Kuchenig v. California Company, Civ. A. No. 13495.

• Court: United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
• Writing for the Court: FRANK B. ELLIS
• Citation: 233 F. Supp. 389
• Parties: Fred KUCHENIG v. The CALIFORNIA COMPANY.
• Docket Number: Civ. A. No. 13495.
• Decision Date: 13 September 1964

233 F. Supp. 389

Fred KUCHENIG
v.
The CALIFORNIA COMPANY.

Civ. A. No. 13495.

United States District Court E. D. Louisiana, New Orleans Division.

September 13, 1964.

233 F. Supp. 390

E. Ross Buckley, of Deynoodt, delaVergne, Meyers & Buckley, and C. Ellis Henican, of Henican, James & Cleveland, New Orleans, La., for plaintiff.

John M. McCollam and L. K. Benson, of Milling, Saal, Saunders, Benson & Woodward, New Orleans, La., for defendant.

Civ. A. No. 13495, Division B.

FRANK B. ELLIS, District Judge.

This is a diversity action¹ seeking an accounting and damages for an alleged trespass to proven mineral laden lands in Plaquemines Parish, Louisiana. At the very outset, and pursuant to Rule 12(b) (6),² the plaintiff is faced with a motion to dismiss for failure to state a claim upon which relief can be granted. The complaint alleges, and for purposes of this motion it is taken as true,³ that plaintiff is the owner of the "Northeast Quarter of Section Thirty-Six, Township Eighteen South, Range Seventeen East, in the Southeastern Land District of Plaquemines Parish, Louisiana," a tract located in the California Bay area of Breton Sound. At some otherwise unspecified time, and without the consent of plaintiff, the defendant, The California Company, entered upon that land and drilled a mineral well from which it has since been removing oil, gas and other hydrocarbons.

No where is it alleged that plaintiff is in actual possession of the land in question. Under Louisiana law,⁴ it is now clear that an owner not in possession has a cause of action for damages in trespass against an alleged trespasser. Harang v. Bowie Lumber Co., 145 La. 96, 81 So. 769 (1919); Ducros v. St. Bernard Cypress Co., 164 La. 787, 114 So. 654 (1927). However, defendant has filed into the record numerous unrebutted affidavits proving that it had been in possession of the land for more than one year by virtue of having drilled wells thereon as early as 1951 under Louisiana State Lease No. 1960. The issue presented then is whether an owner out of possession has a cause of action for damages in trespass against an alleged trespasser who has been in possession for more than one year.

As a mineral lessee of the State of Louisiana the defendant is the owner of a real right and may defend that right as if it were a possessor of immovable property, LSA-Code of Civil Procedure, Art. 3664, even though defendant had no intention of "possessing as owner." Cf. LSA-Civil Code, Art. 3436. However, the Louisiana Civil Code recognizes that "ownership" and "possession" are distinct rights, and hence may come into conflict.

"Art. 3435. Although the possession be naturally linked with the ownership, yet they may subsist separately from each other; for it may

233 F. Supp. 391

happen that the actual possessor is not the true owner." (Emphasis supplied)

This case focuses on such a conflict. Cf. LSA-C.C. Art. 488 and Art. 3426.

The attempted resolution of this problem begins with Hood v. Stewart, 2 La. Ann. 219 (1847). There an owner out of possession sued an adjacent landowner, through the latter's agent, asking damages in trespass for the fencing and possession of twenty-five acres of land allegedly owned by the plaintiff. Defendant had been in possession of the disputed tract for more than one year. The Court concluded that there could be no cause of action in trespass.

"This possession, which had continued for more than a year, created such a legal presumption of ownership, as would have protected him against a possessory action. It so far legalized his possession, as would authorize him, during its continuance, to exercise acts of ownership without exposing himself to an action of damages; otherwise the protection given by law to such ownership would be nugatory. The plaintiff could only have proceeded against him in a petitory action for the recovery of the land; and, in that action, the respective claims of the parties for improvements and rents could have been adjusted." (Emphasis supplied) 2 La.Ann. at 220.

