Liles v. Barnhart, 24226

• Court: Supreme Court of Louisiana
• Citation: 93 So. 490,152 La. 419
• Decision Date: 05 June 1922
• Docket Number: 24226
• Parties: LILES et al. v. BARNHART et al

93 So. 490

152 La. 419

LILES et al.
v.
BARNHART et al

No. 24226

Supreme Court of Louisiana

June 5, 1922

Rehearing Denied July 17, 1922; Dissenting Opinion, September 25, 1922

Appeal from First Judicial District Court, Parish of Caddo; John R. Land, Judge.

Action by Mrs. Mary J. Liles and others against W. E. Barnhart and others. From the judgment, plaintiffs and the defendant Gulf Refining Company of Louisiana appeal.

Judgment amended in part, annulled and set aside in part, and affirmed in part.

J. S. Atkinson and Thigpen, Herold & Lee, all of Shreveport, for appellant Gulf Refining Co. of La.

Hall & Bullock and G. H. Holder, all of Shreveport, for appellants.

Cook & Cook, of Shreveport, for curator of the absentee, W. E. Barnhart.

OVERTON, J. DAWKINS, J., dissenting. LAND, J., recused. ST. PAUL, J., concurring in part.

OPINION [93 So. 491]

[152 La. 421] OVERTON, J.

Plaintiffs and one of the defendants, W. E. Barnhart, are the owners, in indivision, of a certain tract of land, consisting of approximately 22 acres, situated in the parish of Caddo; the plaintiffs owning one-fifth and Barnhart four-fifths. Plaintiffs [152 La. 422] were recognized as the owners of their one-fifth interest in the suit of Liles et al. v. Pitt et al., reported in 145 La. 650, 82 So. 735.

Some time prior to the institution of that suit, Barnhart, who was then claiming ownership of the entire tract, granted a mineral lease on it to the Gulf Refining Company of Louisiana.

Under the lease, the Gulf Refining Company entered upon the land, bored wells for oil, and, it is alleged, wrongfully withdrew therefrom large quantities of oil and gas exceeding $ 500,000 in value. Therefore, it is alleged that both Barnhart, the lessor, and the Gulf Refining Company, the lessee, are indebted, in solido, unto plaintiffs for their one-fifth part of the oil and gas, or the proceeds thereof, thus taken from the land, less one-fifth part of the cost of production. This part, less their proportion of the cost of production, they allege, exceeds $ 100,000 in value. They further allege that they are unable to fix the amount thereof with exactness, and are therefore entitled to an accounting from the Gulf Refining Company and from Barnhart, so that the exact amount may be ascertained.

Plaintiffs also allege that, when judgment was rendered in their favor, declaring them to be the owners of a one-fifth undivided interest in said land, Barnhart appealed suspensively from that judgment to this court; and on July 8, 1915, furnished as surety on the appeal bond the United States Fidelity & Guaranty Company. It is further alleged that this company signed the bond in the sum of $ 13,440 to secure to plaintiffs their part of whatever oil or gas, or the proceeds thereof, that might be delivered or paid to Barnhart during the pendency of the appeal; that the appeal was decided on June 30, 1919; that they are entitled to an accounting from Barnhart and the Gulf Refining Company, showing the amount paid [152 La. 423] to Barnhart during that period, and to judgment against the surety company, on the bond, for the amount shown to have been so received by Barnhart.

Plaintiffs also allege that they desire a partition of the real estate, mentioned in the first part of this opinion. They allege that it cannot be divided in kind, and therefore that it should be partitioned by licitation.

Plaintiffs pray (according to the prayer of their original petition, as amended by their first and second amended petitions) for a partition of said land by licitation; for judgment ordering said accounting; and for judgment against Barnhart and the Gulf Refining Company, in solido, for one-fifth of the value of all oil and gas wrongfully taken from said land, less the reasonable cost of production; and for judgment against the United States Fidelity & Guaranty Company for the amount received by said Barnhart, during the pendency of said appeal, not to exceed the amount of the appeal bond; and they pray for legal interest on the judgment to be rendered against each defendant, from judicial demand until paid.

