Campbell v. Pasternack Holding Co., Inc., 92-CC-3244

• Decision Date: 18 October 1993
• Docket Number: No. 92-CC-3244,92-CC-3244
• Parties: 128 Oil & Gas Rep. 501 Alma Dale CAMPBELL v. PASTERNACK HOLDING CO., INC., et al.
• Court: Louisiana Supreme Court

Page 477

625 So.2d 477

128 Oil & Gas Rep. 501

Alma Dale CAMPBELL v. PASTERNACK HOLDING CO., INC., et al.

No. 92-CC-3244.

Supreme Court of Louisiana.

Oct. 18, 1993.

Josiah W. Seibert, III, Smith, Taliaferro, Seibert & Purvis, Vidalia, for applicant.

Nathan M. Calhoun, Calhoun & Murray, Vidalia, Dewitt T. Methvin, Jr., Gist, Methvin, Hughes & Munsterman, Alexandria, Norman Magee, Ferriday, Harry Lossin, Sr., Jonesville, for respondent.

CALOGERO, Chief Justice. ^*

We granted plaintiff's writ to determine whether she has been improperly denied a right to partition by licitation property in which she has an undivided interest. The case presents two related issues. First, may a co-owner with perfect ownership partition by licitation property as to which another undivided interest has been bifurcated into usufructuary and naked interests. This issue requires us to revisit Pasternack v. Samuels, 415 So.2d 211 (La.1982). We will also reconsider Cahn v. Cahn, 468 So.2d 1176 (La.1985), which held that Civil Code article 543, amended in 1983 and legislatively changing the result in Pasternack, was not to be applied to co-owners who had acquired their property interests before the amendment.

The second issue is whether the same plaintiff co-owner, who has no attendant mineral rights, may partition her "surface" interest in the land only, by licitation, where one or more of the defendant co-owners has full interests in the land, including mineral rights.

Our ultimate determination, as is evident from the balance of the opinion, is that Cahn v. Cahn is to be overruled, that article 543 as amended applies prospectively to all co-owners, even those whose interests were acquired under pre-existing law and jurisprudence. The latter code article, as amended in 1983, governs this case and affords the plaintiff the relief she seeks, that is, partition by licitation of the property, excepting, and subject to, all of the mineral interests in the property.

The facts in this case are not in dispute and are essentially as follows. Plaintiff Alma Dale Campbell instituted this law suit on August 1, 1991, seeking partition by licitation of 2,800 acres of land located in Concordia Parish. Defendants included Pasternack Holding Co., Inc., and Joseph Pasternack, Jr., individually and as trustee of the trust established for the benefit of Joseph Pasternack III (by the last will and testament of Agatha K. Pasternack, wife of Joe Pasternack). The latter defendant filed peremptory exceptions of no right of action and no cause of action. ¹ Subsequently, defendants Betty Claire Pasternack Samuels and Harold Samuels filed similar exceptions. In the three sets of exceptions, the defendants asserted that plaintiff had no right and no cause of action to provoke a partition by licitation because plaintiff had perfect ownership in the surface of the land only, whereas the exceptors owned interests in the surface of the land and the mineral rights. In addition, exceptors alleged that the interest owned by one of the defendants was burdened by a usufruct, ² thereby destroying any commonality of interest between the plaintiff and at least one defendant, and that, accordingly, plaintiff should be denied a partition by licitation.

The trial court, without assigning reasons, overruled the peremptory exceptions. Defendants were granted a supervisory writ by the Third Circuit Court of Appeal. That court reversed the district court, noting that the lower court erred in failing to maintain defendants' peremptory exceptions of no cause and no right of action where one defendant's ownership interest was burdened by a usufruct. The court of appeal applied Pasternack and distinguished the case at bar from Devillier v. Devillier, 371 So.2d 1230 (La.App.3d Cir.1979).

Thereupon, the court of appeal relied on Cahn v. Cahn to avoid applying the amended Civil Code article 543. That article, amended to change the holding in Pasternack v. Samuels, specifically entitles a "person having a share in full ownership" to demand "partition of the property in kind or by licitation, even though there may be other shares in naked ownership and usufruct." In Cahn v. Cahn, the Court barred the application of the amended Civil Code article 543 against co-owners who had acquired their interest in land prior to the enactment of the article.

The court of appeal did not find it necessary to address the second issue--whether the plaintiff, who has no mineral interest in the property, may partition the co-owned property by licitation, where one or more of the defendants have full interests with mineral rights. Plaintiff, unsuccessful appellee in the court of appeal and relator here, sought a writ, which was granted by this Court.

