author: JANVIER, Judge.

text:
    SPANJA v. THIBODAUX BOILER WORKS, Inc., et al.
    No. 18640.
    Court of Appeal of Louisiana. Orleans.
    Jan. 5, 1948.
    Rehearing Granted March 1, 3.948.-

      Oliver S. Livaudais and Frank Wm. Hart, both of New Orleans, for plaintiff and ap-pellee.
    St. Clair Adams & Son, of New Orleans (P. A. Bienvenu, of New Orleans, of counsel), for defendant and appellee Thibodaux Boiler Woi-ks, Inc.
    Monroe & Lemann and Walter J. Suthon, Jr., both of New Orleans, for defendant and appellant Texas Co.
   JANVIER, Judge.

This matter comes before us on motion of Thibodaux Boiler Works, Inc., one of the defendants, to dismiss the appeal taken by the other defendant, the Texas Company, from a judgment sustaining an exception of no cause or right of action filed by the Thibodaux Boiler Works, Inc. A thorough explanation of the relationships among the various parties is necessary to an understanding of the ground on which the motion to dismiss the appeal is based.

This is a suit for compensation brought under Act No. 20 of 1914, as amended. Sam Spanja is plaintiff and there are, or were, two defendants, Thibodaux Boiler Works, Inc., and The Texas Company.

At the time of the occurrence of the events on which the suit is based The Texas Company was drilling an oil well in the Louisiana marshes, some 6 or 8 miles from Empire a small settlement on the west bank of the Mississippi River, below the City of New Orleans, and it became necessary to make repairs to a steam boiler at the scene of the drilling operations. The Thibodaux Boiler Works, Inc. was employed to make these repairs, and, for that purpose, was transporting two pieces of heavy welding machinery to the scene at which the boiler was located.

Spanja and his brother operated a boat which was owned by Spanja and another person, and they ran this boat between the scene of the well and Empire, transporting back and forth various supplies, machinery and employees needed in the drilling of the well. The Texas Company instructed Span-ja to take the boat to Empire so that the machinery of the Thibodaux Company might be loaded upon it and then carried to the scene of the drilling operations. While one of the pieces of machinery was being transferred from the bank of the canal in which the boat was docked to the deck of the vessel, it fell from the “skids” and Spanja, who was assisting with the loading operations, was seriously injured.

Spanja brought the suit in tort against both companies, praying for solidary judgment against them for $8,904.12. He did not seek alternative relief in the form of compensation from either of the defendants, taking the position that he was not an employee of The Texas Company, but was operating his boat under contract and not as an employee of that Company.

On appeal we dismissed Spanja’s suit, holding that there was an employer-employee relationship between Spanja and each of the defendant corporations, and that any claim which he might have against either, or both, should be controlled exclusively by the Workmen’s Compensation Laws of Louisiana. See Spanja v. Thibo-daux Boiler Works, Inc., et al., La.App., 2 So.2d 668. Application for writ of cer-tiorari was made to the Supreme Court and the application was refused.

Spanja then filed this suit in compensation making both corporations defendant, and praying for solidary judgment against them. Both defendants filed exceptions of no cause or right of action. The exception filed by the Thibodaux Boiler Works, Inc. was sustained and the suit as to that corporation was ordered dismissed. It is from that judgment that The Texas Company has appealed. Spanja also has appealed from that judgment. It is the appeal of The Texas Company which the Thibo-daux Boiler Works, Inc. now seeks to dismiss. The ground on which we are asked to dismiss the appeal is, to quote the motion to dismiss:

“That the defendant and appellant, The Texas Company, does not have the legal right to take an appeal from the judgment in favor of its codefendant and appellee, Thibodaux Boiler Works, Inc., which was rendered and signed on the 10th day of January, 1946, and which maintained an exception of no cause or right of action filed by said defendant to the petition of the plaintiff herein, Sam Spanja.”

The Texas Company resists the attempt to dismiss the appeal, contending that a solidary judgment is sought against the two defendants and that where there are two defendants sought to be held solidarily, either has an interest in seeing that the other is not dismissed from the suit since, if a soli-dary judgment is rendered against them, and one of them pays the judgment that one may call upon the other to contribute. This argument of The Texas Company is based on what the Supreme Court of Louisiana held in Quatray v. Wicker, 178 La. 289, 151 So. 208, 212. In that case there was involved a claim ex delicto against two alleged joint tort feasors. There was a soli-dary judgment against both which was paid by one of them and subrogation was taken to all the rights of the plaintiff against the other, and then, by attachment, the defendant who had paid the judgment sought to collect from the other defendant half of the amount thereof. This was bitterly resisted by the other judgment debtor. The Supreme Court held that the other defendant must contribute “half of the amount of the judgment.”

Counsel for the Thibodaux Boiler Works, Inc., in seekmg to dismiss the appeal, argue that a solidary obligor, who may be so unfortunate as to be compelled to pay the entire obligation, has no right to compel the other obligor to return to him any part of-the amount which he has paid, and, in support of this argument, they cite several cases, notably Thalheim v. Suhren et al., 18 La.App. 46, 137 So. 874 and Rumpf v. Callo et al., 16 La.App. 12, 132 So. 763, both of which squarely upheld the contention made. These cases, however, were decided before the Supreme Court announced its conclusion in Quatray v. Wicker, supra, and must therefore yield to the authority of that decision.

But the fact that it is now established in our jurisprudence that where joint tort feasors are held to be solidarily liable contribution may be demanded from the other by the one which pays the judgment is not determinative of the issue which confronts us here because, in our opinion, there is involved here no question of solidary liability. Where an employee who is regularly in the employ of one master is borrowed by another master, and is injured or killed in an accident, under circumstances which make the Workmen’s Compensation Laws applicable, the two masters do not become solidarily liable. Either the one or the other is alone liable.

Mr. Horovitz in his work “Injury and Death Under Workmen’s Compensation Laws,” on page 236, says:

“A loan of an employee may or may not, make the borrower the employer, depending on the right to control at the time of the injury — essentially a question of fact.”

