author: ROLAND L. BELSOME, Judge. BAGNERIS, Judge, JONES, J., ROLAND L. BELSOME, Judge.

text:
    VIEUX CARRE PROPERTY OWNERS, RESIDENTS AND ASSOCIATES, INC. and French Quarter Citizens for the Preservation of Residential Quality, Inc. v. HOTEL ROYAL, L.L.C.
    No. 2009-CA-0641.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 3, 2010.
    Rehearing Granted Oct. 8, 2010.
    Opinion on Rehearing Jan. 5, 2011.
    Stuart H. Smith, Alan D. Alario II, Smith Stag, L.L.C., Barry J. Cooper, Jr., Cooper Law Firm, L.L.C., New Orleans, LA, for Plaintiffs/Appellants.

      Harry Rosenberg, Phelps Dunbar L.L.P., Peter J. Butler, Jr., Barrett R. Stephens, Richard G. Passler, Breazeale, Sachse & Wilson, LLP, New Orleans, LA, for Hotel Royal, L.L.C., 1004-1006 Royal, L.L.C., 625 St. Philip, L.L.C. and The Melrose Group, L.L.C.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

laThis appeal raises the question of whether private associations have standing to prevent alleged violations of New Orleans city zoning ordinances. Because the organizations in this case have failed to demonstrate a real and actual interest in the suit, we affirm the trial court’s grant of the exception of no right of action.

FACTS AND PROCEDURAL HISTORY

Appellants in this case, Vieux Carre Property Owners, Residents, and Associates, Inc., and French Quarter Citizens for the Preservation of Residential Quality, Inc., filed a petition for declaratory judgment and preliminary and permanent injunction on September 13, 2006 against Appellees, Hotel Royal, L.L.C., 1004-1006 Royal, L.L.C., 625 St. Philip, L.L.C., and The Melrose Group, L.L.C., alleging that Appellees violated various zoning ordinances. These violations, Appellants argued, threatened the character and charm of the French Quarter.

On January 4, 2007, Appellees filed Exceptions of Lack of Procedural Capacity, No Right of Action, and Prescription, asserting that Appellants lacked standing to file and prosecute their claims against Ap-pellees and that such claims were also prescribed. Appellees further argued that Appellants, as private, non-governmental, and non-profit corporations, were improperly assuming the role of a |4government agency in seeking to enjoin Appellees from allegedly violating zoning ordinances of the City of New Orleans. Appellees further argued that Appellants had no right of action because they failed to allege special or actual damages to themselves, as opposed to society in general.

After a hearing on January 16, 2009, the trial court sustained Appellees’ Exception of No Right of Action. This appeal followed.

STANDARD OF REVIEW

“Peremptory exceptions raising the objection of no right of action are reviewed de novo on appeal as they involve questions of law.” Fortier v. Hughes, 2009-0180, p. 2 (La.App. 4 Cir. 6/17/09), 15 So.3d 1185, 1186.

DISCUSSION

Louisiana has adopted the U.S. Supreme Court’s three-part test articulated in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977), to determine whether an association has standing to bring suit on behalf of its members. The Hunt test is comprised of the following three elements: 1) whether the members would otherwise be able to bring suit in their own right; 2) whether the interests the association wishes to protect are pertinent to its purpose; and 3) neither the claim asserted by the association nor the relief sought requires the participation of individual members. Louisiana Hotel Motel Association v. Parish of East Baton Rouge, 385 So.2d 1193, 1196 (La.1980)(citing Hunt, 432 U.S. 333, 97 S.Ct. 2434 (emphasis added)). In applying Hunt, the Louisiana Supreme Court has held that to meet the first prong of the Hunt test, the association must first establish harm that is not only “present or probable for the future,” but also establish harm that would occur to the members themselves. Louisiana Hotel-Motel, 385 So.2d at 1197.

In this case, Appellants’ petition alleges violations of the Comprehensive Zoning Ordinances of the City of New Orleans with regard to improper expansion and conversion of buildings. Specifically, Appellants urge the following as damages for these alleged violations:

Failure to enjoin [Appellees’] expansion threatens the architectural, historical, cultural and aesthetic integrity, and values of the Vieux Carre. De facto approval of [Appellees’] illegal expansion adversely affects the tout ensemble of the Vieux Carre and opens the entire Vieux Carre to significant alteration to the character and massing of its existing historic buildings. If not abated, the deterioration of the quaint and distinc-five character of the Vieux Carre will be permanently and adversely affected.
The expansion of [Appellees’ property], via the conversion of the adjacent apartment building to additional rooms and adding Bar 625 and Diner 625 as [ ] amenities, disrupts the scale and low density of the surrounding buildings and the residential character and environment. Furthermore, [Appellees’] illegal expansion has significantly harmed the historic community and will create additional traffic resulting in congestion, noise, and other activities destructive to the French Quarter.

