De Moss v. Sample

• Decision Date: 01 April 1918
• Docket Number: 21433
• Citation: 78 So. 482,143 La. 243
• Court: Louisiana Supreme Court
• Parties: DE MOSS v. SAMPLE et al

78 So. 482

143 La. 243

DE MOSS v. SAMPLE et al

No. 21433

Supreme Court of Louisiana

April 1, 1918

SYLLABUS

(Syllabus by the Court.)

The elements of ownership in land may be severed. The owner may sell surface rights, and except from the sale the minerals below the surface, and reserve to himself the right to mine those minerals; whether the minerals be in place, like coal sulphur, etc.; or, whether they be migratory, like oil and gas appear to be.

Scheen & Blanchard, of Shreveport, for appellant.

Hampden Story, of Shreveport, for Producers' Oil Co.

Hall & Jack, of Shreveport, for appellees Sample.

Foster, Looney & Wilkinson and J. C. Pugh & Son, all of Shreveport, amici curiae.

O'NIELL and LECHE, JJ., concur in the decree.

OPINION

SOMMERVILLE, J.

This is a jactitation suit brought by plaintiff, who alleges that he acquired title to the land in dispute from two of the defendants, A. N. and S. G. Sample, in the year 1911, and that he has been in quiet possession thereof since that time, until shortly before the filing of this suit, in 1914. He further alleges that the defendants, the two Samples and the Producers' Oil Company, have disturbed him in his possession by entering upon the estate, and by extracting oil therefrom.

Defendants answer, admitting that plaintiff bought the land in question at the time indicated, but allege that in selling to him, the vendors, the two Samples, made this written stipulation in their favor in the deed of conveyance:

'The vendors herein reserving the oil, gas and mineral rights in and to the said described property, with the right of ingress and egress, but such right to be exercised with as little damage as possible in the operation thereof and without damage to crops, buildings and improvements; but, in the event that it should be necessary to damage crops, buildings and improvements in the exercise of the said mineral rights, and the right of ingress and egress, then the vendors or their assigns to pay such damages as may be suffered by the vendee or his assigns.'

The action was thus converted into a petitory action by the Samples claiming ownership of the oil and gas in or under the land and of the mineral rights reserved in the transfer of the land by them to plaintiff.

It is contended by plaintiff that by the reservation of the minerals made by defendants, the Samples, in the title deed, in the land or under the surface of the earth, as well as mineral rights, it was not the intention of the parties that plaintiff did not take the land in its entirety; and that the so-called reservation of mineral rights was of an uncertain thing, which could not be sold, and, if passed, was passed without consideration on the part of the defendants.

The defendants, the Samples, entered into a contract of lease with the Producers' Oil Company, wherein all of their rights were transferred to said company; and that company has been made a party defendant.

There was judgment in favor of defendants, and plaintiff has appealed.

The agreement entered into between the parties is clear and unambiguous in its terms. It therefore has the effect of a law upon them, and its terms must be performed in good faith, unless the agreement is in violation of law. As the law does not forbid the owner of land to reserve to himself the minerals lying under the surface thereof, or the right to thereafter enter upon said lands for the purpose of exploring for those minerals, such reservation properly became the subject, or motive, of the contract between the parties.

'Individuals have the free disposal of the property which belongs to them, under the restrictions established by law.' C. C. art. 484.

It lies within the power of contracting parties to make any matter material to their contract, if not against the public policy of the state, although such matter may seem to be of little or no value to either party to the contract. When the parties themselves have made certain matters the bases of a contract the courts will not assume to correct the intention or understanding of the parties as to the materiality of such matters. Where parties, in a contract of sale of land, agree that the vendor shall reserve to himself, or except, from the sale the minerals in or under the land, the title to the minerals and the right to explore for them remain in the vendor, and the minerals do not pass to the vendee. Plaintiff cannot be heard to contend that he intended to take the land in its entirety; that neither party supposed that there was oil or gas in or under the land; and that he did not intend to buy the land without the oil and gas, if they were there.

