Wier v. Texas Co.

• Decision Date: 18 August 1948
• Docket Number: 2003,2111.,Civ. No. 1915
• Citation: 79 F. Supp. 299
• Parties: WIER et al. v. TEXAS CO. LUDEAU v. TEXAS CO. VIDRINE et al. v. TEXAS CO.
• Court: U.S. District Court — Western District of Louisiana

79 F. Supp. 299

WIER et al. v. TEXAS CO.

LUDEAU v. TEXAS CO.

VIDRINE et al. v. TEXAS CO.

Civ. Nos. 1915, 2003, 2111.

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

August 18, 1948.

COPYRIGHT MATERIAL OMITTED

E. Herman Guillory, of Ville Platte, La., Malcolm E. Lafargue, of Shreveport, La., Joseph A. Loret, of Baton Rouge, La., Atlee P. Steckler, of Ville Platte, La., and George M. Wallace, of Baton Rouge, La., for plaintiffs.

L. K. Benson, Wiley G. Lastrapes and R. C. Milling, all of New Orleans, La., and, W. C. Perrault, of Opelousas, La., for defendant.

PORTERIE, District Judge.

These three suits were originally filed in the Thirteenth Judicial District Court, Evangeline Parish, Louisiana. They were removed to this court by the defendant, The Texas Company, because of diversity of citizenship and the value of the matter in controversy.

The three cases are mutually admitted to be identical, have been consolidated, and this opinion will be written as if there were but one case.

The action is a petitory one; upon defendant's motion plaintiffs were ordered to produce copies of their title deeds.

Motions to dismiss were filed by the defendant; on these we withheld ruling, as follows:

"After reading the elaborate briefs and the cases cited therein, we are of the opinion that on some of the phases of the motions to dismiss, in order to be fair to both sides, evidence should be adduced. This, when followed, will practically put the case on the merits. Accordingly,

"The motions to dismiss herein will be passed upon by the court after the hearing on the merits; the court assuring the parties that the ruling on the motions to dismiss will be passed upon firstly, separately and apart from the case on the merits.

"Thus done, rendered and signed at Alexandria, Louisiana, this the 23rd day of October, 1947."

Upon the court's suggestion that a compromise be considered, mutually diligent efforts at a compromise were made but failed; this took months of time, extending beyond the time of filing the answer.

Then the defendant filed answers and alternative counterclaims (November 24, 1947), repeating as its first defense its original motions to dismiss because the complaints fail to state a claim against defendant upon which relief can be granted. This answer has with it twenty exhibits (D-1 to D-20) to support it.

It is only at the last argument of counsel, upon the motions for a summary judgment in favor of defendant, filed much later, that we came to know that the law of Louisiana does not forbid mineral servitudes to be owned by different persons or corporations at variously-defined depths in the same piece of land. Counsel on both sides, quite frankly, stated that was so; we were not aware of it. This had caused us much difficulty in considering the motions to dismiss and to decide whether or not the contract in this case left a mineral servitude in The Texas Company because an established line of separation at a depth of five hundred feet was fixed in the deed. Since we well know that there could be no separate estates in the same land, one mineral and the other real or superficial, and not knowing at the time that several mineral servitudes at varying stated levels may be held by different owners in the same land, it is only now that we see that the deed we have to interpret in this case leaves the plaintiffs the owners of the property in fee; but qualified to the extent that there is a mineral servitude left to The Texas Company, beginning at the depth of five hundred feet from the top and thence to the center of the earth. Conclusively and clearly, laboring under this misapprehension, we should not have delayed decision on the motions to dismiss, but should have sustained them. See Clement v. Dunn, 168 La. 394, 122 So. 122; Coyle, et al. v. North American Oil Consolidated, et al., 201 La. 99, 9 So.2d 473.

Then motions for summary judgment under Federal Rules of Civil Procedure, rule 56, 28 U.S.C.A. following section 723c, were filed (April 30, 1948) by the defendant. The first paragraph reads, as follows: "That the pleadings, depositions and admissions on file, together with the affidavits hereinafter referred to, show that there is no genuine issue as to any material fact and that Defendant is entitled to a judgment as a matter of law, rejecting and dismissing the demands of plaintiffs herein."