The Gulf Refining Company and Barnhart, for answer to the above demand, deny all liability to plaintiffs for anything therein claimed; and plead against the demand, arising from oil taken by them from said land, the prescription of one year. Both deny that the land is indivisible in kind, and hence deny that a partition by sale is necessary. The Gulf Refining Company, however, asks that, in the event a partition by sale should be found necessary, then that its rights as lessee and the rights of the owners of the land be separately appraised, and the proceeds of sale ratably distributed among them; and that, should the amount, payable out of said sum to it, be less than the total value of its rights in said property as appraised, then that such portion of the fund, as would be payable to Barnhart, be paid to [152 La. 424] it, up to the total value of its rights, as thus fixed. The Gulf Refining Company further prays that its lessor, Barnhart, be called in warranty, and that it have judgment against him, in the event plaintiff should recover judgment, for all amounts that it has paid Barnhart, and for all amounts that it may be condemned to pay plaintiffs.

Barnhart is an absentee, and therefore a curator ad hoc was appointed to represent him, who, in Barnhart's behalf, denies all [93 So. 492] liability to plaintiffs, and pleads the prescription of one year in bar of plaintiffs' demand.

The United States Fidelity & Guaranty Company answered and excepted to the suit. The exception was argued and taken under advisement, but does not appear to have been passed upon. That company made no other appearance, and issue was not joined as to it.

The lower court, after trial, rendered judgment ordering that the land be sold at public auction for cash, to effect a partition; plaintiffs to have one-fifth of the proceeds of the sale, and Barnhart the remaining four-fifths; and condemning the Gulf Refining Company to pay plaintiffs $ 7,173.26, with 5 per cent. per annum interest thereon from July 20, 1919, until paid, being one-fifth of the value of oil and gas taken from said land, less the cost of production, for the year immediately preceding the institution of the present suit, up to August 31, 1919; and maintaining the plea of prescription of one year, as to all other demands of plaintiffs. The trial also resulted in judgment in favor of the Gulf Refining Company and against its warrantor, Barnhart, for $ 1,247.04, being one-fifth of the royalty paid to him during the year immediately preceding the institution of this suit, and up to August 31, 1919, with 5 per cent. interest thereon from July 20, 1919, until paid, and for $ 600, representing one-fifth of the bonus paid to Barnhart, [152 La. 425] at the time the Gulf Refining Company acquired the lease, with legal interest thereon from February 5, 1913, until paid. The right was also reserved the Gulf Refining Company to remove from the leased premises all the pipe, machinery, and other fixtures placed thereon by it, except such as are attached to and form part of the wells.

From this judgment, plaintiffs and the Gulf Refining Company have appealed. The curator ad hoc for Barnhart has filed no answer to the appeal.

It appears from the evidence that on February 5, 1913, and prior thereto, Barnhart was claiming the ownership of the entire tract of land from which the oil was afterwards produced, under a deed, which on its face, was translative of property. On that date he granted the mineral lease, mentioned above, to the Gulf Refining Company. Under that lease, the Gulf Refining Company exploited the land, and extracted therefrom large quantities of oil and some gas, and paid royalties, in large amounts, to its lessor, Barnhart. The plaintiffs, shortly after the discovery of oil, brought their suit, above referred to, against Leland H. Pitts et al., which included Barnhart as one of the defendants, to recover their undivided interest in the land in question, and in other lands. In so far as it is necessary to state, that suit resulted, in the trial court, in the recovery, by the plaintiffs herein, of a one-fifth undivided interest in the land now in question. Barnhart appealed suspensively from that judgment, furnishing the United States Fidelity & Guaranty Company as surety on the appeal bond, in the sum of $ 13,440. On appeal, the judgment of the lower court was, on rehearing, affirmed. Liles et al. v. Pitts et al., 145 La. 650, 82 So. 735. There is no dispute as to the amount of oil and gas obtained from the land by the Gulf Refining Company, nor as to the value thereof, nor as to the amount that was received for the [152 La. 426] same, nor as to the amounts paid Barnhart by the Gulf Refining Company, as royalty. That company filed a statement showing these amounts, in response to the demand of plaintiffs for an accounting. The statement is accepted as correct by all of the parties to this suit.

The vital question to be determined, in so far as respects the moneyed demand of plaintiffs, is whether the prescription of one year, prescribed by articles 3536 and 3537 of the Civil Code, for actions for damages, arising from offenses and quasi offenses, is applicable. Defendants contend that it is, basing their contention on the theory that plaintiffs' demand for a moneyed judgment is one for damages arising out of a quasi offense; whereas, plaintiffs assert that such is not the case, and contend that their demand is one for money had and received.

It is possible for one to have a moneyed demand against another upon which he may sue in tort, or upon a contract, or quasi contract. In such instances, he may disregard the contract or quasi contract and bring the action arising from the tort. The form of the action, in such instances, that plaintiff elects to bring,...