In Ranson-Rooney v. Overseas Railway, Inc., et al., 17 La.App. 205, 134 So. 765, this court found a case in which it was contended that an employee of one corporation had become the borrowed employee of the other, and that, therefore, any claim for his death could not be brought in tort but must be presented in compensation against the borrowing employer. The Supreme Court granted a writ of certiorari and, in Rooney v. Overseas Railway, Inc.,. 173 La. 183, 136 So. 486, held that under the facts of that case Rooney had not become the borrowed employee of the second corporation but continued as the employee of the original master. The Supreme Court did not disagree with the conclusion of this court that if the work had been of such a nature as would not have been undertaken by his original master, he would have become the borrowed employee of the second master and could have recovered in compensation from that second master.

In Tarr v. Hecla Coal & Coke Co., 265 Pa. 519, 109 A. 224, 225 is found a very interesting case involving the right of a loaned employee to recover from the borrowing master in compensation. There the Supreme Court of Pennsylvania said:

“ * * * A master may loan his servant, with the latter’s consent, to another under such circumstances as to create for the .time a new relation of master and servant; the regular servant of one may thus for the time being become the special servant of another, and that was done here.
“ ‘Where one person lends his servant to another for a particular employment, the servant, for anything done in that particular employment, must be dealt with as a servant of the man to whom he is lent, although he remains the general servant of the person who lent him. The test is whether, in the particular service which he is engaged to perform, he continues subject to the direction and control of his master, or becomes subject to that of the party to whom he is lent or hired.’ Puhlman v. Excelsior Express & Standard Cab Co., 259 Pa. 393, 103 A. 218, L.R.A.1918E, 118; 26 Cyc. 1285; Bailey on Personal Injuries (2d Ed.) c. 3, § 25.”

That court also considered the fact that the wages of the borrowed employee had never been fixed by agreement and said:

“ * * * That his wages had not been fixed is unimportant; the law will imply a reasonable compensation. The finding of a temporary employment by defendant is not inconsistent with the finding of a general employment by the Frick Coke Company, and being one of fact we are concluded thereby.”

See also Schneider’s Workmen’s Compensation Law (2nd Ed.) Vol. I, Sec. 24, pp. 213, 214, 71 C.J., Sec. 139-143 pp. 403-408.

Since our Supreme Court, by its refusal to grant a writ of certiorari in the matter of Spanja v. Thibodaux Boiler Works, Inc., La.App., 2 So.2d 668, has approved our finding that Spanja was the borrowed employee of the Thibodaux Boiler Works, though he remained in the general employ of The Texas Company, we feel that the only question left open is which of the employers is liable to him in compensation. It is either the one or the other but not both.

Obviously this case is not one which arises under Section 6 of the Act. That section has no application here. We see no reason why The Texas Company could not contract with the Thibodaux Boiler Works to do the special job which was involved here and to arrange for the loading and unloading of its own machinery which was necessary for the doing of that job. In Rooney v. Overseas Ry., Inc., et al [173 La. 183, 136 So. 487], supra, the Supreme Court said that the work was not such as would be done “in the usual course of defendants’ business, which was that of loading, unloading, and operating the Seatrain,” and that “this, of itself, suffices to show that section 6 of the act has no, application here.” See, also, Horrell v. Gulf & Valley Cotton Oil Co., 15 La.App. 603, 131 So. 709.

Since Section 6 of the Act has no application here, if either of the defendants is liable to the plaintiff, it has no redress against the other. Therefore, neither has the right to insist that the other be retained in the suit as a party defendant.

The motion to dismiss the appeal is sustained and the appeal of The Texas Company is dismissed at its cost.

Motion to dismiss appeal sustained; appeal of the Texas Company dismissed.


source: Caselaw Access Project

author: PONDER, Justice. HAMITER, Justice

license: Public Domain

text:
    212 La. 605
    ST. MARTIN LAND CO. v. PINCKNEY et al.
    No. 38163.
    Supreme Court of Louisiana.
    Nov. 10, 1947.

      Donald R. Brian, of New Orleans, James J. Martin, of St. Martinsville, and Blanchard, Goldstein, Walker & O’Quin, of Shreveport, for appellant.
    Herold, Cousin & Herold, of Shreveport, Grover Sellers, of Austin, Tex., and Scott Gaines, -of Sulphur Springs, Tex., for ap-pellees.
   PONDER, Justice.

This is an action in jactitation or slander of title.

The St. Martin Land Company, the plaintiff, conveyed to Emerson C. Russell a 1/16 royalty in all oil to be produced and saved from a large tract of land, owned by the plaintiff, lying in the Parish of St. Martin. The defendants are the assignees of the 1/16 royalty. Each owns a fractional interest of the 1/16 royalty. The plaintiff is seeking in this suit to have the defendants either disclaim any title to the 1/16 royalty or assert their rights by suit. The plaintiff also seeks damages in the amount of $5,-000.00. The suit is based on the ground that more than ten years have elapsed since the plaintiff conveyed the 1/16 royalty interest to Emerson C. Russell on April 26, 1928 and that, by reason of prescription liberandi cause of more than ten years, the deed conveying such interest is void and of no effect. There was judgment in the lower court rejecting the plaintiff’s demands and recognizing the defendants to be the owners of the royalty interest in various fractional parts. The plaintiff has appealed.

It appears that Emerson C. Russell and W. H. Cocke entered into an agreement with the plaintiff for the purchase of the 1/16 royalty involved herein, but, as the purchase price was too large for them to handle, they entered into an agreement with Hogg Brothers of Houston, Texas, who furnished the funds to pay the consideration of the sale with the understanding that Russell and Cocke could purchase whatever interest they later desired by reimbursing Hogg Brothers the cost of such portions. The royalty deed was placed in the name of Emerson C. Russell. In an instrument dated February 24, 1928, Russell acknowledged that Hogg Brothers owned the royalty interest conveyed to him by the plaintiff. On , March 6, thereafter,. Russell formally assigned the 1/16 royalty interest to Hogg Brothers. The assignment was recorded on May 18, 1929 in the conveyance records of St. Martin Parish.