The disputed property was originally acquired by Joe Pasternack on December 17, 1936, from Charles P. Alexander. By act of sale dated March 13, 1946, Joe Pasternack conveyed a one-fourth interest in the property to Abe Pasternack. By act of sale dated December 17, 1951, Joe Pasternack conveyed to John Dale, Jr., an undivided one-half interest in the property. The plaintiff's interest is derived exclusively from this latter acquisition by her ancestor, John Dale. Plaintiff Campbell, however, now owns her interest in the property without mineral rights, that interest being subject to outstanding mineral servitudes owned by third parties. ³ Conversely, defendants Pasternack Holding Co., Inc., Pot of Gold, Inc., Betty Claire Pasternack Samuels, and Harold Samuels own their interests in full ownership, including proportionate shares of the mineral rights.

In Louisiana, property may be owned in indivision by more than one person, each owning an interest in the whole. See Steele v. Denning, 456 So.2d 992 (La.1984); Tucker v. Kelly, 506 So.2d 730 (La.App. 1st Cir.1987). Yet, the Louisiana Civil Code and the jurisprudence of this state have long recognized that no co-owner "may be compelled to hold a thing in indivision with another unless the contrary has been provided by law or juridical act." La.Civ.Code Ann. art. 807 (West 1991).

The need to partition stems from the inconvenience of co-management, namely the requirement of unanimous consent of co-owners in managing commonly held property. See Andrew L. Gates, III, Partition of Land and Mineral Rights, 43 La.L.Rev. 1119 (1983); Jeanne M. Gravois, Comment, The Revision of the Louisiana Co-Ownership Law, 65 Tul.L.Rev. 1261 (1991). With certain exceptions, each owner has the right to oppose the use of the property by the other. See Steele v. Denning, supra. Consequently, co-owners who cannot agree on the use of the property are by the Civil Code specifically afforded the right to seek partition. Needless to say, then, partition is favored under Louisiana law and this Court's jurisprudence. ⁴ See Amerada Petroleum Corp. v. Reese, 195 La. 359, 196 So. 558 (1940); Gulf Refining Co. v. Carroll, 145 La. 299, 82 So. 277 (1919).

The right to partition rests on the parties holding interests in common. This commonality is the sine qua non for a co-owner's right in this regard. One of defendants' contentions in the district court, on which the court of appeal relied entirely, was that one defendant co-owner had only a naked interest and one defendant co-owner had only a usufructuary interest vis-a-vis plaintiff's perfect title, and that plaintiff was thus precluded from demanding partition, there being an absence of commonality of interests. Defendants relied on this Court's holding in Pasternack v. Samuels. ⁵ In Pasternack, the full owner of an undivided property interest was denied the right to demand partition by licitation where a co-owner had only a usufructuary interest. This Court based its decision in Pasternack on Civil Code article 543, adopted in 1976 as part of the revision of the property articles of the Civil Code. Civil Code article 543, before its amendment in 1983, provided that a

co-owner whether or not he is also a usufructuary of an undivided part of a thing may demand its partition in kind to the extent necessary to enable him to obtain the perfect ownership of a determined part. Partition by licitation is not allowed even though there is a person who is both a usufructuary and an owner.

The Court majority found the wording clear and applicable, not just where the person asserting the right to partition has no full commonality vis-a-vis the defendant, like a naked owner suing a perfect co-owner, but as well where that person has commonality vis-a-vis each defendant, like a perfect owner suing the naked and/or usufructuary owners.

That holding was not without question. The two dissenting justices and a third voted to grant a rehearing. The premise of the dissent was that the article was ambiguous, that it was meant to apply so as to prohibit partition by licitation only where the party seeking partition did not hold rights of the same nature in the same object with each defendant. The article's purpose was to prevent a usufructuary or a naked owner, acting alone, from affecting the interests of the other or forcing a full owner to dismember his ownership--not to prevent a perfect owner from partitioning property owned in common with her by naked owners and/or usufructuary owners. To allow otherwise would be to allow a co-owner to create a usufruct over an undivided interest in property in order to defeat a partition by licitation by a co-owner with perfect ownership who acquired the interest when the property was free of any usufruct. See Andrew L. Gates, III, Partition of Land and Mineral Rights, 43 La.L.Rev. 1119 (1983); Charles A. Snyder, Civil Law Property--Partition of Land Subject to a Usufruct, 24 La.L.Rev. 885 (1963); Christina Berthelot Peck, Note, Civil Code 543 and the Problem of Partition by Licitation of Property Subject to a Usufruct, 43 La.L.Rev. 787 (1983); B.J. Pistillo, Jr., Note, Civil Law Property--Civil Code 543 and the Prohibition of Partition by Licitation of Property...