We find that Appellants failed to meet ■ the first prong of the Hunt test because a concrete injury to the members of the Association has not been | r,established in this particular case; rather, Appellants have alleged injury to the Vieux Carre/ French Quarter neighborhood as a whole. The damages alleged allude to the general deterioration of the “quaint and distinctive character” of the Vieux Carré rather than asserting an actual injury to its members. Whether the character or charm of a neighborhood has deteriorated is purely subjective; as such, it is not susceptible of measurement. Moreover, other alleged damages, such as the possibility of the creation of additional traffic, congestion, and noise as a result of Appellees’ alleged zoning violations, are hypothetical in this case, and Appellants have failed to show that such other alleged damages are “present or probable for the future.” See Louisiana Hotel-Motel, 385 So.2d at 1197. Accordingly, Appellants have not shown that there exists, either on their part or the part of their members, any real or actual interest in enjoining alleged violations. Id. Appellants’ allegations are therefore insufficient to establish standing, as Hunt and Louisiana law both mandate a showing of harm, present or probable for the future, to the members themselves. Hunt, 432 U.S. 383, 97 S.Ct. at 2441; Louisiana Hotel-Motel, 385 So.2d at 1197.

The Louisiana Supreme Court recognized that in Hunt, “the association which brought the action ... had shown dear, direct economic injury to the members thereof.” Louisiana Associated General Contractors, Inc. v. State of Louisiana, 95-2105 (La.3/8/96), 669 So.2d 1185, 1191, n. 4 (emphasis added). The Louisiana Supreme Court also applied Hunt’s three-part test in Ramsey River Road Property Owners Association v. Reeves, noting that “[i]t is axiomatic” that the plaintiff property owners’ association “have a ‘real and actual interest’ in the action he asserts before the courts will entertain his suit.” Ramsey River Road Property Owners Association v. Reeves, 396 So.2d 873, 874 (La.1981).

|7In contrast, as was the case in Louisiana Hotel-Motel, Appellants “have not shown that the members of their organizations could bring a suit; they have not shown any harm (present or probable for the future) which would occur to the members.” Louisiana Hotel-Motel, 385 So.2d at 1197. Considering the incorporeal injuries alleged in this case, we find that Appellants have failed to establish any clear, direct economic injury which would occur to the members themselves. See Louisiana Associated General Contractors, 669 So.2d at 1191. Therefore, we find that Appellants “have shown neither standing to prosecute nor an injury which might have been redressed.” Louisiana Hotel-Motel, 385 So.2d 1193, 1197.

|sIt is unnecessary to address the second or third prong of the Hunt test, as a finding that one of the prongs of the test is not met is dispositive. We note, however, that with respect to the third prong, Appellants argue that because the suit is non-pecuniary in nature, it is unnecessary for any one member to participate in the lawsuit. While Appellants are correct in that the suit seeks injunctive and declaratory relief, Appellants have nevertheless failed to demonstrate any harm, present or probable, which would occur to the members. See Louisiana Hotel-Motel Association, 385 So.2d at 1197.

For the foregoing reasons, the trial court’s judgement is hereby affirmed.

AFFIRMED.

JLjBAGNERIS, J., dissents with reasons.

BAGNERIS, Judge,

dissents with reasons.

I respectfully dissent from the majority’s finding that the organizations in this case have failed to demonstrate a real and actual interest in the suit.

The essential function of the peremptory exception of no right of action is to test whether the plaintiff has a real and actual interest in the suit. La. C.C.P. art. 927(A)(6); La.Code of Civ. Proc. Art. 681. Its purpose is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. It assumes that the petition states a valid cause of action and questions whether the plaintiff in the particular case has a legal interest in the subject matter of the litigation. Wirthman-Tag Construction Co., L.L.C. v. Hotard, 00-2298, 00-2299, pp. 2-3 (La.App. 4 Cir. 12/19/01), 804 So.2d 856, 859.