There was an agreement between Hogg Brothers and Russell and Cocke whereby a portion of the royalty was set aside in order that Russell and Cocke might purchase it. This portion of the royalty interest was subsequently assigned to Pinck-ney and Picton, two of the defendants herein, by consent of the parties. The original agreement was amended on June 19, 1928 whereby Hogg Brothers agreed that they would transfer to Russell and Codee 22½% of the 1/16 royalty interest upon payment of their note at maturity, February 23, 1929, of $6,834.38, held by Hogg Brothers. Emerson C. Russell died on November 18, 1928 at his residence in Houston, Texas, before the transaction was consummated. ‘His succession was opened in Texas and ancillary proceedings were instituted in Calcasieu Parish, March 23, 1929. Nat U. Collier and Franklin J. Russell were appointed co-executors in conformity with the terms of Russell’s will and recognized as such in the ancillary proceedings in Calcasieu Parish. Cocke, some time after Russell’s déath, with the consent of the executors, entered into an agreement with Hogg Brothers to separate the contract and the indebtedness into two equal parts in order that Cocke might acquire his interest in the royalty independently of the Russell estate. Eleven; and one-fourth per cent interest in the 1/16 royalty was assigned by Hogg Brothers to Cocke on September 9, 1929. On account of the estate being heavily involved and the lack of funds, the executors were unable to pay the indebtedness of the estate and acquire the other 11}4% interest for the estate. However, an agreement was reached between the executors and Hogg Brothers some time in March, 1929, wherein one-half of the 11¼% interest of the 1/16 royalty would be transferred to the executors, in their capacity as such, and the indebtedness of the estate cancelled. It appears that this adjustment was reached for the mutual benefit of all the parties. On December 27, 1929, pursuant thereto, Hogg Brothers assigned to the executors, “in their capacity as executors of the estate of Emerson C. Russell * * * for themselves as said executors, their successors and assigns,” the 5⅝% of the 1/16 royalty (which is one-half of the 11⅛%) for a recited consideration of $10.00 and other valuable consideration. Among the inventories taken in the succession of Russell was one taken in St. Martin Parish. This inventory is dated April 9, 1929 and filed on April 12, 1929, and we find that the 5%% of the 1/16 royalty was listed therein as the property of Russell’s estate. No further steps were taken in the succession until September 5, 1939, more than ten years from the date Emerson C. Russell first acquired the 1/16 royalty interest, when the heirs of Russell were placed in possession of the estate in Louisiana and the executors were discharged by order of the district court. One of Russell’s heirs, a daughter, Janet, born on April 24, 1924, was a minor. The present suit was filed on October 5, 1944. We find that a disclaimer, dated October 17, 1944, was filed in the record on October 19, thereafter, wherein the executors disclaimed any interest in the royalties and stated that they accepted the royalty deed as shown in the instrument only in their official capacity as executors for the benefit of the widow in community and heirs of Emerson C. Russell deceased. They further stated that they have never claimed any interest in the royalties whatsoever.

The plaintiff concedes that prescription does not run against the minor, Janet.Russel, now Sirles but contends that the minor acquired no interest in the property until after the right, which she claims, had been extinguished by prescription. The plaintiff takes the position that the executors were not authorized to purchase the royalty interest and, therefore, the title to it is vested in the executors individually and not in the succession or heirs whom they represented. , j

Under the plain provisions of Article 3554 of the Revised Civil Code, prescription .does not run against a minor except in the cases specified by law. This article is contained in the section1 of the Code dealing with liberative prescription and the cases specified by law where prescription runs against a minor have no application to the liberative prescription of ten years.

Under the Provisions of Article 1660 of the Revised Civil Code, it is thz duty of executors who have been given full seizin, as was done in • this case, to execute the legacies contained in the will and to cause any other conservatory acts of the property to be made. A suit for this purpose may be brought by the executor in his own right and capacity under the provisions of Articles 1135 and 1660, R.C.C. Smith v. Sinnott, 44 La.Ann. 51, 10 So. 413.

An executor may buy land for a succession which he is administering upon which his testator has a mortgage and vendor’s lien for the purpose of saving the debt and bringing back property to the succession. Guilbeau v. Millard, Manning’s Unrep.Cas. 308.

There is no question but what the executors were doing a conservatory act and one which redounded to the benefit of the succession when they salvaged from the contract the royalty interest. But • be that as it may, only the heirs alone have the right to question the authority'of the executors in effecting a compromise, settlement or adjustment. Delabigarre v. Second Municipality of New Orleans, 3 La. Ann. 230.

Moreover, in the case of Standard Oil Co. of Louisiana v. Futral et al., 204 La. 215, 15 So.2d 65, 73, wherein a person by the name of Van Geffen had acquired a mineral interest in certain lands from Futral in his own name and afterwards had addressed a letter to other parties showing they had an interest in the minerals that he had purchased from Futral, this Court had this to say: “Since Van Geffen is not complaining, but concedes that the others named in the letter own the undivided interests in the minerals as set out therein, Futral has no right to complain, because he does not now deny that by hié sale to Van Geffen he divested himself of title to an undivided 1/64 of' his minerals or mineral rights.”

Since the deed is made to the executors in their official capacity and they have at no time claimed any interest in the royalties, it is our opinion that title vested in the estate of Emerson C. Russell at the time the royalty interest was acquired by them on December 27, 1929, before prescription had accrued. Consequently, the minor’s interest became vested in her at that time, subject to administration by the executors.

It is contended that the minority of Janet Russell interrupts the running of prescription against the other defendants herein. The contention is based on the ground that a royalty right, of the'nature involved herein, is a personal servitude and that the minority of one of the co-owners interrupts the running-of prescription against the other co-owners under the provisions of Article 802 of the Revised Civil Code.

No useful purpose could be gained in considering the arguments advanced to support this contention for the reason that this Court passed on a royalty right of a similar character in the case of Vincent v. Bullock, 192 La. 1, 187 So. 35 and arrived at the conclusion that it was not a servitude' but a conditional obligation, depending bn an uncertain' event, that prescribed in ten years if the event did not happen prior thereto. We refused to apply Article 792 of the Revised Civil Code which deals with obstacles preventing the use of a servitude. We pointed out that a royalty right, unlike a servitude, imposes no obligation on the part of the royalty owner to explore for and develop minerals. We cited with approval the analysis of the word “royalty” in Mrs. Harriett Spiller Daggett work on mineral rights in Louisiana. The author states that the'legal nature of royalty must be grounded upon the contract in which it appears. After discussing royalties grounded upon lease and servitudes, the following observation was made: “If the word is used in the contract to indicate a passive interest in possible production, without the leasing or production privilege usually inherent in the right, then a new and as yet uninterpreted situation appears upon which the court has mot declared itself fully.” The royalty right involved in the Bullock case was a passive interest in possible production and the court passed directly on a royalty of that nature and held that such right prescribed in ten years, if there was no production prior thereto.

