Natalie Oil Co. v. Louisiana Ry. & Nav. Co.

• Court: Louisiana Supreme Court
• Writing for the Court: SOMMERVILLE, J.
• Citation: Natalie Oil Co. v. Louisiana Ry. & Nav. Co., 137 La. 706, 69 So. 146 (La. 1915)
• Decision Date: 07 May 1915
• Docket Number: 21306
• Parties: NATALIE OIL CO. et al. v. LOUISIANA RY. & NAV. CO. In re LOUISIANA RY. & NAV. CO.

69 So. 146

137 La. 706

NATALIE OIL CO. et al. v. LOUISIANA RY. & NAV. CO.

In re LOUISIANA RY. & NAV. CO.

No. 21306

Supreme Court of Louisiana

May 7, 1915

On the Merits, May 10, 1915; Rehearing Denied June 28, 1915

SYLLABUS

(Syllabus by the Court.)

Where an alleged owner of land sues out an injunction and prevents a railway company from boring oil wells on the right of way owned by the defendant company, on the allegations that the railway company has only a right of way, and not a fee in the land, and that such boring is a trespass and a disturbance of the oil under the land of plaintiff adjacent to the right of way, and that he will be injured by such action, the writ of injunction so issued may be dissolved on bond, in the discretion of the district court, and the bond must be for all damages sustained by the plaintiff, should a definitive judgment be rendered against defendant in the suit.

Wise Randolph, Rendall & Freyer, of Shreveport, for relator.

D Edward Greer, of Beaumont, and Thigpen & Herold, of Shreveport (F. C. Proctor, of Beaumont, of counsel), for respondents.

Striking Papers from Files.

OPINION

SOMMERVILLE, J.

Counsel for the Natalie Oil Company et al., having brought to the attention of the court that relators have attached to the argument made on their behalf, in applying to this court for a writ of prohibition or mandamus to the trial judge, a certain document which was not a part of the record of this cause in the district court, said document being signed by J. W. Marston, and which is considered to bear upon the issue presented for consideration and decision, and the court being of opinion that it can neither consider the same nor require the respondent judge to do so;

And it further appearing that counsel for the plaintiff the Natalie Oil Company have attached to their motion a counter affidavit of J. W. Marston and other documents, which form no part of the record of the district court; and, again, that counsel for relator have filed other documents in answer to those filed by counsel for plaintiff:

It is ordered that the documents signed by J. W. Marston, of dates April 17 and 24, 1915, and all other documents filed by plaintiff and defendant in this court which were not filed in this cause in the first judicial district court of Louisiana, in and for the parish of Caddo, be withdrawn from the files of the court.

On the Merits.

The Natalie Oil Company, alleging itself to be the owner of the W. 1/2 of the S. E. 1/4 of section 18, and the S. E. 1/4 of the N. E. 1/4 of section 19, township 13 north, range 10 west, and the Gulf Refining Company, alleging itself to be the lessee of said land, and in actual physical possession thereof, upon which it has drilled wells for oil, which are now producing, that it is drilling additional wells thereon, and that defendant, the Louisiana Railway & Navigation Company was granted, by a prior owner of said land, a right of way over and across said land, as appears by a copy of an act of sale made part of the petition, under which grant the said railroad company had the right only to use said property for railroad purposes, having merely a servitude on the said property for the construction of its tracks; further, that the defendants, the railway company and William Edenborn, have announced the purpose to drill for oil on said right of way, and that they are proceeding at the present time so to drill; that defendants, in using the property for the purpose of drilling for oil thereon, are committing a trespass upon petitioners' property, and will work them irreparable injury by draining oil from under their land which these petitioners alone have the right to extract; that the close proximity of the wells on the right of way of the railroad company would damage petitioners' wells and their productive capacity, which damage could not be estimated in any way -- sought and obtained a writ of injunction under section 5, art. 298, C. P., which provides:

'When the defendant disturbs the plaintiff in the actual and real possession which such plaintiff has had for more than one year, either of real estate or of a real right, of which he claims either the ownership, the possession or the enjoyment,' an injunction must be granted.

Defendants appeared, alleging that the title held by the railroad company to the right of way over the land in question was a title in fee simple, and asked for a dissolution of the injunction on bond. The application was denied by the district judge, for the reason, among others, that defendants could not 'deliver the property in dispute in the same state in which it was at the moment of issuing the injunction,' if a definitive judgment should be rendered against them, under the provisions of article 307, C. P.

A 'right of way' may consist either of the fee or merely of a right of passage and use; i. e., of a servitude. Whether the one or the other is meant in any particular instance must be gathered from the instrument as a whole. But the court cannot now undertake to pass upon and decide whether the defendant railroad company has merely a servitude upon, or a title in fee to, the land in question. The decision on that point will be reserved for the trial of the cause on the merits.

Counsel for plaintiffs admit 'that the substance of the jurisprudence is that a right of way grant to a railroad company is something more than a mere right of passage granted to an individual, in that it confers the sole and exclusive right of...