The fact is, plaintiff bought the land, except 'the oil, gas and mineral rights in and to the described property.' Defendants therefore did not sell, and plaintiff did not buy, 'the oil, gas and mineral rights in and to the described property.' The title thereto remained in the Samples. There is no law which forbids the owner of land to sever its constituent parts, and sell one or more of those parts and retain the remainder. And, when he does retain or except from the sale a part, there is no consideration due the vendee. The latter did not transfer the part excepted in the sale made to him.

Ordinarily, oil and gas, while in the earth, are not the subject of ownership separate from the soil.

'The ownership of the soil carries with it the ownership of all that is directly above and under it.' C. C. art. 505.

But the owner may dismember his ownership and sell his land, excepting and reserving to himself the oil, gas, and mineral rights therein. Or he may sell the coal to one, iron to another, and so on.

There has been little legislation in this state on mining contracts, and there have been few adjudications on the subject. In the Rives Case, 133 La. 178, 62 So. 623, where mineral rights had been granted by the owner of land for a term, the court construed the contract to be a lease; and, in such case, it was said in the syllabus that:

'Oil and gas while in the earth are not the subject of ownership distinct from the soil, and the grant of the oil and gas, therefore, is a grant, not of the oil or gas that is in the ground, but of such part as the grantee may find, and passes nothing except the right to explore for the same under the terms of said contract.'

The court did not hold that a sale could not be made of the surface with a reservation of the minerals and the right to explore for them by the vendor. It was there held that a contract for the exploration of lands for minerals, although designated a sale by the parties, was the grant of an exclusive right to search for, take, and appropriate the minerals mentioned in the contract; in other words, it was held to be a lease of land for mining purposes.

The parties to the contract here have agreed that the ownership of the oil and gas should be distinct from the ownership of the soil, or surface of the earth. The vendors did not sell or grant to the vendee the oil and gas in the soil; they excepted them from the sale; and they reserved to themselves and their assigns the right of ingress and egress to explore for and take the oil and gas therefrom. The oil and gas, when reduced to possession by the vendors or their assigns, became the personal property of the vendors or their assigns. Their title then became perfect therein. Until reduced to possession the title was in the Samples. The owners of the surface had no proprietary interest therein.

The parties have divided the property in what might be called horizontal planes. The vendors transferred to the plaintiff all the surface rights on the land, and they reserved to themselves certain planes beneath the surface. It is a common thing for the owner of a portion of the earth's surface or crust to convey the coal or other minerals beneath the surface. Then the owner has parted with a strata or stratum in the midst of what was once his, and he continues to own from the center of the earth to the bottom of the part sold. And from the top of the part sold to the clouds is owned by the vendor. Ordinarily, the sale or leasing of a stratum, by implication, carries with it the right to use as much of the surface as may be actually necessary to mine from the stratum conveyed. That is also true as to the owner who excepts a stratum from the sale of his land to another. In such case, we have what the Code terms 'imperfect' ownership; and it is provided in article 2449, C. C., that:

'Not only corporeal objects, such as movables and immovables, live stock and produce, may be sold, but also incorporeal things, such as a debt, an inheritance, the rights, titles and interests to an inheritance, or to any parts thereof, a servitude, or any other rights.'

The state Legislature, in act numbered 31, of 1910, p. 50, has fixed the public policy of the state with reference to the severance of the elements of the ownership in land, by providing for and 'authorizing the register of land office to sell and convey to the city of Shreveport, the bed of what is known as Cross Lake in the parish of Caddo, and fixing the terms and conditions of such sale, reserving to the state of Louisiana all minerals and mineral rights on and under said lands.'

The Legislature could not have been certain that oil and gas were under the lands referred to, or that they would remain there if they were there; yet, nevertheless, it reserved to the state those minerals, and the right to extract them from the earth, if they were there, without consideration passing to the city of Shreveport.

A sale or reservation of the mineral rights on property, of course does not constitute a sale or reservation of so many tons of coal, iron ore, barrels of oil, or feet of gas;...