allege that the twenty-five years had expired, when this suit was filed, without any bona fide effort to exercise the servitude. The delay could be prolonged or extended only by good faith efforts at development within the primary period, and in view of the charges contained in the complaint,, the motion to dismiss will be referred to the merits, leaving the issues to be decided upon the evidence which is submitted at the trial.