Harwood Oil & Min. Co. v. Black

• Decision Date: 07 November 1960
• Docket Number: No. 44753,44753
• Citation: 124 So.2d 764,240 La. 641
• Court: Louisiana Supreme Court
• Parties: HARWOOD OIL & MINING COMPANY v. Alfred S. BLACK et al.

Page 764

124 So.2d 764

240 La. 641

HARWOOD OIL & MINING COMPANY v. Alfred S. BLACK et al.

No. 44753.

Supreme Court of Louisiana.

Nov. 7, 1960.

Rehearing Denied Dec. 12, 1960.

Gold, Hall & Skye, Alexandria, for defendants-relators.

Sanders & Long, Jena, for plaintiff-appellee.

VIOSCA, Justice.

We granted certiorari to review a judgment of the Court of Appeal for the Second Circuit (113 So.2d 80) holding that a mineral lessee is the owner of an estate within the meaning of Article 699 of the LSA-Civil Code which provides that the owner whose estate is enclosed may claim the right of passage on the estate of his neighbor to the nearest public road, railroad, tramroad or water course--a ruling which is contrary to the rationale of our decisions in Reagan v. Murphy, 235 La. 529, 105 So.2d 210; Arnold v. Sun Oil Company, 218 La. 50, 48 So.2d 369, and the cases cited in those opinions.

Plaintiff, Harwood Oil & Mining Company, a Colorado corporation doing business in Louisiana, alleges that it is the owner of an oil, gas and mineral lease covering and affecting the stream bed of Castor Bayou in the Northwest Quarter of Northeast Quarter (NW 1/4 of NE 1/4), Section Twenty-six (26), Township Ten (10) North, Range One (1) East, LaSalle and Winn Parishes, Louisiana; that Castor Bayou is a navigable stream which was navigable in 1812 and its bed is owned by the State of Louisiana; that the defendant Alfred S. Black, individually and as trustee is the owner of a mineral lease from the Tensas Basin Levee Board covering the property adjacent and contiguous to Castor Bayou; and that plaintiff is the holder and owner of a surface lease on the same property executed by the Tensas Basin Levee Board which lease grants to plaintiff the right to locate equipment on said property for the purpose of directional drilling into the bed of Castor Bayou. The surface lease which is annexed to the petition and made part thereof specifically provides that '* * * this lease is in no manner or form to be construed as an oil, gas and mineral lease of to confer any rights granted a Lessee under an oil, gas and mineral lease the sole purpose being to allow Lessee to locate the wells on Lessor's lands because of the impossibility or impracticability of locating the said well sites on the banks or bed of Castor Creek'.

Plaintiff further alleges that it commenced directional drilling operations on the property leased by it from the Tensas Basin Levee Board; that defendant has obstructed plaintiff's free right of passage and of way to and from its drilling locations on the banks of Castor Bayou by erecting a gate and locking same, thus preventing plaintiff from using a road across the above described property as well as a road along the East bank of Castor Bayou, both of which roads are marked on a map annexed to and made part of the petition; that the road along Castor Bayou was built by the defendant and fronts on Castor Bayou and is a public road within the meaning of LSA-R.S. 48:491; that plaintiff is entitled to access to the banks of Castor Bayou and to the public road thereon and that there is no other way of passage to this road other than through the road which traverses the property of the Tensas Basin Levee Board.

Plaintiff prays that defendant be restrained and enjoined from obstructing and/or preventing plaintiff's free right of ingress and egress and use of the roads in question.

As the defendant is an absentee, a curator ad hoc was appointed to represent him, but he later made personal appearance through his own counsel in the Court of Appeal and this Court. The district court issued a temporary restraining order as prayed for.

Defendant through the curator ad hoc filed an exception of no cause or right of action which was overruled by the court. For answer defendant denies that plaintiff is the owner of an oil, gas and mineral lease on the bed of Castor Bayou; admits that defendant is the owner of a mineral lease on the adjacent land; admits the execution of the surface lease to plaintiff but denies its validity; admits erecting a gate across the road traversing the land in question, alleging that the road is the private property of the defendant constructed at his own expense and that plaintiff has no right whatever to use same; denies that Tensas Basin Levee Board is the sole owner of the land referred to and denies the navigability of Castor Bayou. Defendant further alleges that H. L. Hunt and the estate of Lyda Bunker Hunt are the owners of a one-half undivided interest in said tract of land and that defendant secured his mineral lease from all of the co-owners, whereas plaintiff received its surface lease from one of the co-owners only. Defendant prays that plaintiff's demands be rejected and that the suit be dismissed.