Applying the criteria in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977), I find that Plaintiffs do have standing to bring this suit against defendants because (1) they have shown that the members of their organizations could bring a suit because of the harm (present or probable for the future) which would occur to the members; (2) they have shown the purpose for which their organizations were formed and why the claims being asserted relate to the purpose of the organization; and (3) |2they have shown that the relief being sought does not require the participation of the individual members. Accordingly, I would reverse the judgment of the trial court.

ORDER

11 Considering the application for rehearing filed by Appellants in the above-captioned matter, the request for a rehearing is hereby GRANTED. The request for an en banc rehearing is DENIED.

JONES, J., dissents.

JONES, J.,

dissenting.

1,1 respectfully dissent and would deny the application for rehearing.

ON REHEARING GRANTED

ROLAND L. BELSOME, Judge.

1, Appellants, Vieux Carre Property Owners, Residents, and Associates, Inc. and French Quarter Citizens for the Preservation of Residential Quality, Inc., appealed the trial court’s grant of Appellees’ Exception of No Right of Action. After hearing arguments, this Court affirmed the trial court’s judgment. Vieux Caire Property Owners, Residents and Associates, Inc. v. Hotel Royal, L.L.C., 2009-0641 (La.App. 4 Cir. 2/3/10), 2010 WL 395912, 55 So.3d 1. Rehearing in the matter was granted and arguments heard on October 20, 2010.

FACTS AND PROCEDURAL HISTORY

Appellants filed a petition for declaratory judgment and for preliminary and permanent injunction against Appellees, Hotel Royal, L.L.C., 1004-1006 Royal, L.L.C., 625 St. Philip, L.L.C., and The Melrose Group, L.L.C., alleging that Appellees had violated various local zoning ordinances. In response, Appellants filed Exceptions of Lack of Procedural Capacity, No Right of Action, and Prescription, asserting that Appellants’ claims were prescribed and that Appellants | Jacked standing and a right of action. After a hearing, the trial court sustained Appellees’ Exception of No Right of Action, and this Court affirmed. We granted rehearing in the matter to expand upon our reasoning in this Court’s previous decision.

STANDARD OF REVIEW

Judgments sustaining an exception of no right of action are reviewed de novo. Fortier v. Hughes, 2009-0180, p. 2 (La.App. 4 Cir. 6/17/09), 15 So.3d 1185, 1186.

DISCUSSION

Whether Appellants have standing to bring suit on behalf of its members involves a three-part inquiry. See Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); Louisiana Hotel-Motel Association v. Parish of East Baton Rouge, 385 So.2d 1193, 1196 (La.1980). The three-part test set forth by the United States Supreme Court, and adopted by the Louisiana Supreme Court, involves first determining whether the members of the organization would otherwise be able to bring suit in their own right; second, whether the interests the association wished to protect were pertinent to its purpose; and third, the organization must also establish that neither the claim asserted by the association nor the relief sought required the participation of individual members. Id.

| .-¡Appellants’ petition for damages alleged that failure to enjoin the expansion of Appellees’ property “threatens the architectural, historical, cultural and aesthetic integrity, and values of the Vieux Carre” and “adversely affects the tout ensemble of the Vieux Carre and opens the entire Vieux Carre to significant alteration of the character and massing of its existing historic buildings” which would “adversely affect[ ]” the “quaint and distinctive character of the Vieux Carre.” The petition also asserted that Appellees’ expansion would also “disrupt[ ] the scale and low density of the surrounding buildings and the residential character and environment” and “will create additional traffic resulting in congestion, noise, and other activities destructive to the French Quarter.”

In affirming the decision of the trial court, this Court determined that Appellants did not satisfy the first prong of the three-part test because Appellants failed to establish harm that was “present or probable for the future” for its members and also failed to demonstrate “clear, direct economic injury to [its] members.” Louisiana Associated General Contractors, Inc. v. State of Louisiana, 95-2105 (La.3/8/96), 669 So.2d 1185, 1191, n. 4; see also Louisiana Hotel-Motel, 385 So.2d at 1197. As the Hunt test is phrased in conjunctive terms, the failure to satisfy any part of the inquiry is dispositive, and further examination is unnecessary.

