Webb v. Franks Inv. Co.

• Decision Date: 29 October 2012
• Docket Number: Nos. 47,321–CA, 47,322–CA.,s. 47,321–CA, 47,322–CA.
• Citation: 105 So.3d 764
• Parties: John Creighton WEBB, Jr., et al., Plaintiffs–Appellants v. FRANKS INVESTMENT CO., et al., Defendants–Appellees. Eric W. Allen, et al., Plaintiffs–Appellees v. Chesapeake Louisiana, LP, et al., Defendants–Appellants.
• Court: Court of Appeal of Louisiana — District of US

105 So.3d 764

John Creighton WEBB, Jr., et al., Plaintiffs–Appellants

v.FRANKS INVESTMENT CO., et al., Defendants–Appellees.

Eric W. Allen, et al., Plaintiffs–Appellees

v.Chesapeake Louisiana, LP, et al., Defendants–Appellants.

Nos. 47,321–CA, 47,322–CA.

Court of Appeal of Louisiana, Second Circuit.

Oct. 29, 2012.

Downer, Huguet & Wilhite, LLC, Shreveport, LA, by Philip E. Downer, M. Amy Burford McCartney, for Appellants, John Creighton Webb, Jr., et al.

Liskow & Lewis by Jamie D. Rhymes, April L. Rolen–Ogden, Lafayette, LA, Jason P. Bergeron, Baton Rouge, LA, for Third Party Appellee, Petrohawk Properties, LP.

Wiener, Weiss & Madison, Shreveport, LA, by John M. Frazier, M. Allyn Stroud, Kathryn M. Smitherman, for Appellee, Parish of Caddo.

Bradley, Murchison, Kelly & Shea, LLC, Shreveport, LA, by Joseph L. Shea, Jr., Stephen C. Fortson, Malcolm S. Murchison, for Appellees, Franks Investment Co., LLC and Twin Cities Development, LP.

Baker Donelson Bearman Caldwell & Berkowitz, PC, New Orleans, LA, by Kenneth M. Klemm, Laurie D. Clark, Paul L. Peyronnin, for Appellee, Chesapeake Louisiana, LP.

Jones, Walker, Waechter, Poitevent, Carrére & Denégre by Michael B. Donald, Nicole M. Duarte, for Appellants, Chesapeake Louisiana and Huddleston Energy Reserves, LLC.

Wiener, Weiss & Madison, Shreveport, LA, by John M. Frazier, M. Allyn Stroud, Kathryn M. Smitherman, for Intervenor Appellee, Parish of Caddo.

Davidson, Jones & Summers, APLC, Shreveport, LA, by Randall S. Davidson, Grant E. Summers, William L. Hearne, Jr., for Appellees, Eric Allen, et al.

Before BROWN, CARAWAY, MOORE, LOLLEY, and SEXTON (Pro Tempore), JJ.

BROWN, Chief Judge.

[2 Cir. 1]These consolidated cases arise out of disputes over the mineral rights in two separate tracts of land in Caddo Parish, Louisiana. In both cases, in the early 1900s, a strip of land was dedicated for a public road. Both tracts were bisected by the roads. The ownership of the roadbeds is critical in determining who now owns the minerals underlying the roads and whether the mineral servitudes have prescribed through non-use. The district court consolidated the two cases and heard arguments on all motions for summary judgment pertaining to the ownership of the roadbeds. The trial court rendered separate opinions, and found, as a matter of law, that Caddo Parish owned both roadbeds. Thus, the mineral servitudes on both tracts were divided. The trial court rendered partial summary judgments in both cases, designated them as final judgments and expressly determined that there was no just reason for delay. La. C.C.P. art. 1915 B(1). This appeal followed. We reverse, render and remand.

Discussion

“It is relevant to note that prior to the advent of the mineral industry in Louisiana, the subject of public ownership of dedicated property was important only insofar as it governed the use to which dedicated property could be put.” Garrett v. Pioneer Production Corp., 390 So.2d 851, 855 (La.1980). The dedications in these cases were made in 1913, 1914, 1924, and 1928. Today, these tracts are in the Haynesville Shale, and there are large bonuses and royalties at issue.

[2 Cir. 2]The Webb Tract and Flournoy–Lucas Road

The Webb case involves a strip of land across a 1,750–acre tract in south Caddo Parish. On September 11, 1913, J.W. Railsback executed a standard form dedication (“the 1913 dedication”) with the preprinted language, “I ... do hereby dedicate to the public use for a public road, the following described land,” followed by a handwritten description of a 25– to 50–foot strip of land, “part of what is known as the Lucas–Forbing Road[,]” under which appears the preprinted statement, “The said property to be used for public road purposes only.”

On June 14, 1914, F.F. Webb executed an identical standard form dedication (“the 1914 dedication”) with a handwritten description of a 25–foot strip running diagonally across the lots described in Sections 4 and 5, T 16 N, R 13 W.