At that early date then the jurisprudence apparently decreed that there was no cause of action in trespass by an owner, either in or out of possession, against one who possessed for more than one year. It is also evident that "possession for more than one year" was the deciding factor, even prevailing over an allegation of ownership.

This doctrine was followed, but somewhat weakened⁵ in Ducros v. St. Bernard Cypress Co., 145 La. 691, 82 So. 841 (1918). There defendant had removed cypress timber from a certain tract of land claimed by plaintiff. Recovery was sought for damages only, without a prayer for possession or title. The Court held that the alleged owner's failure to have been in possession was fatal to the cause of action "since the person in possession under a claim of title would alone have a standing to complain of the disturbance of possession."⁶

Such language again underscored the importance of "possession". On the other hand, two Judges dissented in that case, one noting that it was not a possessory action, but merely "an action for the value of timber alleged to have been taken by defendant from plaintiff's land."⁷ The other dissenting Justice deduced that "where * * * the suit is based on ownership * * * the question of possession becomes insignificant." (Emphasis supplied)⁸ While the overriding importance of "possession for more than one year" in an action for damages was upheld in that case, a certain erosive factor became apparent, namely, the importance of "ownership".

Less than three months after the Louisiana Supreme Court's decision in that 1918 Ducros case, the question was raised again. In Harang v. Bowie Lumber Co., 145 La. 96, 81 So. 769 (1919), plaintiff sued in trespass for the value of timber removed from land allegedly owned by the plaintiff. The defendant asserted that the alleged owner was out of possession and that there was no cause of action for damages in trespass except as a possessory action or as an incidental demand in a petitory action. Holding for the plaintiff the Court unanimously recognized the existence of a cause of action in trespass separate and

233 F. Supp. 392

distinct from the possessory and petitory actions.⁹ The Court pointed out

"No argument has been advanced — and we know of no reason — why the plaintiff in an action for the value of timber removed should have to pray for a judgment against the defendant decreeing the plaintiff to be the owner of the land. On the contrary, a very good reason is suggested why the plaintiff in an action like this should not have to pray for recognition of his title to the land; that is, that it might serve no good purpose. In this suit, for example, the defendant claims to have bought only the timber growing on the land and claims no interest in the land itself. In Burton-Swartz Cypress Co. v. Baker-Wakefield Cypress Co., 143 La. 686, 79 South. 221, we held that an action of this character might be maintained on the allegation and proof of plaintiff's ownership of the land without his praying for recognition of his title to the land." (Emphasis supplied) 81 So. at 770.

Thus, in addition to sustaining plaintiff's cause of action in trespass, the Court made evident the fact of "ownership" as the controlling factor and went on to expressly overrule Hood v. Stewart:

"So far as the rulings in Banks v. Doughty 11 Rob. 483, Hood v. Stewart, and Leatham & Smith Lumber Co. v. Nalty 109 La. 339, 33 So. 354, relied upon by appellant, are in conflict with this decision, they are now overruled." 81 So. at 775.

Interstate Trust & Banking Co. v. Picard & Geismar, Ltd., supra note 5; Pfister v. St. Bernard Cypress Co., 155 La. 575, 99 So. 454, cert. den. 266 U.S. 625, 45 S.Ct. 125, 69 L.Ed. 474 (1924); Ducros v. St. Bernard Cypress Co., supra note 5.

Defendant strongly urges, however, that there were two issues decided in the Hood case, and that Harang only reversed the one not applicable here. While defendant admits that after Harang an owner out of possession could maintain an action in trespass against the alleged trespasser, the argument is made that such an action cannot be lodged against an alleged trespasser who has enjoyed possession for more than one year. In support of that proposition defendant has produced a copy of the learned Judge Oliver P. Carriere's written reasons in the otherwise not officially reported case of Stone v. Humble Oil & Refining Co., Orleans Civ.Dist., No. 385-531 (1961). Plaintiff's action was dismissed in that case on an exception of vagueness, one of the five reasons being that they did not "allege whether defendant had been in possession of the lands for more than one year," and citing Hood v. Stewart. Judge Carriere then noted that Harang did not overrule Hood "on the point shown above". While the only point that the Stone case determined...