It is well-settled in Louisiana that a plaintiff must have a real and actual interest in the action he asserts. La. C.C.P. art. 681. Without a showing of a special interest that is separate and distinct from the interest of the general public, a plaintiff may not proceed. League of Women Voters of New Orleans v. City of New Orleans, 381 So.2d 441, 447 (La.1980); Richardson v. Reeves, 600 So.2d 138, 140 (La.App. 2 Cir.1992).

Applying the first prong of the Hunt/Louisiana Hotel-Motel test, we find that the first threshold requirement, the demonstration of harm that is present or probable for the future, was simply not established in this case. See Hunt, supra. Appellants merely asserted that Appellees’ alleged zoning violations would result in a decline in the charm and distinctive character of the neighborhood as a whole, the Vieux Carré. Not only is such an allegation entirely subjective, it is also not susceptible of measurement. Furthermore, the hypothetical possibility of increased congestion and noise as a result of the alleged zoning violations also does not rise to the level of “present or probable future harm.” See Hunt, supra.

In Guillot v. Brooks, 26,544, p. 1 (La. App. 2 Cir. 3/1/95), 651 So.2d 345, 346-347, a case relied upon by Appellants, a group of neighbors sought injunctive relief and the enforcement of a zoning ordinance. As this Court previously noted, Guillot involved individual private landowners. See Vieux Carre, supra, at n. 5. The Guillot plaintiffs alleged violations of local zoning ordinances and damages as a result of a neighbor’s use of his property as a landing strip for light aircraft. Guillot, p. 1, 651 So.2d at 347. In upholding the trial court’s determination that the plaintiffs had standing to sue to enforce zoning violations, the Court acknowledged the evidence that was submitted with respect to specific and concrete damages sustained by the individual landowners as a direct result of the low-flying aircraft:

1 aOne of the complainants, Rebecca Sanford, testified her horse had been spooked and nearly kicked her when an ultralight [aircraft] flew over her barn. Another plaintiff, Teresa Chewning, recounted how a low flying machine “buzzed” her house and scared her children. Neither plane belonged to defendants, but both witnesses generally concluded that the craft had been attracted by the airfield. Chewning additionally noted an occasion when Brooks taxied up and down the fence line between their properties, causing the horses in her nearby pasture to stampede.

Id. at pp. 5-6, 651 So.2d at 349. Additionally, the trial court was presented with detailed evidence from real estate experts regarding the issue of whether the plaintiffs’ property had diminished in value as a result of the zoning ordinance violations:

Both sides presented real estate experts to address whether plaintiffs’ neighboring property had diminished in value. Wesley Barron, a state certified appraiser, opined that a diminution in the price of appellees’ land would be caused by appellants’ ultralight activities. Ron Fa-yard, a real estate broker in the Bossier area but not a certified appraiser, testified on behalf of defendants. He noted that property in a new subdivision across the bayou from the ultralight landing area had significantly increased in value over the last few years, and that he had not observed any adverse effect on area sales caused by the nearby ultralights. On cross, however, he admitted that the subdivision land is buffered by a line of trees along the waterway.

Id. at p. 6. Considering the evidence that plaintiffs had presented with regard to individualized, specific damages, as well as evidence of harm resulting from the landing strip’s operation, the Court held that the plaintiffs had established “significant adverse effects upon the value and enjoyment of their property.” Id. Notably, the Court also held that the airport’s activities “specially damaged [the] plaintiffs.” Id. at p. 7.

IfiSimilarly, in Redfearn v. Creppel, 436 So.2d 1210, 1211 (La.1983), affd in part, rev’d in part on other grounds, 455 So.2d 1356 (La.1984), also relied upon by Appellants, involved two plaintiff homeowners seeking injunctive relief from a hotel’s alleged violations of zoning ordinances. In Redfeam, in contrast to the instant case, the plaintiffs put on evidence of actual traffic congestion, including the blockage of individual driveways by parked vehicles, and increased litter in the area:

Carol Jean Gibson is the owner of the property located at 1615 Peniston Street, which is within 100 feet of The Columns Hotel. She testified that as a result of the operation of the bar and restaurant at The Columns there has been more congested parking in the area, incidents in which her driveway is blocked by parked vehicles, an increase of trash which appears on her lawn between 10 p.m. and 7:30 a.m., and she sees “drunks” coming from the direction of The Columns.
Lynn Redfearn, a resident of 3717 Carondelet Street, which is one block from The Columns, attested to the dangerous and congested traffic and parking conditions which have occurred since the opening of the bar at the Columns Hotel.
The incidents of increased traffic and litter resulting from the operation of The Columns bar and restaurant was corroborated by the testimony of John Geiser, an officer of the St. Charles Avenue Committee.
We are satisfied that the plaintiffs have made a sufficient showing of harm to entitle them to seek injunctive relief in this case.

