White v. Ouachita Natural Gas Co., Inc.

• Decision Date: 07 July 1933
• Docket Number: 31414
• Citation: 177 La. 1052,150 So. 15
• Court: Louisiana Supreme Court
• Parties: WHITE v. OUACHITA NATURAL GAS CO., Inc., et al

150 So. 15

177 La. 1052

WHITE v. OUACHITA NATURAL GAS CO., Inc., et al

No. 31414

Supreme Court of Louisiana

July 7, 1933

Rehearing Denied October 3, 1933

Appeal from Fourth Judicial District Court, Parish of Ouachita; J T. Shell, Judge.

Action by Joseph R. White against the Ouachita Natural Gas Company Inc., and others. From a judgment of dismissal, plaintiff appeals.

Affirmed.

W. F. Pipes and McHenry, Montgomery, Lamkin & Lamkin, all of Monroe, for appellant.

Sholars & Gunby and Hudson, Potts & Bernstein, all of Monroe, for appellee Ouachita Natural Gas Co., Inc.

Pugh, Grimmet & Boatner and J. N. Marcantel, all of Shreveport, for appellee Magnolia Gas Co.

OPINION

ST. PAUL, Justice.

On June 11, 1928, plaintiff acquired from James Nolan a certain 70 acres of land in Ouachita parish described as a tract of land lying partly in lot 1, section 28, and in the north half of section 40, township 20 north, range 4 east; being the same property which James Nolan had acquired from H. H. Nolan on January 16, 1928, and being part of a larger tract (200 acres) which H. H. Nolan had acquired from J. B. Edwards on March 30, 1925.

J. B. Edwards had acquired the whole of said larger (200 acres) tract from J. L. Cox on November 14, 1919, under the following description: "Lot Number one (1) of Section Twenty-eight (28) and all that part of Section Forty (40), known as McLaughlin Headright or confirmation, lying North of a line running in a northeasterly and southwesterly direction dividing said McLaughlin Headright, or Confirmation, Section Forty, into two parts of equal widths, each containing two hundred acres, and all situated in Township Twenty North, Range Four East, and being the same property acquired by this vendor by purchase from Arthur L. Smith on May 22nd, 1919 as per deed of record in Notarial Book No. 92, page 385."

I.

On and before December 14, 1912, Arthur L. Smith, aforesaid, owned a certain plantation or tract of land in Ouachita parish consisting of 3091.2 acres as follows: "150 acres at the junction of Ouachita River and Bayou Bartholomew, in Township 20 North, Range 4 East; 360.21 acres in Sections 4 and 5 of Township 19 North, Range 4 East; and 2581.08 acres in Sections 20, 27, 28, 29, 30, 31, 32, 33, 37, 38, 39, 41, 42, and 43 of Township 20 North, Range 4 East [none in Section 40]."

On December 14, 1912, Arthur L. Smith added to his tract of land, by purchase at sheriff's sale from Mrs. Ella D. Helmick et al., 200 acres of land described as follows: "Lot No. One (1) Section Twenty-eight (28), and all that portion of Section Forty (40) known as the McLaughlin Headright or Confirmation lying North of line running in a Northeast and Southwest direction dividing said McLaughlin Headright or Confirmation, Section Forty (40), into two equal parts of equal width, containing two hundred (200) acres more or less, all in township twenty (20) north of range four (4) east, and being the same property acquired by said mortgagors from Miss Emily P. Cole and John T. Cole, Tutor, by authentic act to effect a partition, on January 19th, 1881, Book 'Y', page 169 of the records of Ouachita Parish Louisiana."

II.

On October 4, 1916, Arthur L. Smith executed an oil and gas lease to the Ouachita Natural Gas & Oil Company on his 3291.29 acres consisting of, "200 acres [being] Lot 1 sec. 28 & 1/2 of Sec. 40 lying N. of line running in a N. E. direction [no range or township given]; 360.21 acres in Sections 4 and 5, township 19 North, Range 4 East; 2581.08 acres in Sections 20, 27, 28, 29, 30, 31, 32, 33, 37, 38, 39, 41, 42, and 43 of township 20 North, Range 4 East; and 150 acres at the junction of Ouachita River and Bayou Bartholomew (in Township 20 North, Range 4 East)."