At the time the Civil Code was adopted • the oil industry was -not in existence. Consequently, the framers of the Code did not contemplate the various questions and problems arising in the course of the industry. The Legislature has not seen fit to adopt statutes sufficient to guide the courts in determining the various controversies arising in this industry. Under such circumstances, the court was compelled to apply the articles of the Civil Code that were most applicable to the nature of the rights asserted. In doing so, mineral rights, strictly speaking, were deemed in the nature of a servitude because a privilege was granted to explore for and develop the minerals. In order to do this, it was necessary to go upon the land. The right being in the nature of a servitude, the codal articles dealing with servitudes were applied and the prescription of non-usage, dealing with servitudes, was applied when the right had not' been exercised within ten years. A mineral right is necessarily superior to the royalty right in that, in addition to the right to share in any production, the owner of a mineral right can go upon the land to explore and develop minerals. A mineral right prescribes in ten years if it has not been used. There would seem to be no just reason why a passive royalty right should exist for a longer period of time, simply because it could not be used or prescription could not be interrupted. When the Bullock case was presented to this Court some rule had to be established and we arrived at the conclusion that the rule established therein was the most reasonable one. It must be borne in mind that we had no exact rule to apply and consequently applied the articles of the Code most applicable to the nature of the right involved. But be that as it may, the Bullock case was handed down in 1939 and its pronouncements have been affirmed by this Court and have remained as a guide for those dealing in oil royalties for a number of years. It has established a rule of property. It is well settled that decisions of the highest court of a State on the subject of oil rights establish rules of property and should not be reversed unless it be by an act of the Legislature even should a different rule be deemed more logical. Roberson v. Pioneer Gas Co., 173 La. 313, 137 So. 46, 82 A.L.R. 1264 and the authorities cited therein. Our conclusion is therefore that the minority of Janet Russell does not interrupt the running of prescription against the other defendants. Since there was no production of oil on the lands within the ten year period,’ all the royalty rights of the defendants, other than Janet Russell, have prescribed.

It is contended that the royalty right has been maintained in effect as against any prescription by its continuous exercise, in the sense that not more than ten years have elapsed between bona fide drilling for production of oil, regardless of whether such drilling be successful or not. This contention is answered by our above conclusions. We arrived at the conclusion that the right was not a servitude, but a conditional obligation depending on an uncertain event that prescribed in ten years if the event, production of oil, did not occur within that period of time.

It is contended that the Legislature by Act No. 232 of 1944 has interpreted the holding in Vincent v. Bullock as applying the liberative prescription of ten years to a royalty right, carrying with it. all the rules relating to the suspension of that prescription and particularly the rule laid down in the case of Sample v. Whitaker, 172 La. 722, 135 So. 38.

Section 1 of Act No. 232 of 1944 reads as follows: “Be it enacted by the Legislature of Louisiana, That despite the fact that among co-proprietors of any mineral or royalty right there ¡ be one or more against whom prescription cannot run, as, for instance, a minor, the liberative prescription shall nevertheless run against the co-proprietors not under legal disability.”

It is pointed out that mineral royalty rights are placed in the same category by the act. As we take it, the legislative intent is not in conflict with the holding in the Bullock case for the reason that it is directed at the same result, viz.: that ' the minority of one of the co-owners would not prevent the running of prescription against his coproprietor. At the time the Legislature passed this Act in 1944 the •holding in the Bullock case had been in exr istence some five years. This Legislature or prior Legislatures did not see fit, to modify or change the pronouncenients made in the Bullock case. Since the Legislature has not seen fit to change the law as it was interpreted in the Bullock case, we must assume that it is not disposed to do so. Succession of Sciaccaluga, 177 La. 796, 149 So. 458.

The plaintiff evidently abandoned his claim for damages because it was not urged in the brief or in the argument on this appeal. Moreover, there is no evidence in the record upon which we could assess damages with any degree of certainty.

For the reasons assigned the judgment of the district court is reversed and set aside. It is now ordered that the plaintiff have judgment against the defendants — The University of Texas, Stephen L. Pinckney, W. H. Cocke, David M. Pictori, Jr., Mrs. Lady Parnell Russell Groverman, Franklin J. Russell, individually and as guardian of the interdict Beatrice Russell, and Nat U. Collier — decreeing the conveyance from the St. Martin Land 'Company to Emerson C. Russell of date January S, 1928 and April 25, 1928, recorded in Conveyance Book 108, Folio 474, Entry No. 48,732 null and void in so far as they are concerned. The plea of prescription is sustained'except as to Janet Russell Sirles.' It is further decreed that Janet Russell Sirles is hereby recognized as owner of ½ of 5⅝% of 1/16 royalty interest in all oils produced from the lands described in the royalty deed from St. Martin Land Company to Emerson C. Russell, aforementioned in this decree. All costs to be paid by the defendants with the exception of Janet Russell Sirles.

O’NIELL, C. J, concurs in the decree.

HAMITER, J., concurs in the decree and assigns written reasons therefor.

HAMITER, Justice

(concurring).

The principal issue herein, which is whether or not a mineral royalty is a servitude such as would render applicable the provisions of Civil Code, Article 802, has been properly determined, in my opinion, on the authority of Vincent et al. v. Bullock et al., 192 La. 1, 1-87 So. 35, the decision in which was and is unquestionably correct. My views, however, are not wholly in accord with the reasons assigned for the decision in the Vincent case.

I agree that a mineral royalty, whether sold or reserved, is not a servitude. The mineral servitude is a right in the land, constituting a part of the ownership itself. It is a jus in re. The owner of that right has the privilege of going upon the property for the purpose of exploring for the minerals. Furthermore, he is a necessary party in the execution of any lease thereon and is entitled to receive (unless specifically waived) a proportionate share of the bonus and the delay rentals paid under the lease. The mineral royalty, on the other hand, is only a right attached to the ownership of the land; it forms no part of the thing itself. It is a jus ad rem.- The owner of the mineral royalty, whose role is entirely passive, has no privilege of ingress or egress to the land, and, hence, cannot produce the minerals. Furthermore, his consent for the execution of a lease is not required, nor is he entitled to participate in the bonus or the delay rentals that may be paid under its terms. The right that he has is but an appendage of the right of the mineral owner, and is merely one to share in the production of oil, gas and other minerals if and when they are produced. '

Also, I agree that a mineral royalty (not a rent royalty restricted to a particular lease) is a real obligation or right in favor of the person acquiring it, his heirs or assigns. Obligations Of this kind, imposed on the land by the owner thereof, are authorized by Civil Code, Article 2015.