On February 22, 1924, F.F. Webb executed yet another standard form dedication (“the 1924 dedication”) with a typewritten description which “supercedes [sic] part of the previous deed[.]” The strip of land described in these dedications is now known as Flournoy–Lucas Road, which runs east-west across the middle of the tract.

In May 1979, Webb's successors partitioned the tract but retained the minerals; wells drilled north of Flournoy–Lucas Road have been maintained without any 10–year lapse. By cash deeds in 1985 and 1997, Franks Investment acquired mineral rights and surface rights, in the tract, and leased them to Twin Cities Development, which subleased to Chesapeake. These entities (“the Franks defendants”) maintained that the 1913, 1914, [2 Cir. 3]and 1924 dedications conveyed to Caddo Parish full ownership of the roadbed of Flournoy–Lucas Road, thus splitting the mineral servitude pursuant to La. R.S. 31:73. They contended that operations conducted north of Flournoy–Lucas Road did not interrupt prescription as to the land south of the road; in essence, that the mineral servitude affecting the land south of the road prescribed for nonuse. Webb's successors countered that Caddo Parish had only a right of passage or servitude that did not divide the tract. Thus, operations north of the road maintained the mineral servitude to the south.

The Allen Tract and Blanchard–Furrh Road

The Allen case involves a strip of land across a 295–acre tract north of Shreveport. Jacobs Land Company is the common ancestor in title for all parties. On January 31, 1928, Jacobs Land Company executed the same standard form dedication as in the Webb case (“the 1928 dedication”) with the same preprinted language, “I ... do hereby dedicate to the public use, for a public road, the following described land,” followed by a typewritten description of a 100–foot wide strip traversing the tract, “known as the Blanchard–Furrh Road [,]” creating a northwest and southeast portion. Finally, the form provided, “The said property to be used for public road purposes only.”

In 1991, Jacobs Land Co. sold the tract but retained the minerals; Allen and 42 others are the current surface owners. In 2003, Jacobs Land Co. sold the mineral rights to Huddleston Energy Reserves, which later (after the announcement of the Haynesville Shale) leased the minerals to [2 Cir. 4]Chesapeake. Allen and the other surface owners, however, maintained that the 1928 dedication conveyed to Caddo Parish full ownership of the roadbed of Blanchard–Furrh Road, thus splitting the mineral servitude.

Applicable Law

A.N. Yiannopoulos, Property § 96, in 2 Louisiana Civil Law Treatise (4th ed.2001) wrote:

Gradually, it became settled that the public may acquire in Louisiana an interest in the land on which a road is built or in the use of a road in a variety of ways. Thus, the public may acquire land or a servitude for the construction and maintenance of a public road by one of the methods of the Civil Code by which ownership or servitudes are acquired, including purchase, exchange, donation, expropriation and prescription. Most frequently, however, the public acquires an interest in a road by dedication.

The dedication of private property to a public use may be accomplished in a number of ways. Sometimes perfect ownership of the land passes to the public body; sometimes only a servitude is established in favor of the public. At issue in these consolidated cases is whether a servitude or fee title was given in the formal dedications of the roads. This will determine who owns the minerals underlying the roads and on each side of the roads. These dedications were all on a standard preprinted form used by the Caddo Parish Police Jury and were executed in 1913, 1914, 1924 and 1928. The parties are in agreement that these were formal dedications to the Caddo Parish Police Jury (now Caddo Parish Commission) for road purposes.

In each of the dedications, the preprinted form states: “I ... do hereby dedicate to the public use, for a public road, the following described land,” [2 Cir. 5]followed by either a handwritten or typewritten description. Finally, the form provides, “The said property to be used for public road purposes only.”

The plaintiffs in the Webb case and defendants in the Allen case point out that the granting of the dedications were voluntary, that no compensation was given, that they specifically limited the purpose for which the property could be used and contained no language conveying fee title to the Parish. On the other hand, the proponents of public fee ownership claim that the absence of any language in the instruments to the effect that the grantor retained ownership or that only a servitude was granted vest the Parish with full ownership of the property. In short, the grantors of the dedication would require a written clause in the deed that specifically conveys ownership to the Parish, while the other side would require the grantors to have a written reservation of ownership or specify that only a servitude was given. In this case, the instruments in question have no language either conveying or reserving title to the property.

In Hatch v. Arnault, 3 La.Ann. 482 (1848), the supreme court was faced squarely with the issue and held that the public has merely a servitude on the soil on which the road is built. The court grounded its opinion on Article 654 of the Louisiana Civil Code of 1825, which is the same as Article 658(2) of the 1870 Code.

Article 658(2) (1870) provided that “the soil of public roads belongs to the owner of the land on which they are made though the public has the use of them.” In 1978, C.C. Article 457 was enacted. The redactors comments state that this article was based on articles 704 through 706, and [2 Cir. 6]658(2) of the Louisiana Civil Code of 1870 and “[I]t does not change the law.”

The question is whether the dedicating instruments granted fee title to the Parish or just a servitude.

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