Hightower v. Maritzky

• Decision Date: 04 March 1940
• Docket Number: 35289.
• Citation: 195 So. 518,194 La. 998
• Court: Louisiana Supreme Court
• Parties: HIGHTOWER et al. v. MARITZKY et al.

195 So. 518

194 La. 998

HIGHTOWER et al. v. MARITZKY et al.

No. 35289.

Supreme Court of Louisiana.

March 4, 1940

Rehearing Denied April 1, 1940.

Appeal from Second Judicial District Court, Parish of Claiborne Enos C. McClendon, Judge.

Suit by Wilbur C. Hightower and others against Max Maritzky and others to have defendants' mineral rights in plaintiffs' land declared forfeited by prescription. Judgment for plaintiffs, and defendants appeal.

Affirmed.

W. D. Cotton, of Rayville, for plaintiffs-appellees.

Meadors & Gensler, T. H. McEachern, and Fred L. Jackson, all of Homer, and Goff, Goff & Caskey, of Arcadia, for defendants-appellants.

O'NIELL, Chief Justice.

The plaintiffs, owning a tract of land having an area of 200 acres, on which the defendants claim certain mineral rights brought this suit to have the defendants' rights declared forfeited by the prescription of ten years, liberandi causa. The rights claimed by the defendants consist of a fourth interest in whatever oil, gas or other minerals may be produced from the 200 acres of land. The suit is founded upon articles 789, 3528, 3529, 3544, 3546 and 3549 of the Civil Code, and the jurisprudence on the subject, maintaining that such a right, owned by one who is not the owner of the land, is a real right, of the nature of a servitude upon the land, and therefore lapses by effect of the prescription of ten years, liberandi causa, if not exercised within that time. The defendants pleaded in their answer to the suit that, because of certain stipulations in the deed by which the plaintiffs' author in title sold the mineral rights to the defendants' author in title, the rights were not subject to prescription, and that, for other reasons stated in the answer, the prescription was interrupted or suspended, if in fact the rights were ever subject to prescription. The judge, after hearing the evidence, gave judgment for the plaintiffs sustaining the plea of prescription and declaring the land free from the mineral rights claimed by the defendants. They are appealing from the decision.

The plaintiffs acquired title to the 200 acres of land by inheritance from William T. Hightower, who died in 1927. The defendants acquired a fourth interest in the mineral rights in the land from Allen P. Findling, who bought from William T. Hightower on February 26, 1925, ‘ One-fourth (1/4) of all the oil, gas and other minerals on, in or under’ the 200 acres of land. It is well settled, and is not disputed, that a deed purporting to convey the oil or gas in or under a tract of land conveys only the right to become the owner of whatever oil or gas may be found and reduced to possession. Such a right, being a real right, and of the character of a servitude on the land, is extinguised by the prescription of ten years, liberandi causa, if not exercised within that time. Rev.Civ.Code, arts. 789, 3528, 3529, 3544, 3546 and 3549. This prescription is applicable not only to one who owns all of the mineral rights in the land of another but also to one who has the right to only a fractional part of the minerals that may be produced, as, for example, a half or a fourth of the so-called mineral rights. Clark v. Tensas Delta Land Co., 172 La. 913, 136 So. 1; Myers v. Cooke, 175 La. 30, 142 So. 790; Gaines v. Crichton, 187 La. 345, 174 So. 666; Daggett on Mineral Rights in Louisiana, Sec. 23, p. 85.

