Frost-Johnson Lumber Co. v. Salling's Heirs

• Decision Date: 05 January 1920
• Docket Number: 22916
• Citation: 150 La. 756,91 So. 207
• Parties: FROST-JOHNSON LUMBER CO. v. SALLING'S HEIRS et al
• Court: Louisiana Supreme Court

91 So. 207

150 La. 756

FROST-JOHNSON LUMBER CO. v. SALLING'S HEIRS et al

No. 22916

Supreme Court of Louisiana

January 5, 1920

On Rehearing, May 2, 1921; On Second Rehearing, February 17 1922

Appeal from Twelfth Judicial District Court, Parish of De Soto; John H. Boone, Judge.

Suits by the Frost-Johnson Lumber Company against the Heirs of Lottie A. and Ernest N. Salling and others were tried together. Judgment for defendants overruling plaintiff's plea of prescription and rejecting plaintiff's demand in each case, and plaintiff appeals.

Judgments annulled, and decree entered determining the parties' rights.

Thigpen & Herold, of Shreveport, and Elmore P. Lee, of Mansfield, for appellant.

Stubbs Theus, Grisham & Thompson, of Monroe, for appellees Heirs and Legal Representatives of Lottie A. and Ernest N. Salling.

Hampden Story and Foster, Looney & Wilkinson, all of Shreveport, for appellee Atlas Oil Co.

Carroll & Carroll, of New Orleans, Wise, Randolph, Rendall & Freyer of Shreveport, Hudson, Potts, Bernstein & Sholars, of Monroe, Scarborough & Carver, of Natchitoches, McCoy & Moss, of Lake Charles, and Spencer, Gidiere, Phelps & Dunbar, of New Orleans, amicus curiae.

O'NIELL J. MONROE, C. J., SOMMERVILLE, J., dissents. PROVOSTY, J., concurs in the decree.

OPINION

The Pleadings.

O'NIELL, J.

Plaintiff, being the owner in possession of a large tract of land in the parish of De Soto, brought three jactitation suits against parties who claim ownership of the mineral oil and gas beneath the surface of the land and claim the right to enter upon the land and bore and explore for oil and gas. The complaint, in substance, is that the claim of each defendant is in its nature the assertion of a real right upon the land, and is therefore a slander of plaintiff's title.

The heirs and legal representatives of the deceased Ernest N. Salling and of his deceased wife, Lottie A. Salling, were made defendants in all three suits; the allegation being that they claimed ownership of the mineral oil and gas in and under the land, and had granted a mining lease of the property to the Consolidated Petroleum Corporation, of Wilmington, Del., to bore and explore for oil and gas. The Consolidated Petroleum Corporation was made codefendant in the first suit for having recorded the contract of lease from the Salling heirs. In the second suit one T. J. Lawrence was made codefendant for having obtained and recorded an assignment from the Consolidated Petroleum Corporation of the contract of lease from the Salling heirs. In the third suit the Atlas Oil Company, of Chicago, Ill., was made codefendant for having obtained and recorded an assignment from T. J. Lawrence of the contract of lease that he had acquired from the Consolidated Petroleum Corporation.

In the petition in each suit plaintiff expressly reserved the right to make appropriate answer in the event the defendants should convert the suit into a petitory action by asserting title to the gas or oil, or mineral rights.

Each of the defendants pleaded that the plaintiff was not in actual physical possession of the mineral rights, or the oil, gas or other minerals in the land, and therefore had no right to maintain the action for slander of title. Reserving the benefit of the plea, each defendant answered, denying that plaintiff owned any oil, gas or other mineral in the land, and alleging that all of the minerals were expressly reserved from the sale of the land by Ernest N. Salling and his wife to plaintiff's grantors of the land.

In answer to defendants' assertion of title to the oil and gas, in each suit, plaintiff pleaded the prescription of 10 years, liberandi causa, alleging that the reservation referred to, in the deed by Ernest N. Salling and his wife to plaintiff's grantors, was not a reservation of ownership of the mineral oil and gas itself, but the reservation of a real right, which, not having been exercised during 10 years, was forfeited by nonuser and lost by prescription.

The three suits were consolidated by consent of all parties. Defendants' exceptions to plaintiff's want of possession of the oil and gas and plaintiff's pleas of prescription were referred to the merits, by consent of all parties, without prejudice to either party, or waiver of either plea.

The suits having been tried together on the issues thus presented. judgment was rendered in favor of the defendants. overruling plaintiff's plea of prescription and rejecting plaintiff's demand in each case.