But I do not agree with the conclusion in the Vincent case that a mineral royalty is an obligation dependent on a suspensive condition within the meaning and intendment of Civil Code, Articles 2013, 2021 and 2038. If it were such an obligation, the operation of the contract, according to the very provisions of those articles, would be suspended until the occurrence of the event upon which it is conditioned (the production of minerals); and, hence, the ap¡-plicable liberative prescription would commence to run only from that time.

A mineral royalty, in my opinion, constitutes merely the sale of a hope as authorized and contemplated by Civil Code, Article 2451 which reads: “It also happens sometimes that an uncertain hope is sold; as the fisher sells a haul of his net before he throws it; and, although he should catch nothing, the sale still exists, because it was the hope that was sold, together with the right to have what might be caught.”

An excellent treatise on that article is contained in 15 Tulane Law Review, 531. Therein the author, after quoting the codal provision, comments in part:

“The sale of a hope had its origin in the •Roman law. In the sale of future goods, Roman law distinguished between emptio spei and emptio rei speratae. The difference between the two contracts was basic, and a discussion of each will conduce to a better understanding of the sale of a hope. The emptio rei speratae was the sale of a thing conditioned upon its coming into existence; whereas the emptio spei was the sale of a hope. If the contract were emptio rei speratae, neither party was bound until the subject of the sale came into existence. It was analogous to the common-law ‘agreement to sell,’ in which there is no binding sale until the subject of the sale is produced. In the emptio spei, or sale of a hope, the purchaser was liable for the purchase price even if the seller did not produce the thing which was the object of the hope. The theory underlying this transaction was that the seller sold to the buyer the hope that the former had of acquiring the thing.

“The next inquiry to be made is into the mode of interpretation, that is, what factors determined whether a contract was a sale of a hope or an emptio rei speratae. It was agreed universally that the intention of the parties was to govern. But, since the intention of the parties was not always clear, the Roman law indulged in presumptions of intention. Where the contract was for the sale of things having a potential existence, i. e., things which might be expected in the ordinary course of events to come into existence, the contract was presumed to be emptio rei speratae. Classic examples of such things were future crops and the young of slaves and of animals. On the other hand, where the contract was for the sale of things which did not have a potential existence, as, for example, the cast of a net, it was presumed that the parties intended to enter into a sale of a hope. This fundamentum divisionis of potentiality of existence was not conclusive of intention. It only raised a presumption, which always yielded to a clear indication that the parties intended the contrary.

“The distinction between emptio spei and emptio rei speratae 'was not at all arbitrary. It was presumed that when a person bought a thing which would in the ordinary course of events come into existence, he did not assume the risk of its not becoming existent. Therefore, if it were not produced, he was not liable. On the other hand, when a person bought a thing which did not have a potential existence, it was presumed that he did assume the risk of its not becoming existent. Thus, it is evident that the Roman law’s distinction between emptio spei and emptio rei speratae is explicable on the theory of risk of loss.”

A contract conveying a mineral royalty cannot be considered as a sale of a thing having a potential existence, i. e., something which might be expected in the ordinary course of events to come into being. If it could be so considered, it would be the kind of agreement provided for in Civil Code, Article 2450 reading: “A sale is sometimes made of a thing to come; as of what shall accrue from an estate, of animals yet unborn, or such like other things, although not yet existing.” And under such an agreement the purchaser would be entitled to a return of the price paid in the event of failure -to produce the minerals. Losecco v. Gregory, 108 La. 648, 32 So. 985.

Rather the mineral royalty contract can only be treated as the sale of something not having a potential existence — the sale of an‘uncertain hope. This is so because, as is universally recognized, the exploration for, minerals is .very costly, as'a result of which it is often difficult to. find someone financially able and willing to conduct drilling operations; also, the obtaining of production, even- after the commencement of the drilling operations, is exceedingly uncertain; highly speculative. What .the purchaser acquires therefore is the hope that exploration or drilling will take place on the land affected by his royalty, together with the additional hope that it will be successful, thereby affording him the privilege of sharing in the production.

When royalty is sold, as the purchaser knows, the landowner does not obligate himself either to develop the land or to lease to a third person for exploration purposes. But the purchaser also knows that it is to the landowner’s interest to lease the property on as favorable terms as he can in order to obtain a bonus, delay rentals, and possibly drilling with resulting royalties from production; and it is this knowledge which furnishes him the hope of gain from the royalty purchase and justifies his paying for it.

Through the confection of the sale the purchaser has hazarded the price of the royalty upon the occurrence of a chain of uncertain events in the forging of which he plays no part. He has, as it were, bet his money that the landowner will want to iease his land for the production of minerals; that such owner obtains a lessee who is financially able to and will commence soon and prosecute diligently operations for the production of minerals; and that such operations will prove successful. He has bought an interest in what may be caught if and when the net is cast, but he has nothing to do with the net’s casting or with deciding when it will ,be cast.

Moreover, the rights of the purchaser under the acquired royalty are complete (the hope of gain commences) when the act of sale is executed, at which time also the obligations of the seller are satisfied. Accordingly, the purchaser is not entitled to a return of the price paid if the uncertain hope purchased, produces no gain. Losecco v. Gregory, supra.

And since there is an unconditional, completed sale on the signing of the deed, prescription liberandi causa necessarily commences to run at that time. But which one of the several specific prescriptions included in that general classification is applicable? This question was not answered in the Vincent case, although a prescription of ten years was there applied to a mineral royalty.

In Section 3 of Chapter 3 of Title XXIII of our Code are found the articles, 3528 through 3555, which treat “Of the Prescription which Operates a Release from Debt”, —the general classification above referred to as prescription liberandi causa. , The! first five articles in that section, 3528 through 3533, are general in nature and relate to all of the liberatiye prescriptions. The remaining articles are grouped in paragraphs, each of the first five of which concerns a specific prescription, and the last or sixth furnishes only rules. The specific prescriptions dealt with by the first five paragraphs are respectively the following: Paragraph 1, Article 3534 through Article 3537 — of one year; Paragraph' 2, Articles 3538 and 3539 — of three years; Paragraph 3, Article 3540 through Article 3543 — of five years-; Paragraph 4, Article 3544, through Article 3547 — of ten years; Paragraph 5, Article 3548 — of thirty years.

