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

• Decision Date: 02 May 1921
• 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

May 2, 1921

On Second Rehearing, February 17, 1922

Original Opinion of January 5, 1920, Reported at 150 La. 756.

MONROE C. J. PROVOSTY, J., concurs. O'NIELL, J., DAWKINS, J dissents.

OPINION On Rehearing.

Statement of the Case.

MONROE C. J.

On July 2, 1903, Mr. and Mrs. Salling, authors in title of defendants herein, sold to E. W. and E. A. Frost, authors in title of plaintiff, some thousands of acres of land, with a certain exception and reservation. Six years later (June 16, 1909), an instrument was recorded in De Soto parish, where the lands are situated, whereby the Frosts sold them, with full warranty and no mention of any exceptionor reservation, to the Frost-Johnson Lumber Company, a corporation of which E. A. Frost was, and has continued to be, president, and E. W. Frost was, and has continued to be, a director; and on February 28, 1913, that company, through E. A. Frost, president, sold a small tract of the land to Green Jackson, and thereafter sold other tracts to other persons, with no exceptions or reservations or references thereto in the titles; after which, at intervals, the tracts so sold were repurchased by the company, the last repurchase having been made on March 20, 1917.

In the meanwhile the Sallings had died, and in February, 1917, their heirs and legal representatives had entered into what is called an "oil and gas lease," whereby they had "demised, let, leased," etc., all the oil and gas underlying the land in question, with the rights of ingress, egress, use, etc., that are customary in such contracts, to the Consolidated Petroleum Corporation, its successors and assigns, which corporation had assigned the lease to T. J. Lawrence, by whom it has been assigned to the Atlas Oil Company; and on June 26, 1917, that company was engaged in drilling one or two wells on the land for oil and gas, when plaintiff brought three actions in jactitation of title, alleging ownership and possession of the land and slander of title by the Salling heirs and representatives and the Consolidated Petroleum Corporation, by the parties first mentioned and T. J. Lawrence, and by said parties and the Atlas Oil Company, respectively, in claiming ownership of the underlying oil and gas and attempting to lease the same for the development of those minerals, in obtaining and causing to be recorded as valid an oil, gas, and mineral lease upon said property belonging to petitioner, and in entering upon the lands and drilling a well for oil and gas, thereby disturbing petitioner's possession.

Exceptions were filed by some of the defendants to the jurisdiction of the court, ratione personae, and by all of them to the right of the plaintiff to bring the suits, on the ground that it was not in possession of the property the title to which was alleged to be slandered; which exceptions were referred to the merits, by consent and without prejudice.

Defendants answered, affirming the validity of the Salling title and lease and of the various acts charged against them, and plaintiff thereupon pleaded the prescription of 10 years, liberandi causa; the three suits were consolidated for the purposes of the trial; there was a hearing, which resulted in a judgment overruling the plea of prescription and rejecting plaintiff's demands; and plaintiff prosecutes this appeal.

Defendants' exception and reservation and plaintiff's plea of prescription read as follows:

Exception and reservation:

"* * * Excepting and reserving to the first parties, however, all minerals, coal, fossils and precious stones, in, upon or underneath the lands * * * described, together with all mining rights connected therewith, including the right to enter upon * * * described lands, prospect for, dig and remove any and all minerals and precious stones, * * * with the right to use so much of the said surface of the 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, * * * or any part thereof, and more, 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."

Plea of prescription:

"* * * That all the rights reserved by the vendors * * * were real rights in said lands, or servitudes therein; that no attempt has been made, within 10 years from the date of said deed, to exercise any of said rights and the same are now barred by the prescription of 10 years, liberandi causa, which prescription plaintiff now pleads in bar of any rights of the defendants and as perfecting the absolute and unconditional ownership of plaintiff in all of said property."

The petitions complain of action by the Salling heirs in regard to an "oil and gas lease," and of action by the other defendants in regard to an "oil, gas, and mineral" lease, but the lease itself covers only oil and gas, and it is conceded that no question as to rights concerning any other minerals is here involved, although, as may be observed, the prescription is pleaded "in bar of any right of the defendants, and as perfecting the absolute and unconditional ownership of plaintiff in all of said property."

In support of that plea, as applied to the respective claims of the litigants to rights in or to oil and gas, plaintiff's counsel argue, in their original brief, that defendants' exception and reservation is twofold, to wit:

"(a) Of 'all minerals, coal, fossils and precious stones,' etc.; (b) 'of the exclusive right and privilege to enter and bore for oil,' and 'to utilize and sell the same'; that whatever reservation was made with reference to oil or gas necessarily grows out of the second clause, separated from the first by the conjunction 'also'; * * * that it is not necessary to resort to the rule ejusdem generis in connection with the coupling of 'coal, fossils and precious stones' with 'all minerals,' in the first clause of the reservation, although, if that clause stood by itself, the authorities are that it would be limited by such association and by the particular nature of the auxiliary rights granted to such substances, which are applicable only to the digging of solid minerals. * * *

"The reservation as to oil and gas therefore stands alone, for, purposely, it has been inserted as a distinct reservation, because, apparently, at the early date at which this instrument was executed the parties did not know whether oil or gas would be legally considered as 'minerals,' and hence made a separate and distinct reservation of the same, so as to avoid any doubt or ambiguity. To determine, therefore, what rights of the vendor remained after the deed as to oil and gas, we can look alone to the language of the reservation affecting this particular substance. That reservation, as we have seen, is entirely different from the one relating to other forms of minerals. It is 'the exclusive right and privilege to enter upon the lands below described * * * and bore, explore for gas and oil, and to utilize and sell gas and oil that may be found or discovered.'

"The terms themselves, therefore, of the reservation, or exception, demonstrate that the vendors did not attempt to reserve a corporeal property, if such were possible, but that they stipulated, and therefore reserved, only the sole and exclusive right to go upon the lands, to drill the same for oil, and to take away the oil so found and dispose of it as owners."

Neither of the exceptions filed by defendants has been urged as such in this court, but as expressive of plaintiff's position concerning its possession of the land as a condition to its right to maintain this action, and concerning the bases of the action and plea of prescription, we make the following excerpts from the same brief, to wit:

"It is apparent that, the object of the dispute being the oil and gas in the property, the plaintiff being, concededly, in possession of the land and claiming therewith the entire title to land and minerals, defendants setting up ownership in the latter [italics by court], the question of possession, raised by the exception, necessarily depends upon, and must await determination of, title. For, if plaintiff has full and complete ownership and possession of the surface, it possesses ad inferno, ad coelum; if defendants can be said to own minerals, plaintiff's possession of the surface is not possession of the minerals and consequently affords no basis for this suit. * * *

"The prescription pleaded is not that acquirendi causa, and consequently the case presents no question of adverse possession.

"The plea distinctly, and in terms, sets up a prescription as a bar to defendant's right; that is to say, a prescription liberandi causa. * * * Under the terms of the act itself, all that was attempted to be reserved was a real right. * * * It is not necessary now to discuss the effect of the reservation as to solid minerals; * * * discussion * * * at this time would be rather academic, for the petition complains only of defendant's assertion of claim to the oil and gas, and the heirs and representatives of the Sallings * * * claim, in their answer, 'to be the owners of all oils and gases lying in and under the lands described in plaintiff's petition.' The prescription of the right so asserted, plaintiff standing on the proposition that it was a real right in its property, is the basis of this suit.

"If the Sallings had stipulated a reservation of 'all the oil and gas...