Elder v. Ellerbe

• Decision Date: 19 October 1914
• Docket Number: 20045
• Citation: 135 La. 990,66 So. 337
• Court: Louisiana Supreme Court
• Parties: ELDER v. ELLERBE et al

66 So. 337

135 La. 990

ELDER v. ELLERBE et al

No. 20045

Supreme Court of Louisiana

October 19, 1914

Rehearing Denied November 16, 1914

SYLLABUS

(Syllabus by the Court.)

The right of a possessor in good faith to reap the benefit of the fruits of the land until it is claimed by its owner does not permit such possessor to extract the mineral oil and gas from the land and retain the proceeds.

Hampden Story, of Shreveport, for appellant Producers' Oil Co.

Wise Randolph, Rendall & Freyer, of Shreveport, for appellants Ellerbe and Standard Oil Co. of Louisiana.

Farrar, Jonas, Goldsborough & Goldberg, of Shreveport, for appellant Ellerbe on application for rehearing.

John B. Files and J. H. Shepherd, both of Shreveport, for appellee.

OPINION

O'NIELL, J.

The plaintiff claims an undivided half interest in a tract of land described as the E. 1/2 of W. 1/2 of section 9, T. 21 N., R. 16 W., containing 160 acres, of which 135 acres is claimed by the defendant Ellerbe, and 25 acres is claimed by and in the possession of the defendant Producers' Oil Company. She also claims of the defendant Ellerbe, half of a certain bonus and of certain royalties received by him from the Standard Oil Company under a mineral lease.

The defendants' exception of nonjoinder of parties being sustained by the district court, the plaintiff filed a supplemental petition, making the Standard Oil Company a party defendant, as the lessee in possession of the 135 acres claimed by the defendant Ellerbe.

Judgment was rendered in favor of the plaintiff, recognizing her to be the owner of an undivided half of the entire tract of 160 acres, allowing her to recover from the defendant Ellerbe $ 10,125, being half of the bonus paid by the Standard Oil Company to Ellerbe for the mineral lease, and the further sum of $ 1,338.98, being half of the royalty collected by Ellerbe up to the time of the filing of this suit; and the right was reserved to the plaintiff to recover from the Standard Oil Company half of the royalties accruing thereafter. Judgment was rendered in favor of the Producers' Oil Company against Ellerbe, in warranty, for $ 666.67, being half of the purchase price of the 25 acres of the land in dispute. From this judgment all three defendants have appealed; and the plaintiff has answered, praying that the judgment against Ellerbe for $ 10,125, be increased to twice that sum.

This tract of 160 acres was purchased from the state of Louisiana by Ben Lewis under patent No. 630, dated the 11th of August, 1870. He sold it to C. W. Lewis and John H. Lewis jointly on the 26th of October, 1870. The plaintiff is the only surviving daughter and sole heir of C. W. Lewis, and there is no evidence of his having disposed of his undivided half of this land.

On the 2d of April, 1886, John H. Lewis sold, with other lands, the tract in dispute (of which he owned only an undivided half) to Leon M. Carter. On the 12th of April, 1889, Carter sold the tract in dispute to A. H. Leonard, along with other lands, approximately 2,200 acres, and certain property in Shreveport. On the 20th of May, 1898, Leonard reconveyed to Carter the tract in contest, along with various other properties. On the 30th of June, 1898, Carter sold the tract in dispute to the Merchants' & Farmers' Bank, with various other properties. On the 28th of December, 1908, the name of this institution having been changed by amendment of its charter to that of Merchants' & Farmers' Bank & Trust Company, the liquidator of the latter institution, A. H. Leonard, sold to the defendant Ellerbe the tract in contest, with various other lands. On the 13th of December, 1909, A. H. Leonard and Clarence Ellerbe sold to the Producers' Oil Company that portion of the land in controversy lying south of a line drawn parallel with and 825 feet from its southern boundary, containing 25 acres, for $ 1,333.33 cash. On the 11th of February, 1911, Clarence Ellerbe gave a mineral lease to the Standard Oil Company on the remaining 135 acres in the E. 1/2 of W. 1/2 of section 9 and 135 acres in the S. E. 1/4 of section 5, in the same township, for the cash consideration of $ 40,500 and a royalty of one-eighth of all the oil that might be extracted from the land by the lessee. The record discloses that the bonus was paid in the proportion of one-half for each tract of 135 acres, and that $ 2,677.89 had been paid as royalty when this suit was filed.

The property in dispute does not appear on the inventory in the succession of C. W. Lewis, which bears date the 16th of February, 1874. This omission may be due to the fact that at that time the land had little or no value. The purchase price of this tract with 480 acres more in the same township, in the sale from John H. Lewis to Leon M. Carter, was only $ 60, that is, less than 10 cents an acre. And it appears to have been given little or no value in the subsequent sales, that is, by Carter to Leonard, by Leonard to Carter, by Carter to the bank, and by Leonard, as liquidator of the bank, to the defendant Ellerbe. In fact it is admitted by all parties to this suit that the land in contest was not considered of sufficient value to justify the payment of taxes on it until oil was discovered in its vicinity.

The defendants rely entirely upon their plea of prescription of 10 years. After an exhaustive review of the testimony, the district judge concluded that the defendants had failed to prove that they and their authors had had continuous possession for 10 years, and he, therefore, overruled the plea of prescription. We have gone over the testimony carefully and find no error in his ruling. This property remained, until about three years prior to the filing of this suit, unfenced, wild land, not occupied except as a public cattle range. It was never assessed to Leonard or Carter or the Merchants' & Farmers' Bank or Merchants' &amp Farmers' Bank & Trust Company, and was only assessed to Ellerbe for the last three years prior to the...