Sellington v. Producers' Oil Co

• Decision Date: 30 June 1922
• Docket Number: 23748
• Citation: 152 La. 81,92 So. 742
• Parties: SELLINGTON v. PRODUCERS' OIL CO
• Court: Louisiana Supreme Court

92 So. 742

152 La. 81

SELLINGTON v. PRODUCERS' OIL CO

No. 23748

Supreme Court of Louisiana

June 30, 1922

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

Action by Mrs. Fannie Sellington against the Producers' Oil Company. From a judgment for defendant, plaintiff appeals.

Judgment annulled, and judgment rendered for plaintiff.

Clifton F. Davis and C. B. Prothro, both of Shreveport, for appellant.

Hampden Story, of Shreveport, for appellee.

OPINION

O'NIELL, J.

This is an action to relieve plaintiff's land of an alleged servitude or real obligation, in virtue of which defendant claims the oil, gas, and mineral rights in the land. Plaintiff claims that the obligation was extinguished by the prescription liberandi causa, by which servitudes are lost or extinguished, by nonuser for 10 years, according to articles 789, 3529, and 3546 of the Civil Code. Defendant denies that its title to the minerals or mineral rights was subject to the prescription liberandi causa, and in the alternative avers that, if it was so, the prescription was interrupted by acknowledgments made by plaintiff, in two separate sales of parts of the land in which defendant had acquired the mineral rights.

The district judge held that defendant's mineral rights in plaintiff's land were not subject to prescription liberandi causa. The decision was rendered before our final ruling in the case of the Frost-Johnson Lumber Co. v Salling's Heirs, 150 La. 756, 91 So. 207, and is in direct conflict with it. Plaintiff has appealed from the judgment rejecting her demand.

The land on which the mineral rights are contested has an area of about 66 acres, and is described as the S.W. 1/4 of N.W. 1/4 of section 28, and that part of the N.W. 1/4 of S.W. 1/4 that is on the north side of Black bayou, in the same section, in township 21 north, range 15 west.

Defendant acquired title from James M. Sellington, on the 3d of November, 1906, by virtue of an act of sale purporting to convey the mineral oil and gas in all of the N.W. 1/4 of S.W 1/4 and S.W. 1/4 of N.W. 1/4, and a half of the oil and gas and mineral rights in the S.W. 1/4 of S.W. 1/4, of section 28, township 21 north, range 15 west. That description, it will be observed, embraces, not only the land in which the mineral rights are now contested, but also the land immediately south of it, being that part of the N.W. 1/4 of S.W. 1/4 that is on the south side of the bayou, and all of the S.W. 1/4 of S.W. 1/4 of section 28.

James M. Sellington was plaintiff's husband, and the land belonged to the marital community between them. He died, and, by a judgment of court dated the 24th of August, 1911, plaintiff was recognized as the sole owner of the land, having acquired one half as member of the marital community and the other half by inheritance from her deceased husband.

Defendant did not drill or attempt to drill for oil or gas, or exercise or attempt to exercise any right whatever, on plaintiff's land, before this suit was filed. It was filed on the 13th of August, 1917; that is, 10 years 8 months and 10 days after defendant had acquired the mineral rights in the land. It is therefore virtually conceded, or must be conceded, that, according to the doctrine which was finally settled by our decision in the case of Frost-Johnson Lumber Co. v. Salling's Heirs, 150 La. 756, 91 So. 207, the real obligation, or servitude, with which plaintiff's land was burdened, was extinguished by the prescription liberandi causa, by which servitudes are extinguished by nonuser for 10 years, according to articles 789, 3529, and 3546 of the Civil Code, unless the prescription was interrupted, as defendant contends it was, by a written acknowledgment on plaintiff's part.

The alleged written acknowledgments, relied upon by defendant, have reference to two sales, by which in each instance plaintiff sold a part of the land in which defendant had acquired the mineral rights. On the 22d of August, 1912, plaintiff sold to John Murray and his wife the S.W. 1/4 of S.W. 1/4 of section 28 in township 21 north, range 15 west, and that part of the N.W. 1/4 of S.W. 1/4 that is on the south side of the center line of Black bayou, in the same section. Defendant then owned half of the mineral rights in the S.W. 1/4 of the S.W. 1/4 of the section, and all of the mineral rights in that part of the N.W. 1/4 of S.W. 1/4 that is on the south side of the bayou, together with the mineral rights in that part of plaintiff's land on the north side of the bayou, being the remaining part of the N.W. 1/4 of S.W. 1/4 and all of the S.W. 1/4 of N.W. 1/4 of section 28. It was acknowledged in the deed that John Murray and his wife took the land subject to the previous sale of the minerals or mineral rights to the Producers' Oil Company, defendant herein. The acknowledgment or reservation was stated thus:

"The vendor herein specially reserves and excepts from this sale all of the oil, gas and other minerals in and under said land, with the right of ingress and egress in order to mine and produce the same; the oil, gas and other minerals under said land, with the right to enter upon said land at any time for the purpose of removing the same, having been heretofore sold by J. M. Sellington to the Producers' Oil Company, as shown by act of sale recorded in the recorder's office, Caddo parish, La."

In Baker v. Pena, 20 La.Ann. 52, it was said:

"A party purchasing real estate with a servitude imposed and acknowledged by his vendor, takes the property subject to the servitude, and cannot prevent the use and benefit of the servitude by the party in whose favor it has been established, on the ground that he never consented to it.

"The vendee acquires no greater rights or privileges over property which he purchases than his vendor had.

"Where a servitude is once established on property, it takes 10 consecutive years of nonuse by the party in whose favor it is established, to entitle the party on whom it is imposed to prescribe against the right. * * *

"A recognition of the right of servitude by the party owing it will interrupt prescription, which only begins to run again from that date, and must continue for 10 years from the date of the interruption before it is prescribed."

In Frost-Johnson Lumber Co. v. Nabors Oil & Gas Co., 149 La. 100, 88 So. 723, it was held that an acknowledgment made in a deed by which a party bought land subject to a previous sale of the mineral rights, acknowledging that the seller had sold the mineral rights to a party named in the deed, interrupted the prescription of 10 years, and that the 10 years commenced anew from the date of the acknowledgment. But the theory of that decision, like the ruling in Baker v. Pena, was that the purchaser of the land who had the right to...