Sick v. Bendix-United Geophysical Corp.

• Decision Date: 20 December 1976
• Docket Number: No. 11035,BENDIX-UNITED,11035
• Citation: 341 So.2d 1308
• Parties: J. Edward SICK, III, et al. v.GEOPHYSICAL CORPORATION, formerly known as United Geophysical Corporation, et al.
• Court: Court of Appeal of Louisiana — District of US

Page 1308

341 So.2d 1308

J. Edward SICK, III, et al. v. BENDIX-UNITED GEOPHYSICAL CORPORATION, formerly known as United Geophysical Corporation, et al.

No. 11035.

Court of Appeal of Louisiana, First Circuit.

Dec. 20, 1976.

Rehearing Denied Feb. 14, 1977.

John V. Baus and Timothy T. Roniger, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for plaintiffs and appellants.

John F. Pugh, Pugh, Lanier & Pugh, Thibodaux, and Charles C. Gremillion, Liskow & Lewis, New Orleans, for defendants and appellees.

Before SARTAIN, COVINGTON and LOTTINGER, JJ.

LOTTINGER, Judge.

This is an action ex delicto for a geophysical trespass. From a judgment sustaining an exception of no cause of action, and overruling an exception of no right of action, the plaintiffs have appealed and the defendants have answered the appeal.

The plaintiff, J. Edward Sick, III, W. S. Mott, Jr., and Wessely Energy Corporation, have sued Bendix-United Geophysical Corporation, formerly known as United Geophysical Corporation, Florida Gas Transmission Company, Florida Gas Company, and Florida Gas Exploration Company. By a supplemental and amended petition plaintiffs have added as defendants, Drillamex, Inc ., Barber Oil Company and MAPCO, Inc.

The petition alleges that the plaintiffs, Sick and Mott, are the owners of certain oil and gas mineral leases which were obtained by assignment from David J. Robichaux, and which mineral leases are described in an exhibit attached to the petition. It further alleges that the two assignments by which these plaintiffs obtained their ownership had been filed in the conveyance records of Lafourche Parish; that they are attached to the petition as exhibits; that the mineral leases specifically reserved to the mineral lessee the exclusive right to conduct geophysical operations; and that Sick and Mott had assigned a portion of the ownership by letter agreement to the other plaintiff, Wessely Energy Corporation, and that a copy of the agreement was attached to the petition.

A review of the assignments from Robichaux to Sick and Mott shows that they were each executed on March 14, 1972, but not recorded in Lafourche Parish until March 27, 1973. The letter agreement between Sick, Mott and Wessely is dated March 15, 1972, and was accepted on March 16, 1972.

The petition next alleges that on or about June 19, 1972, the defendants entered upon the lands covered by the leases and without the permission of plaintiffs conducted geophysical operations of their own. Plaintiffs asked for damages for this trespass.

The defendants filed a preemptory exception of no right and no cause of action and argued that since the plaintiffs were not the record owners of the mineral leases at the time of the geophysical activity by the defendants, they have not stated a cause of action nor do they have a right of action.

Defendants argue in this court, and we assume the same in the Trial Court, in support of their exception of no cause of action that mineral leases are incorporeal immovables subject to the law of registry, citing LSA-R.S. 31:18 ¹ and LSA-C.C.P. Art. 3664 ². As a result thereof, they further argue that unrecorded mineral lessees have no cause of action for a geophysical trespass because interests in immovable property are completely null and void as to third persons prior to their recordation. And in support they cite LSA-C.C. Art. 2266 ³, LSA-R.S. 9:2721 ⁴, McDuffie v. Walker, 125 La. 152, 51 So. 100 (1909), Blevins v. Manufacturers Record Publishing Co., 235 La. 708, 105 So.2d 392 (1958), Tinsley v. Seismic Explorations, Inc., 239 La. 23, 117 So.2d 897 (1960), Andrepont v. Acadia Drilling Company, 208 So.2d 737 (La.App.3rd Cir. 1968), Reversed on other grounds, 255 La. 347, 231 So.2d 347 (1969), Hargroder v. Columbia Gulf Transmission Company, 278 So.2d 864 (La.App.3rd Cir. 1973), Reversed on other grounds, 290 So.2d 874 (La .1974) and Loeb v. Badalamenti, 192 So.2d 246 (La.App.4th Cir. 1966), Writ refused, 250 La. 24, 193 So.2d 530 (1967).