At a pre-trial conference the district court ruled that this 'proceeding would be limited to right of passage of plaintiff over the privately constructed road of defendant, as substantially shown on plat annexed to plaintiff's petition'. In view of this ruling counsel for both plaintiff and defendant entered into a stipulation as to the pertinent facts of this issue. It is stipulated that plaintiff owns an oil, gas and mineral lease covering that portion of the bed of Castor Bayou adjacent to Lot No. 2 of Section 26, Township 10 North, Range 1 East in LaSalle Parish, Louisiana, but the validity of the lease owned by plaintiff is not admitted; that defendant is the owner of an oil, gas and mineral lease covering Lot No. 2 of Section 26, Township 10 North, Range 1 East, LaSalle Parish, Louisiana, and has been operating oil wells thereon for several years; that plaintiff has made surface locations on land covered in the lease owned by the defendant for the purpose of the purported drilling and completion of oil wells in a directional manner under the bed of Castor Bayou; that defendant has constructed with his own funds a road traversing Lot 2 of Section 26, Township 10 North, Range 1 East, which intersects a road constructed by him along the bayou; that plaintiff has used the road without the consent of the defendant and has paid nothing for cost of construction or use of same, and that prior to the temporary restraining order issued herein the defendant erected a gate across the entrance thereof and prevented plaintiff from having access thereto. It is admitted that no material damage has been suffered by plaintiff and no claim for damage will be made, the only question being one of right of passage. The stipulation is silent as to the navigability of Castor Bayou.

There was judgment in the district court granting a permanent injunction prohibiting defendant from interfering with the plaintiff's use of the roads. On appeal the Court of Appeal affirmed this judgment but amended it to the extent of reserving defendant's right to claim, by appropriate action against plaintiff, reimbursement for such damages as may result from plaintiff's use of the roads constructed at defendant's expense.

On application of defendant we granted a writ of certiorari.

In this Court counsel for defendant strenuously urges that the exception of no right of cause of action should be maintained. For purposes of the exception all well pleaded facts in the petition must be taken as true. If the petition sets forth a right and a cause of action in any respect, the exception must be overruled. For reasons set forth hereafter in this opinion, we find that the petition does set forth a right of action in one respect and for that reason the district judge was correct in overruling the exception.

On the merits we must consider the rights of plaintiff in three respects: (1) its right, if any, as a mineral lessee of the bed of Castor Bayou to claim a right of passage across the adjoining property; (2) its right, if any, as surface lessee of the adjacent property to litigate with the mineral lessee of the same property the right to use the mineral lessee's roads to plaintiff's well sites established for directional drilling; and, (3) its right, if any, as a member of the public to use as a public road the road constructed by defendant along the banks of Castor Bayou.

The Court of Appeal in affirming the judgment of the district court bases its ruling squarely upon the provisions of Article 699 of the LSA-Civil Code. The Court of Appeal says (113 So.2d 82):

'As to the merits we think the conclusion must be controlled by Article 699 of the LSA-Civil Code, which reads as follows:

"Enclosed estate, right of passage to public road or waterway

"Art. 699. The owner whose estate is enclosed, and who has no way to a public road, a railroad, a tramroad or a water course may claim the right of passage on the estate of his neighbor or neighbors to the nearest public road, railroad, tramroad or water course and shall have the right to construct a road, railroad, or tramway according to circumstances and as the exigencies of the case may acquire (require), over the land of his neighbor or neighbors for the purpose of getting the products of his said enclosed land to such public road, railroad, tramroad or water course, or for the cultivation of his estate, But he shall be bound to indemnify his neighbor or neighbors in proportion to the damage he may occasion.' (Emphasis supplied)'

This ruling of the Court of Appeal that plaintiff as the mineral lessee of the bed of Castor Bayou is the Owner of an estate, is contrary to the repeated holdings of this Court that the usual oil and gas lease 'is a contract of letting and hiring within the meaning of the codal articles, and that the lessee in such a mineral lease obtains an obligatory or personal right only, and not a servitude on the realty or a real right in the land.' Arnold v. Sun Oil Company, (218 La. 50, 48 So.2d 401) supra. In reconsidering this question in the light of the passage of Act 6 of the Second Extra Session of 1950...