Plaintiff, prosecuting this appeal, relies only upon the plea of prescription liberandi causa.

It is conceded that these suits pertaining to the oil and gas, if any there be, in or under plaintiff's land, do not involve, and shall not determine or affect, the ownership of any other mineral in or under the land.

The Facts.

Ernest N. Salling and wife, being the owners of the property in fee simple, sold the land to E. W. Frost and E. A. Frost, on the 2d of July, 1903, with this reservation (preceding the description of the land), viz:

"Excepting and reserving unto the first parties [Ernest N. Salling and Lottie A. Salling], however, all minerals, coal, fossils and precious stones, in, upon or underneath the lands below described, together with all mining rights connected therewith, including the right to enter upon below-described lands, prospect for, dig and remove any and all minerals and precious stones, in, upon or contained in said lands, with the right to use so much of the said surface of said lands as may be necessary for such purposes; also excepting and reserving unto the first parties the exclusive right and privilege to enter upon the lands below described, or any part thereof, and bore, explore for gas and oil, and to utilize and sell gas and oil that may be found or discovered upon said lands, and to use such portions of the surface of said lands as may be necessary to carry on or conduct their oil and gas operations on said lands, and to carry and convey away from said lands such gas and oil."

Thereafter E. A. Frost and E. W. Frost organized the corporation styled Frost-Johnson Lumber Company, plaintiff in these suits; and, on the 14th of June, 1909, they sold the property to the corporation, without any reservation or exception, and without mention of any previous reservation or exception, of any minerals or mineral rights. E. A. Frost, however, was president of the corporation, and E. W. Frost was a stockholder.

Ernest N. Salling and wife having died, their heirs and legal representatives, on the 13th of February, 1917, made a grant of a mining lease on the property to the Consolidated Petroleum Corporation. The latter assigned the lease, on the 7th of March, 1917, to T. J. Lawrence, who, on the same day, assigned the lease to the Atlas Oil Company.

In April, 1917, the Atlas Oil Company erected a derrick on the land and began boring for oil and gas; whereupon these suits were brought to test the claim of the Salling heirs and their transferees.

No attempt had been made by or on behalf of Ernest N. Salling or his wife, or their heirs or legal representatives, or by or on behalf of any one claiming title from them, to exercise any mineral right reserved from the sale to E. W. Frost and E. A. Frost, until the Atlas Oil Company began operations, 13 years and 9 months after the sale of the land. In the meantime E. W. Frost and E. A. Frost and their transferee, the Frost-Johnson Lumber Company, had been continuously in physical possession of the land, as owners, paying taxes upon it, felling and removing the timber, and exercising all such rights of ownership, undisputed.

Opinion.

The question of plaintiff's possession of the oil and gas in or under the land, or of possession of the right to take whatever oil or gas might be in or under the land, was properly referred to the merits of the case, because that question, as presented by the pleadings, did not depend upon physical possession of the oil or gas separately or apart from the land itself, but depended upon plaintiff's right to the oil and gas as owner in possession of the land. The prescription relied upon by plaintiff being liberandi causa, not acquirendi causa, the question presented by the plea of prescription is not whether plaintiff has acquired by prescription any right to the oil or gas, but whether defendants have lost by prescription, or by nonuser during the period of 10 years, whatever rights Ernest N. Salling and his wife reserved with regard to the oil and gas. And the answer to that question depends upon a proper construction of the titles of the parties, respectively.

A person in possession as owner of land has a right of action for slander of title against any one who claims a right to minerals in or under the land, or who claims any real right upon the land. See Wilson v. Pierson, 143 La. 287, 78 So. 561, and De Moss v. Sample, 143 La. 243, 78 So. 482. And it is well settled that, when the question of possession, in a jactitation suit, does not depend upon actual occupancy or physical possession, but depends upon a legal conclusion to be derived from a proper construction of the titles, the question of possession is relegated to the merits of the case, or passes out of it; for it would be a begging of the question, in such case, to attempt to decide the question of possession as a preliminary oran independent question. See Perry v. Board of Commissioners of Caddo Levee District, 132 La. 415, 61 So. 511, and Slattery v. Arkansas Natural Gas Co., 138 La. 793, 70 So. 806.

As the ownership of corporeal property is never lost or forfeited by prescription liberandi causa, a decision of this case depends upon whether Mr. and Mrs. Salling reserved title to the oil and gas itself, if any...