From a casual reading of the articles dealing with the specific prescriptions of one, three and five years, it is clear that none of them is applicable to a mineral royalty right.

Neither can there be applied, in my opinion, the provision which deals with the prescription of thirty years, it reading: “Article 3548 * * * All actions for immovable property, or for an entire estate, as a succession, are prescribed by thirty years.” Although a royalty interest is a real right, a real obligation, a suit to establish the right or have it recognized would not be an action for an immovable within the intendment of that article. As before shown, it is not a jus in re; it is merely a jus ad rem. It is only a right attached to the ownership of the immovable to share in production if and when obtained.

This being true, there is left for consideration ' the articles dealing with the specific prescription of ten years, only two of which could possibly be pertinent. One of these is Article 3546, reading: “The rights of usufruct, use and habitation and servitudes are lost by nonuse for ten years”; This article can not ■ apply, however, because an owner of each of the rights therein referred to has some control or management over the property affected; a mineral royalty owner has none.

But the other article is applicable, I think, and provides the specific liberative prescription governing a mineral royalty. It reads: “Article 3544 * * * In general, all personal actions, except those before enumerated, are prescribed by ten years.” When a mineral royalty holder sues to establish his interest, the claim asserted is only for recognition of the right to share in the production resulting or which may result from successful exploration on the land. Thus, his suit is a personal action, although the interest on which the litigation is predicated is a real right or obligation (since it was stipulated to run with the land). It is not and cannot be considered as a real action, in the sense of being a suit to recover an immovable.

This difference is made clear by our decision in Da Ponte v. Ogden et al., 161 La. 378, 108 So. 777, 781. Therein plaintiffs sued to recover an undivided ⅛ interest in certain lands, and they coupled with the action a demand for an accounting of all funds received by the defendants from the land by way of royalties from oil or other minerals. One of the defenses urged was a plea of prescription of ten years based on Civil Code, Article 3544. In disposing of the plea this court said:

“The action is a mixed action. It partakes in its nature the character of both a real and a personal action.
“It is a real action in so far as it seeks to recover an undivided interest in the lands and to compel defendants to execute title. It is personal in so far as it calls on defendants to account for and pay over one-sixth. of the royalties received from said land.
“Article 3548, Civil Code, provides that all actions for immovable property are prescribed by 30 years. The case clearly falls within the terms of this article of the Code. The purpose of the action is to recover an interest in an immovable, based on an agreement to sell, and to compel defendants to comply with that agreement by the execution of a ,'deed. It is apparent, therefore, that that part of the demand is a real, and in no sense a personal, action.
“The demand for the return of money had and received is in the strict sense a personal action, subject to the prescription of 10 years. * * * ”

The doctrine of the Da Ponte case was inferentially approved in Parker et al. v. Ohio Oil Co., 191 La. 896, 186 So. 604, decided on the same date as Vincent et al. v. Bullock et al., supra. In holding that the prescription of three years was applicable to an action between the lessee and lessor for the proceeds of royalties under an oil and gas lease, the court distinguished the Da Ponte case ‘by showing that in it there did not exist the relationship of lessor, and lessee.

By analogy there are numerous other cases in our jurisprudence which support the conclusion that a mineral royalty, although a real right, in that it affects the land,, is governed by Article 3544 which provides for the prescribing of a personal action by ten years. Thus, that prescription was held to apply in R. E. E. DeMontluzin Co., Ltd., v. New Orleans & N. E. R. Co., 166 La. 822, 118 So. 33 (an action of a vendor under a contract authorizing recovery of land on railroad’s failure to construct a station pursuant to an agreement to that effect); in Louisiana Oil Refining Corporation v. Gandy, 168 La. 37, 121 So. 183, Snelling v. Adair, 196 La. 624, 199 So. 782, and Haas et al. v. Opelousas Mercantile Co., Ltd., 197 La. 500, 2 So.2d 3 (actions to reform deeds affecting immov-ables); in Bandel v. Sabine Lumber Co., 194 La. 31, 193 So. 359 (an action by purchaser of immovables against defaulting vendor to recover illegally diverted fruits and revenues); and in Louisiana Truck & Orange Land Co., Ltd., v. Page, 199 La. 1, 5 So.2d 365 (an action to set aside a sale of realty for nonpayment of the purchase price).

For these reasons I concur in the holding herein, which is predicated primarily on the decision in the Vincent case, that the mineral royalty in question was not a servitude such as would render applicable the provisions of Civil Code, Article 802, and that it, except as to the interest of the minor Janet Russell Sirles, was lost by the operation of the prescription of ten years lib-erandi causa.


author: HAMITER, Justice.

text:
    212 La. 632
    UNION SULPHUR CO., Inc. v. LOGNION et al.
    No. 38176.
    Supreme Court of Louisiana.
    Nov. 10, 1947.
    Wallace H. Adams,' of Jennings, for defendants-appellánts Mrs. Zilmere Pitre and Chas. R. Houssiere.
    Plauche & S.tockwell, of Lake Charles, for defendant-appellant Paul Zimmerman.
    Percy Smith, of Jennings, for appellee and appellant Eugene Lognion.
    Plauche & Stockwell, of Lake Charles, for defendant-appellee Jules O. Daigle.
   HAMITER, Justice.

The Union Sulphur Company, Inc., because of two separate controversies relative to royalties due for oil produced under its lease on a 40-acre tract of land in Jefferson Davis Parish, instituted this concursus proceeding, depositing in the registry of the court a sum of money representing the disputed interests and citing the respective claimants.

The first controversy concerns Eugene Lognion (the landowner), on the one hand, and Mrs. Zilmere Pitre, Charles R. Hous-siere and Paul Zimmerman, on the other. The second involves a dispute between the named landowner and the Reverend Jules O. Daigle. Those opposing the landowner found their claims on royalty deeds executed by him. In bar of the claims, in this proceeding, he pleaded specially the prescription of ten years liberandi causa.

