Heirs v. Moseley

• Decision Date: 29 March 1937
• Docket Number: 33912
• Citation: Heirs v. Moseley, 186 La. 1088, 173 So. 772 (La. 1937)
• Parties: PATTON'S HEIRS v. MOSELEY et al
• Court: Louisiana Supreme Court

173 So. 772

186 La. 1088

PATTON'S HEIRS v. MOSELEY et al

No. 33912

Supreme Court of Louisiana

March 29, 1937

[Copyrighted Material Omitted]

Original Opinion of January 4, 1937, Reported at 186 La 1088, 173 So. 772.

OPINION On Rehearing.

HIGGINS, Justice.

We granted a rehearing in this case, because the defendants complained that certain questions raised by them were not answered. In defendants' brief, it is stated that the sole issue before the court was whether or not the plea of prescription had been properly overruled by the district judge and the plaintiffs' suit dismissed. We concluded that the other issues had been abandoned. However, defendants complain that they had no idea of abandoning these points. A rehearing was therefore granted for the purpose of considering them.

The plea of estoppel filed by the defendants is predicated on the ground that plaintiffs' author in title warranted the grants or sales of the mineral rights of the lands in question, and therefore they cannot attack these grants or sales to the defendants or their authors in title. It is clear that if Mr. T. F. Patton, from whom the plaintiffs had inherited, had lived and occupied the land in question adverse to the defendants, and they had not attempted to exercise their real right or servitude to explore the land for gas and oil, that the servitude would have been lost by prescription liberandi causa of ten years. If this is true with reference to the plaintiffs' authors in title, it is equally clear that plaintiffs are entitled to plead prescription against the defendants, because of their failure to exercise the servitude during the ten years that plaintiffs and their authors in title occupied and possessed the land. In short, the plea of prescription is based upon the inaction of the defendants who had it in their power at any time to interrupt prescription by properly asserting their rights. They admit they never attempted to do so. The trial judge therefore properly overruled the plea of estoppel.

Defendants contend that the trial judge erred in permitting the introduction of evidence before the case was at issue on the merits. The trial judge referred the plea of estoppel to the merits and granted the defendants every opportunity to answer. The defendant Butler individually answered disclaiming any title to the property and denying that he had in any way slandered the plaintiffs' title. Upon the refusal of the other defendants to file an answer, although requested to do so by the plaintiffs and the court, the trial judge treated the case as if the plea of estoppel were an answer and that the defendants admitted that they were claiming ownership. The defendants were given full opportunity to introduce any evidence they deemed...