The reason for which the defendants contend that the mineral rights which Findling bought from Hightower on February 26, 1925, were not subject to the prescription of ten years, liberandi causa, is that it was stipulated in the deed that Findling or his assigns should not share in any rentals that might be paid thereafter to maintain in force an oil and gas lease on the land, or share in the price of any subsequent lease that might be placed upon the land; and that Hightower alone should have authority to lease the land, and to collect the bonus or rentals. The defendants argue that by these stipulations Findling appointed Hightower his agent to lease the land for the production of oil or gas, and to receive the price and rentals therefor. Hence they invoke the doctrine that one who holds possession of property as the agent for the owner cannot acquire title by prescription, or adverse possession. That doctrine has reference to prescription acquirendi causa, and is founded upon the fact that possession of property held by an agent for the benefit of the owner is not adverse possession. The doctrine has no application to this case,-not only because we are dealing now with prescription liberandi causa, but also because the stipulations referred to, in the deed from Hightower to Findling, did not purport to make Hightower the agent of Findling for the purpose of leasing the land for the production of oil or gas or other minerals. It has been decided that such stipulations in a sale or reservation of the mineral rights in a tract of land do not constitute a mandate or power of attorney. Mt. Forest Fur Farms of America v. Cockrell, 179 La. 795, 155 So. 228. A case somewhat analogous is Childs v. Porter-Wadley Lumber Co., 190 La. 308, 182 So. 516. By the stipulations referred to, in the deed from Hightower to Findling, Findling merely consented that Hightower, being the owner of the land and having the right to three-fourths of whatever oil or gas might be produced from it, should have the exclusive right to grant mineral leases on the land and to collect any rental or bonus that might be due under the lease. But any lease that might have been granted by Hightower would have been granted not as agent for Finding but as owner of the land, notwithstanding it would have inured to the benefit of Findling, to the extent of his interest in the royalties, as an incident of his having the one-fourth mineral right in the land.

The next plea urged in defense of this suit is that the stipulation in the deed from Hightower to Findling, that Hightower should have the exclusive right to lease the land for the production of oil or gas, established an obstacle in the way of Findling's exercising his real right on the land, and therefore, according to article 792 of the Civil Code, the prescription of ten years for nonuse was suspended as long as the obstacle remained. Although this article, by its terms, might seem applicable only to predial servitudes, the principle on which it is founded is applicable as well to personal servitudes as to predial servitudes. What is said in the article is that, if the owner of the estate to whom the servitude is due is prevented from using it by any obstacle which he can neither prevent nor remove, the prescription for nonuse does not run against him as long as the obstacle remains. In the phrase ‘ to whom the servitude is due’, the words ‘ to whom’ are a translation of the French word auquel, which might as well have been given the neuter gender,-to which,-in the translation. But the meaning is the same, whether we say ‘ the owner to whom the servitude is due’, or ‘ the owner of the estate to which the servitude is due’ . The article has reference to those obstacles only which the owner of the servitude or real right has not consented to. Sarpy v. Hymel, 40 La. Ann. 425, 4 So. 439. The wording of the article leaves no doubt about that, in its reference to a person's being prevented from using his servitude. It is merely an embodiment of the maxim Contra non valentem, etc. In that connection, the plaintiffs urge another reason why this article of the Code is not applicable to an obstacle, or limitation or restriction, to which the grantee of a servitude gives his consent in the deed granting the servitude. The parties to a contract granting a servitude or real right may impose any restriction or limitation that they see fit to impose upon the use or enjoyment of the servitude or the exercise of the right,-except that they cannot stipulate effectually that the servitude or real right shall not be subject to the prescription of ten years, liberandi causa. The reason for that exception to the freedom of contract is in the fundamental rule of public policy that a debtor, or an obligor in the case of a servitude or real right, cannot renounce in advance the benefit of the prescription which may release him or his land from the obligation. Rev.Civ.Code, arts. 3459, 3460, 3549; Nabors Oil & Gas Co. v. Louisiana Oil Refining Co., on rehearing, 151 La. 361, 91 So. 765; Bodcaw Lumber Co. v. Magnolia Petroleum Co., 167 La. 847, 120 So. 389.

The next plea of the defendants, being an alternative plea, is that, if their rights were subject to the prescription of ten years liberandi causa, the prescription was interrupted by an acknowledgment made by the plaintiffs in a deed by which they sold the 200 acres of land and three-eighths of the mineral rights to one S. G. Shaw, on November 27, 1928, and again in the sheriff's deed by which the plaintiffs repurchased the property, on November 19, 1932. In the deed from the plaintiffs to Shaw, immediately after the description of the 200 acres of land, this stipulation or acknowledgment appears: ‘ It is especially agreed and understood by all of the parties hereto that at this time 1/4 of all the minerals in and under the above described land has been sold and...