Plaintiffs contend they have a cause of action for a geophysical trespass under LSA-C.C. Arts. 2315 ⁵ and 2703 ⁶ irrespective of the fact that the trespass was committed prior to the recordation of the assignments of the leases. In essence, plaintiffs argue that a trespasser is not a 'third party' who is protected by the recordation doctrine, citing Bergeron v. Con-Plex, Inc., 255 So.2d 397 (La.App.1st Cir. 1971).

To counter this argument, defendants further argue that Bergeron dealt with a personal right on the part of a surface lessee and not capable of being protected through recordation, whereas in the instant case we are concerned with a real right. They further cite Tinsley for the proposition that there must be a timely recordation before a claim for geophysical trespass can be entertained.

The distinction between the exception of no right of action and that of no cause of action were succinctly explained in Roy O. Martin Lumber Co. v. Saint Denis Securities Co., 225 La. 51, 72 So.2d 257 (1954) as follows:

'Generally speaking, an exception of no right of action serves to question the right of a plaintiff to maintain his suit, i.e., his capacity to sue or his interest in the subject matter of the proceeding, whereas an exception of no cause of action addresses itself to the sufficiency in law of the petition and the exhibits attached thereto. * * * The latter is triable entirely on the face of the papers, while evidence may be received under an exception of no right of action for the purpose of showing that plaintiff does not possess the right he claims or that the right does not exist. * * *.'

As we view the problem presented, the crucial question to a resolution of the issue is whether a trespasser is a third party privileged to the recordation doctrine?

Significantly enough, the Legislature has spoken on who are third persons or third parties by enacting LSA-R.S. 9:2722 which provides:

'Third persons or third parties so protected by and entitled to rely upon the registry laws of Louisiana now in force and effect and as set forth in this Chapter are hereby redefined to be and to include any third person or third party dealing with any such immovable or immovable property or acquiring a real or personal right therein as purchaser, mortgagee, grantee or vendee of servitude or royalty rights, or as lessee in any surface lease or leases or as lessee in any oil, gas or mineral lease and All other third persons or third parties acquiring any real or personal right, privilege or permit relating to or affecting immovable property.' (emphasis supplied)

When the Legislature in redefining who a third person or third party was by use of the language 'dealing with any such immovable or immovable property or acquiring a real or personal right therein as purchaser, mortgagee, grantee or vendee of servitude or royalty rights, or as lessee in any surface lease or leases or as lessee in any oil, gas or mineral lease,' makes it clearly apparent what it intended. Very simply, it is speaking of a purchaser, mortgagee, grantee, vendee or lessee. The last clause in the statute speaks of acquiring a real or personal right, privilege or permit. Therefore, it seems quite obvious merely from a casual reading of this statute that the Legislature never intended to include as a third person or third party a bad faith trespasser, that is a trespasser who does not act under any color of authority or permission granted by any record owner.

As to the argument by defendants that the Tinsley case is controlling, we do not agree. Though it is true that the Tinsley case was also a geophysical trespass case, it was not tried on an exception of no cause or no right of action, but rather on the merits. As it turned out, the defendant had obtained permission from the landowner-lessor to conduct seismic tests. The landowner-lessor was not joined in the suit. The Trial Court rendered judgment for plaintiff and defendant appealed with the Court of Appeal affirming. Though no mention is made of the recordation by plaintiff of his mineral lease, the Supreme Court does give some...