Except as to a 1/6144 royalty interest acquired by Mrs. Pitre from her daughter, Dorothy Bell Pitre, the district court decreed that the claims of Mrs. Pitre, Hous-siere and Zimmerman had prescribed; and from the adverse ruling those claimants appealed. The court, however, overruled the plea of prescription as to the claim of Jules O. Daigle and recognized him as the owner of a 1/512 royalty interest. From this part of the judgment Lognion appealed.

The claims of Mrs. Pitre, Houssiere and Zimmerman stem from an instrument of September .12, 1934, by which Eugene Log-nion, the landowner, conveyed to Clarphy Pitre “a royalty interest of l/256th out of all of the oil, gas, sulphur and other minerals, that may be produced * * * ” from the land in question. On May 3, 1935, Pitre conveyed one-half of his acquisition, or a 1/512 royalty interest to Paul Zimmerman. The latter, on September 19, 1935, sold a 1/1024 mineral royalty (one-half of that acquired) to Elias Isaac, and he, on May 7, 1941, conveyed the same interest to Charles R. Houssiere.

Clarphy Pitre died August 24, 1939, being survived by his widow in community, Mrs. Zilmere Pitre, and also six children. At that time all of the children were majors except Dorothy Bell Pitre, the date of whose birth was May 20, 1920. On the death of Clarphy Pitre, his six children inherited one-half of the unsold portion of the royalty that he acquired from Eugene Lognion, and the remaining one-half belonged to the surviving widow m community, Mrs. Pitre. On October 16, 1939, the minor Dorothy Bell Pitre was emancipated by a judgment of court; and on October 20, 1939, the six children (including the emancipated minor) sold and conveyed tin-to their mother, Mrs. Zilmere Pitre, their royalty interests (each had inherited a 1/6144 interest), along with other property.

Operations for drilling on the land in question were commenced by the Union Sulphur Company, Inc., the lessee, on August 8, 1944; actual drilling was begun August 26, 1944; and the well so started was completed as a producer on October 5, 1944,

It is conceded in this court by counsel for Eugene Lognion (in oral argument, in his brief, and in an answer to the appeal) that the royalty interest which Dorothy Bell Pitre inherited (1/6144), and .later conveyed to her toother, has not been lost by prescription. In this connection the record shows, as above pointed out, that the original royalty deed from Lognion to Pitre was dated September -12, 1934; that at the time of Pitre’s death on August 24, 1939, Dorothy Bell Pitre was 19 years and some months of age; that she was. emancipated on October 16, 1939; and that the well was completed as a producer of oil on October 5, 1944. Thus, assuming that prescription is suspended as to a minor, Dorothy Bell Pitre owned a 1/6144 interest for 52 days while a minor (between the dates of her father’s death and the judicial emancipation) ; and when this period of suspension is considered in computing prescription from the date of the original royalty deed to that of the well’s completion it must be concluded that, as to her interest, the required ten years did not elapse.

As to the remainder of the royalty interest asserted by Mrs. Pitre and also as to the claims of Houssiere and Zimmerman, counsel -for those persons, to quote from their brief, contend:

“(a) That a mineral royalty interest is a servitude and thus indivisible, that prescription does not run against a servitude owned by á minor, and that, the prescription having been suspended as to the minor, it was suspended as to the major co-owners.
“(b) That if a mineral royalty interest is not a servitude, it is a real right which, like a servitude, is indivisible and that, since the liberative prescription of ten years could not run against the minor, it was suspended also as to the major co-owners of the minor.
• “(c) That actual drilling operations were commenced on said land on August 26, 1944, less than ten years from the date of the original royalty deed from Eugene Lognion to Clarphy Pitre (Tr. 210) and that such operations interrupted the prescription of ten years liberandi causa.”

The first two contentions are answered adversely to those appellants in the cases of St. Martin Land Co. v. Pinckney, La.Sup., 33 So.2d 169, and Humble Oil & Refining Co. v. Guillory et al. (on rehearing), 33 So.2d 182 the decisions in which are today being rendered. In reaffirming the decision in Vincent et al. v. Bullock et al., 192 La. 1, 187 So. 35, we definitely hold in such cases that a mineral royalty (as distinguished from mineral rights) is not a servitude; and, hence, the legal principle that the minority of a person effects a suspension of prescription as to his major co-proprietors, which is found in Civil Code, Article 802 and relates exclusively to servitudes, is inapplicable to it.

Also without merit, in our opinion, is the third contention. If the interest acquired by Clarphy Pitre from the landowner had been mineral rights (a servitude under our jurisprudence), the matter of the commencement of drilling operations would be of importance. The operations would have constituted a use of the servitude — and exercise of the rights obtained —-such as is made necessary by Civil Code, Articles 789 and 3546 to prevent the loss ■of the servitude through the liberative prescription of ten years. Lynn v. Harrington et al., 193 La. 877, 192 So. 517. But since Clarphy Pitre’s interest was only a mineral royalty (not a servitude), .the doctrine relating to the exercising or use of the rights is inapplicable, and the incident referred to herein of commencing drilling operations is of no moment. What Pitre acquired was merely the right to share in the production of oil, gas and other minerals if and when they were produced. To receive the benefits of his interest no active efforts whatever were required on his part. His role was entirely passive; his right was dormant until production resulted. Thus, the date of the original royalty deed and that of production were the determining factors respecting the issue of the prescriptibility of his interest. And since more than ten years' intervened between those dates, the rights of those holding under and through him (except the minor, Dorothy Bell Pitre), were lost.

Proceeding now to a consideration of the other controversy litigated in this cause, we find from the record that on September 24, 1934, Eugene Lognion, the landowner, executed an instrument reciting a conveyance to Jules 0. Daigle of “½56 of the oil, gas and other minerals, in and under and that may be produced from * * *” the land in question and other described tracts. The sale was made, according to the act, for the sum of $55.00 cash and other good, valuable and sufficient considerations.

Later, specifically on October 16, 1936, both of those persons signed another instrument styled a “Correction Deed” in which Lognion was referred to as vendor and Daigle as vendee. Therein, the act of sale of September 24, 1934, was mentioned and described; then the subscribers agreed and stipulated:

“Whereas, it now appears that the said Act of Sale doe^ not correctly describe and define the property which was intended to be conveyed for the reason that the said act describes the property conveyed as being ½58 of the oil, gas and other minerals in and under and that may be produced from the said described lands, whereas it was intended that the said act should describe the property conveyed as being ½56 royalty interest in and to all the oil, gas and other minerals in, -under and which imay be produced and saved from the said described tract of land.

