Union Producing Co. v. Parkes

• Decision Date: 23 December 1940
• Docket Number: No. 123.,123.
• Citation: 40 F. Supp. 163
• Parties: UNION PRODUCING CO. v. PARKES.
• Court: U.S. District Court — Western District of Louisiana

40 F. Supp. 163

UNION PRODUCING CO. v. PARKES.

No. 123.

District Court, W. D. Louisiana, Monroe Division.

December 23, 1940.

Sholars & Gunby, and Frank O. Looney, all of Monroe, La., for plaintiff.

Oliver & Digby, of Monroe, La., for defendant.

DAWKINS, District Judge.

Basing jurisdiction of this court upon diverse citizenship, plaintiff seeks, first, a declaratory judgment that it is the owner of the mineral rights under some fifty acres of land, unaffected by any question of prescription in the state law, and in the alternative (1) to recover damages in the sum of $7,222.22 with interest, and (2) a decree relieving it from the terms of a rental provision as to other lands and from the obligation to furnish gas to defendant at a named price.

Defendant filed pleas of prescription and of no cause of action, and subject thereto an answer to each article of the petition specifically. Thereafter, an amended petition was filed, as to which, by agreement these exceptions and motions are also to apply.

The plea of prescription is based upon Article 789 of the Louisiana Civil Code and the decisions of the state courts to the effect that any conveyance or reservation of an interest in the minerals vests only a servitude, apart from the fee, which is prescribed after a lapse of ten years, unless exercised or extended by express written agreement.

Counsel have stipulated the correctness of the contract sued upon, attached to and made part of the petition, that no drilling or other development has been had upon any of the property covered thereby; but that annually, since its execution, defendant has exercised the privilege of renting the cultivatable portion of the property described, other than the fifty acres upon which the mineral rights are involved here, and has likewise exercised an option to purchase gas for his domestic use at the price of five cents per thousand, all as provided in the contract.

The exception of no cause of action appears to be directed first, to the petition as a whole, and secondly, to the alternative demand.

The contract of conveyance is dated February 16, 1929, and the petition in this case was filed July 19, 1939, or some six months more than ten years after its execution. It conveyed a body of land of some four hundred acres in fee simple, and as to the property here involved, recited: "Less and except the following: Fifty (50) acres of land surrounding the residence now occupied by said vendor, which 50 acre tract is especially retained by vendor herein, and excepted from this sale, being more accurately described as follows:" (There then follows a long surveyor's technical description by metes and bounds of the fifty acres surrounding vendor's home and reserved as a home site.)

The following is further quoted therefrom: "b. Oil, Gas and Mineral Rights: All of the oil, gas and minerals lying and being in, on or under the following described land, to-wit: Fifty (50) acres of land surrounding the residence now occupied by said vendor, and more accurately described as follows:"

Other pertinent provisions are as follows:

"The oil, gas and mineral rights in on and under the above described fifty (50) acres of land are sold along with the land herein sold as a part of the same tract, and it is specifically understood by the vendor and vendee that the drilling of a well on any part of the said land shall be construed, as the drilling of a well on this fifty (50) acre tract as against a plea of prescription based on the non-development of this fifty (50) acre tract, but regardless of any construction that any court may hereafter place upon this paragraph it is specifically understood that the vendee shall have the full period of thirty (30) years from the date hereof within which to begin developments on this fifty (50) acre tract of land.

"The reference herein to batture rights and rights of accession and accretion, and to Curtis Island in Isle Lake, are not and shall not be understood to be words of enumeration and limitation, but only a reference to these specific rights, leaving to the grantee all the rights accruing to it hereunder, the intention being that the grantor keeps and does not convey the fifty (50) acres herein described, but that the grantee acquires all the land except the fifty (50) acres and the oil, gas and mineral rights of the whole tract, together with all the rights of accretion accruing to the whole tract."

* * * * *

"The parties hereto have and do hereby further covenant and agree:

"1. That the Industrial Gas Company agrees to lease and does lease to the said Jule Parks, or to his wife, or to his children, for farm purposes, all the land now in cultivation that it has acquired herein from the said Jules Parks, at a price of One ($1.00) Dollar per acre per year. Lessee shall keep the fences up and the cabins in repair, and the Industrial Gas Company shall be at no expense except the payment of taxes on the said land.

"For the year 1929 no rent shall be paid and thereafter this lease shall remain in force from year to year at the option of the said lessee, provided, that in the event the Industrial Gas Company desires to use or occupy or to sell or dispose of all or any part of this land it may terminate this lease as to that part that it wants to use, occupy, sell or dispose of, upon one years notice.

"This lease is not assignable and extends only to the said Jules Parks, his widow or his children.

"2. That the Industrial Gas Company will furnish and supply to the said Jule Parks, his widow or his children, gas for his residence and plantation cabins on Baker and Loch Lomond plantations at five (5¢) cents per 1,000 cubic feet, measured at the well on a pressure of 10 ounces above an atmospheric pressure of 14.4 pounds. This agreement will continue in force at the option of the said Jule Parks so long as the said Industrial Gas Company produces gas from the land, and mineral rights herein sold or from other gas wells owned by the said Industrial Gas Company that the said Jule Parks may desire to receive the said gas from. The said Jule Parks shall connect his pipe...