Ware v. Baucum
| Decision Date | 28 April 1952 |
| Docket Number | No. 40190,40190 |
| Citation | 59 So.2d 182,221 La. 259 |
| Parties | WARE et al. v. BAUCUM et al. |
| Court | Louisiana Supreme Court |
Russell E. Gahagan, Natchitoches, for defendants-appellants.
John A. Dixon, Jr., and Booth, Lockard & Jack, all of Shreveport, for plaintiff-appellee.
Contested in this jactitation action is a one-half mineral interest in and to approximately 1182 acres of land in Claiborne Parish. The mineral interest, known in our jurisprudence as a servitude on the land, is claimed by defendants under a certain instrument executed more than ten years prior to the institution of this suit on May 11, 1949.
Concluding that plaintiffs held the required possession as owners, the district court maintained the action and ordered that defendants bring a suit within 60 days in revindication of their rights, or, in default thereof, that they be forever barred from setting up any claims, rights or privileges to the property. Defendants are appealing from the judgment.
In their petition plaintiffs alleged that they are the owners and in the actual physical possession of the land; and that defendants have slandered their title by the recordation of an affidavit asserting a one-half mineral interest in the property and by attempting to negotiate an oil and gas lease on that interest. Plaintiffs prayed that defendants be ordered to disclaim any title whatsoever to the property or to assert herein any rights they may have thereto; and that after due proceedings there be judgment cancelling the inscription of the affidavit and declaring defendants to be without interest in the property.
To the suit defendants tendered exceptions of no right and no cause of action. Thereafter, with full reservation of their rights under the exceptions, they answered, admitting that plaintiffs own and are in corporeal possession of the surface rights of the property but denying that the latter are in possession of the disputed one-half mineral interest. Further, defendants, in the answer, set out their claim to such mineral servitude (created by an instrument executed more than ten years before the institution of this suit), they particularly averring that in a notarial act dated June 18, 1945 (within the ten year prescriptive period) the then sole owner of the surface rights acknowledged defendants' ownership to a one-half mineral interest. Concluding, defendants alleged that plaintiffs cannot maintain this slander of title suit, not having possession of such mineral interest, and they prayed that the demands of plaintiffs be rejected.
Plaintiffs, thereupon, obtained the issuance of a rule to show cause why judgment should not be rendered on the face of the pleadings. In their motion therefor they showed that the answer of defendants did not convert the suit into a petitory action, but placed at issue only the question of possession; and that, under Act 241 of 1946, LSA-RS 13:5063 et seq., the issue of possession must be raised by pleadings filed in limine litis.
This rule, after a hearing, was recalled, the court holding that defendants' exception of no right of action was sufficient to put at issue the question of plaintiffs' possession.
Plaintiffs then amended their petition by setting out in detail a claim to the ownership of all minerals in and under the land, and by pleading specially an extinguishment of defendants' asserted mineral servitude by the prescription of ten years liberandi causa.
Thereafter, defendants' exception of no right of action, levelled at plaintiffs' alleged lack of possession of the contested mineral rights, came on for trial; and it was tried on stipulations of counsel and on documentary evidence. Among the stipulations was one to the effect that 'there has been no exploration for oil, gas or other minerals, nor production of oil, gas or other minerals, on the land in controversy in this suit since November 21, 1936.' Following the trial, the exception of no right of action was overruled.
This jactitation action was then submitted for decision on the evidence adduced during the trial of such exception; and the district court rendered the judgment, hereinabove first mentioned, from which the defendants are appealing.
In view of the pleadings of the parties, certain statements of their counsel, and the judgment of the district court, we must treat this proceeding strictly and exclusively as an action in jactitation that has not been converted into a petitory action. Thus, as before shown, plaintiffs prayed that defendants be ordered to disclaim title or to assert their rights against the property; and defendants challenged plaintiffs' possession of the mineral interest not only under their exception of no right of action but also in their answer in which they prayed merely that the demands of plaintiff be rejected. Confronted with similar pleadings in Rudd v. Land Company, Inc., 188 La. 490, 177 So. 583, 585, this court held the proceedings to be strictly jactitatory and, in so holding, observed:
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'* * * The allegations and prayer of the petition and the allegations and prayer of the answer taken together stamp the proceeding as a jactitation suit and not as a petitory action.'
Again, in plaintiffs' motion for the rule for judgment on the face of the pleadings it is said that defendants' answer has not converted the jactitation suit into a petitory action. Too, the judgment of the district court ordered defendants to institute an action in revendication within 60 days. Moreover, in his brief to this court, counsel for defendants states:
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* * *' (Brackets ours.)
On the subject of the jactitation action, such as we are here considering, the opinion in Siegel v. Helis, 186 La. 506, 172 So. 768, provides a lengthy and exhaustive discussion. Therein, it is shown that the action is a remedy of necessity created by our jurisprudence beginning in 1821, not by our Codes; and being such the courts may regulate it so as to make it effective for the purpose for which it was created. The object of the action is to protect possession, not to establish title; and the relief sought therein is that defendant be ordered to bring suit to establish his pretentions, pay damages for the slander, and that the plaintiff be quieted in his possession. Unless the defendant in his answer chooses to tender the issue of title, an issue of that kind cannot be decided; the only possible issues determinable are the possession of plaintiff and the slander by the defendant.
The jactitation action having been created long prior to the establishment of the oil and gas industry in this state, it seems obvious that the remedy was not originally intended for application in adjudging a disputed mineral interest. Again, such seeming inapplicability as an...
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