“Now, therefore, in consideration of the premises, and for the purpose of correcting the recitals in the said original Act of Sale and for the purpose of conveying the property which was actually intended to be conveyed, the vendor herein does hy these presents declare that he did intend in the said original Act and does now by these presents grant, bargain, sell, convey and deliver with full guarantee and warranty of title and possession and with complete transfer and subrogation to all the vendor’s rights and actions of warranty against all former owners and vendors, unto the vendee, Jules O. Daigle, his heirs and assigns, the following described property, to-wit:

“One-two hundred fifty-sixth (½56) royalty interest, being equal to and being one-two hundred fifty sixth (½6«) of all the oil, ■gas and other minerals in, under and that may be produced and saved from the following described tracts of land, situated in Jefferson Davis Parish, Louisiana, to-wit

(Here follows the lánd described in the act of-September 24, 1934).

Further in the instrument of October 16, 1936, it was recited:

“And now the vendee, the said Jules O. Daigle, appears herein and accepts the said .property as herein set out and with the provisions of this present act.
“It is further stipulated that the above mentioned original Act of Sale is and shall be null and void in so far as the same may be in conflict with the provisions of this Act.”

On January 6, 1937, still another correction deed (so styled at its top) was jointly executed by Lognion, as vendor; and Daigle, as vendee. It described in detail ■both the original act of sale and the first -correction deed, and thereafter recited:

“Whereas it now appears that neither the said Act of Sale nor the Correction Deed .above mentioned correctly describe and define .the property which was actually intended to be conveyed for the reason that the said Act of Sale, as amended by the said Correction Deed, describes the property -conveyed as being One-two hundred fifty-, ■sixth (1/256) royalty interest in and to all the oil, gas and other minerals in, under and to be produced and saved from the said described tract of land, whereas it was intended that the said Act of Sale and Correction Deed should describe the property conveyed as being One-five hundred twelfth (1/512) royalty interest in and to all the oil, gas and other minerals in, under and which may be produced and saved from the said described tract of land:
“Now, therefore, in consideration of the premises, and for the purpose of correcting the recitals in the said original Act of Sale and the said Correction Deed, and for the. purpose of conveying the property which was actually intended to be conveyed,, the vendor herein does by these presents declare that he did intend in the said original Act and by the said Correction Deed -and does now by these presents grant, bargain, sell, convey and deliver with full guarantee and warranty of title and possession and with complete transfer and subrogation to all the vendor’s rights and actions of warranty against all former owners and vendors, unto the vendee, Jules O. Daigle, his heirs and assigns, the following described property, to-wit:
“One-five hundred twelfth (1/512) royalty interest, being equal to and being one,five hundred twelfth (1/512) .of all the oil, gas and other minerals in, under and that may be produced and saved from the following described tracts of land, situated in Jefferson Davis Parish, Louisiana, to-wit:”

(Here follows a recitation of the same land described in each of the previous acts.)

: Further, in this second correction deed, the parties stipulated: .

' “And now the Vendee, the said Jules O. Daigle, appears herein and accepts the said property as herein set out and with the provisions of this present act.
“It is further stipulated that the above mentioned original Act of Sale and Correction Deed are and shall be null and void in so far as the same may be in conflict with the provisions of this Act.”

Counsel for Jules O.’ Diagle do not urge that their ’ client acquired mineral rights (a servitude) under those transactions. They claim for him the acquisition of only a royalty interest of 1/512. But they argue, first, that the instruments dated October 16, 1936 and January 6, 1937, respectively, created new rights, i. e., rights arising subsequently to those conveyed in the original deed of September 24, 1934; and that, since the producing well of October 5, 1944, was completed within ten years from the dates of the creation of the new rights, prescription has not run.

Our appreciation of the instruments relied on is that they amounted to nothing more than efforts to correct errors previously committed. Each, at its top, is styled “Correction Deed”; and the very verbiage employed therein discloses clearly a desire to carry out an intention sought to be, and which should have been, evidenced by the original deed. This conclusion is fortified by the fact that neither recites any new or specific consideration. True, both correction deeds declare that the original act of sale, insofar as it conflicted, was “null and void”; but this is unimportant. The declaration was mere surplusage, for without it the original deed would have been superseded just as effectively. The new acts were executed, obviously, to stand in stead and in place of the first deed and to carry out the original intention of the contracting persons. They did not purpose or effect the creation of new rights.

Counsel further argue, in the alternative, that the two correction deeds amounted to an acknowledgment such as would interrupt the prescription of ten years then running. To interrupt the current of that prescription the mere acknowledgment of the existence of the right is insufficient. There must appear also an intention of the person making the acknowledgment that the accruing prescription be interrupted. Bremer v. North Central Texas Oil Co., Inc., et al., 185 La. 917, 171 So. 75; Goldsmith v. McCoy, 190 La. 320, 182 So. 519; Vincent et al. v. Bullock, supra. Neither of the correction deeds discloses the existence of such an intention. If an intention of that kind had existed (the vendee testified that it did, but the landowner emphatically denied this) clearly a declaration evidencing it would have been incorporated in one or both of the correction deeds.

Lastly, and again alternatively, counsel contend that the commencement of drilling operations on August 26, 1944, interrupted the running of prescription. For the same reasons given hereinabove in connection with our discussion of the claims of Mrs. Pitre, Houssiere and Zimmerman, those operations in no manner prevented the accrual of prescription which resulted prior to the well’s completion.

For the reasons assigned the judgment of the district court is reversed insofar as it decreed Jules O. Daigle to be the owner of a 1/512 royalty interest, and there is now judgment sustaining the plea of prescription of Eugene Lognion as to that interest and recognizing him as the owner thereof, entitled as such to be paid proportionately out of the funds deposited in the registry of the court.

As it respects the controversy between Eugene Lognion, on the one hand, and Mrs. Zilmere Pitre, Charles R. Houssiere and Paul Zimmerman, on the other, the judgment of the district court is affirmed.

All costs shall be paid out of the deposited funds; however, Eugene Lognion is granted judgment against the said Mrs. Pitre, Houssiere and Zimmerman for one-half of such costs and against Jules O. Daigle for the remaining one-half, pursuant to the provisions of Act No. 242 of 1944.