The following affidavits are filed in support of the motions:

1. Affidavit of Mr. Leo LaFleur, Deputy Clerk of Court, dated April 26, 1948 with exhibits thereto attached.

2. Affidavit of Mr. C. E. Yates, dated April 22, 1948, with exhibits thereto attached.

3. Affidavit of Mr. R. C. Stewart, dated April 22, 1948 with exhibit thereto attached.

4. Affidavit of Mr. H. C. Comish, Assistant Secretary of State, dated April 16, 1948, with exhibits thereto attached.

5. Affidavit of Mr. Lawrence K. Benson, dated April 23, 1948, with exhibit attached.

The plaintiffs have filed the affidavit of E. B. Norman, Jr. to oppose the motion. The defendant filed objection to the admissibility of the facts, if any, contained in the affidavit on the various grounds of irrelevancy, immateriality, and as containing conclusions of law by the affiant; and all being irreparably tainted because tending to vary, alter and contradict written instruments, contrary to Article 2276 of the Louisiana Revised Civil Code.

On the 29th day of March, 1924 The Texas Company sold the land involved here to E. B. Norman & Co. and we extract from this act the following language: "* * * and the said E. B. Norman and Company agrees to purchase the surface of the following described tracts of land to the depth of Five Hundred (500). feet from the surface thereof and including the timber thereon * * *". And later in the act: "It is expressly agreed and understood that the conveyance of the land and timber herein referred to shall be only the surface of the land with the timber, said surface to extend to a depth of five hundred feet to a line drawn horizontally with the surface, and The Texas Company hereby reserves and excepts all the sub-soil below said depth and the gas, oil and other minerals therein contained, and with the right of ingress and egress on the surface to carry on operations for the development of said minerals."

By an act dated May 13, 1924, The Texas Company sold the land involved here to E. B. Norman & Co. This act contains the following clauses:

"It is expressly understood and agreed that all of the subsoil, or subjacent lands of said tracts of land, together with all of the oil, gas and other minerals therein, underlying and below a line or plane drawn horizontally at a depth of five hundred (500) feet from the surface of said tracts of land, is hereby excepted and reserved by said The Texas Company from and apart from the lands conveyed; that said The Texas Company also reserves and retains, and the said E. B. Norman & Company grants to the said The Texas Company the right of ingress and egress on, across and through the surface of the said tracts of land conveyed, being in depth five hundred (500) feet from the surface of said tracts of land to a horizontal line or plane drawn through said tracts of land; and also the right of reasonable occupation and possession of the same for the drilling of wells, erection of structures, laying of pipe line, or lines, storage tanks, reservoirs and other works thereon necessary and incidental for carrying on operations for the development and production of said minerals, or any of them in and from said subsoil, or subjacent lands reserved and excepted from the tracts of land hereinabove sold.

"It is further expressly mutually understood and agreed by the parties hereto that were it not for this reservation and exception of the subsoil from the lands herein granted and sold, and of all the minerals aforesaid therein contained, this sale and conveyance would not have been made."

The proper interpretation and effect of these clauses are the meat of the questions involved in these cases. Concurrently, since the three actions are petitory in nature, under the law of Louisiana, the plaintiffs must recover on the strength of their own title and defendant's title is not at issue until the plaintiffs have disclosed an apparent valid title in themselves. Simmons et al. v. Carter et al., 186 La. 377, 172 So. 425.

On February 11, 1929, there was executed between E. B. Norman & Co. and The Texas Company an agreement (dubbed mutually by counsel "Extention Agreement") with respect to the lands and minerals of May 13, 1924. After a description of the same lands and after a repetition of the same paragraph in reference to the reservations made in favor of The Texas Company as were contained in the original deed of May 13, 1924, this Extension Agreement then recites:

"Whereas, in consideration of said money advance and the other concessions made by said The Texas Company in said amended and supplemental agreement of date the 11th day of February A.D. 1929, to which supplemental agreement reference is here made for a fuller explanation and certainty, said E. B. Norman and Company, appearer herein, acknowledging the sufficiency and adequacy of said consideration for the purpose hereof, does by these presents, for itself, its successors and assigns, take notice of the reservation in said deed of date May 13, 1924, hereinbefore referred to and described, whereby said The Texas Company has reserved to itself, its successors and assigns, the subsoil or subjacent lands of said tracts of land, together with all of the oil, gas and other minerals therein and underlying the surface of said described tracts of land, together with the right of ingress and egress on, across and through the surface of said tracts of land conveyed, and also the right of reasonable occupancy and possession of same for the drilling of wells, erection of structures, laying of pipe line or lines, storage tanks, reservoirs and...