Which lease provided that "if any of the above land is mis-described or any part left out same shall be corrected by either party without further consideration."

And also provided that the lessor, "by furnishing his own pipe and connections, shall have sufficient gas free of cost for use in houses on the premises."

III.

When A. L. Smith sold to J. L. Cox the 200 acres in section 40 of township 20 north, range 4 east, the deed contained a reservation as follows: "It is expressly stipulated and understood as a part of this conveyance that the said Arthur L. Smith, for himself, his heirs and assigns, reserves all of the oil, gas, sulphur, ore and other minerals of every nature and kind within and under the said land, with complete and exclusive development privileges and rights of ingress and egress for teams and vehicles, including rail and tram roads; and this reservation and ownership of said minerals, including the right of developing and exploiting the said lands for any and all the said minerals, is to vest in the said vendor, his successors, heirs and assigns, in perpetuity, the intention being to sell the surface rights only and reserving in full, unconditional and unequivocal ownership all of the minerals of whatsoever kind and character and the exclusive right of mining and exploiting same."

But there seems to have arisen some doubt concerning the above reservation, as to whether Smith's assigns acquired the property of the gas pipes on the premises sold and the right to use the gas in the houses on said premises; and accordingly, on January 5, 1928, whilst H. H. Nolan was still the owner of the whole 200 acres sold by Smith to Cox, and before he sold 70 acres thereof to James Nolan (January 16, 1928), who afterwards sold the same to White, the plaintiff (June 11, 1928), said H. H. Nolan and the heirs of A. L. Smith entered into an agreement wherein it was recited that Smith had executed the aforementioned oil and gas lease to the Ouachita Natural Gas & Oil Company and recognized that, notwithstanding, the reservation in the deed from Smith to Cox, nevertheless it was the true intention of said Smith to assign to his vendee in said deed the right, in so far as the lands conveyed were concerned, to use gas in the houses on said property free of charge, as provided for in said original lease contract, and was likewise his intention to convey unto said vendeeand his assigns all pipe lines then constructed on the lands conveyed for the purpose of delivering gas to the houses on the property conveyed. And accordingly: "In consideration of the premises, the amount received by the said A. L. Smith in the deed to Cox aforesaid, and in order to evidence the true intention of the said A. L. Smith and his vendee, Joseph L. Cox, the said appearers do hereby assign and deliver, with full subrogation to all of their rights therein, unto the said H. H. Nolan, his heirs and assigns, all pipe lines on the lands hereinabove described, and the right to take, receive and use free of cost in the houses on the land acquired by the said H. H. Nolan, gas produced from any and all of the land included in the lease from A. L. Smith to Ouachita Natural Gas Company, Inc., dated October 4th 1916, and recorded in Conveyance Book 81, page 1033 Of the records of Ouachita Parish, Louisiana."

This agreement, though executed whilst H. H. Nolan was the owner of the 200 acres and before he sold 70 acres thereof to James Nolan who afterwards sold to White, was not recorded until June 11, 1929; that is to say, until after H. H. Nolan had sold to James Nolan and James Nolan had sold to White.

IV.

This is an action for slander of title. Plaintiff claims the defendants are slandering his title by claiming an oil and gas lease thereon. Defendants claim that the oil and gas lease executed on October 4, 1916, by Arthur L. Smith to the Ouachita Natural Gas & Oil Company covers plaintiff's land and is still a valid and subsisting lease.

The only questions involved are: (1) The sufficiency of the description in the oil and gas lease; and (2) whether said lease has been lost by the prescription of 10 years for nonuser.

V.

We think the description was sufficient. "It suffices if the description be 'such as to enable the court to determine with certainty, with the aid of such extrinsic evidence as...