Id. at 1213.

Appellants argue that Vieux Carre Property Owners, Residents and Associates, Inc. v. Decatur Hotel Corporation, which involved an appeal by an association seeking declaratory and injunctive relief for an alleged violation of New Orleans zoning laws, is analogous to the instant case. 1999-0731, p. 1, 746 So.2d 806, 807 (La.App. 4 Cir. 11/10/99). Defendants filed an exception of no |7cause of action and/or no right of action, arguing that “the Association d[id] not list any damages in its petition and, hence, the Association has no cause of action.” Decatur Hotel, p. 2, 746 So.2d at 807. The trial court granted the exceptions and dismissed the petition with prejudice. Id. On appeal, the Court “agree[d] with the trial court that the Association failed to state a cause of action,” but remanded to allow the Association the opportunity to amend its petition to assert a cause of action. Id. at p. 5-6, 808-809.

As previously noted, the three-pronged Hunt test was not applied in Decatur Hotel. The Court referenced Ramsey, Louisiana Hotel-Motel, and Associated General Contractors, acknowledging that Louisiana Courts have previously held that an organization may assert a claim on behalf of its members. Decatur Hotel, 746 So.2d 806, 808-809. Next, the Court cited Redfearn v. Creppel and Guillot v. Brooks for the principle that neighboring residents and individual landowners, respectively, may file suit to enforce zoning ordinances. Id. at 809. The Court had already determined that the Association’s petition failed to state any damages sufficient to assert a cause of action; thus, the Court could not conduct a Hunt analysis because no damages had been asserted in the petition. Accordingly, the statement in Decatur Hotel that the Association could assert a claim on behalf of its members is best understood as an affirmation of the Louisiana jurisprudence holding that an association may file suit on behalf of its members, provided that all three elements of the Hunt test are satisfied.

|sWith respect to Garden District Property Owners Association v. City of New Orleans, et al., 98 So.2d 922 (La.App. 4th Cir.1957), it is important to note that it was decided two decades prior to Hunt decision; thus, the Court did not conduct the three-part test when determining whether an association had standing. Likewise, Vieux Carre Property Owners and Associates, Inc. v. City of New Orleans, 246 La. 788, 167 So.2d 367 (La.1964) also pre-dates Hunt and Louisiana Hotel-Motel. While Garden District and VCPO-RA are indeed still good law, neither can offer guidance with respect to a Hunt analysis. Pursuant to Supreme Court and Louisiana jurisprudence, the Hunt/Louisiana Hotel-Motel test must be applied when determining whether an association has standing to assert a claim on behalf of its members, and all three elements of the test must be satisfied. See Hunt, supra; Louisiana Hotel-Motel, supra.

With respect to Ramsey River Road Property Owners Association, Inc. v. Reeves, 396 So.2d 873, 874 (La.1980), this Court finds that the instant matter is factually distinguishable. In Ramsey, the complained-of activity was construction of a bridge on the Bogue Falaya River, which the plaintiff association argued was navigable; thus, defendants could not construct the bridge without first complying with certain state and federal procedures. Ramsey, 396 So.2d at 875.

The facts of Hunt are also plainly distinguishable from the instant case. In Hunt, the issue was a North Carolina law which impacted apple growers from Washington State, the Nation’s largest producer of apples. Hunt, 432 U.S. at 336, 97 S.Ct. at 2438. The apple industry in Washington employed “a stringent, mandatory inspection program” by Washington’s Department of Agriculture | Requiring apples shipped to other states “be tested under strict quality standards and graded accordingly.” Id. The Washington apple grades were equal or superior to the USDA standards, and the scheme cost the Washington apple growers approximately one million dollars per year. Id.

North Carolina adopted an administrative regulation that “required all closed containers of apples shipped into or sold in the State to display either the applicable USDA grade or none at all,” thus expressly prohibiting individual State grades, such as the Washington apple grades. Id. at 387. The impact of such a regulation upon the Washington apple growers was enormous. “Washington apple growers annually ship in commerce approximately 40 million closed containers of apples, nearly 500,000 of which eventually find their way into North Carolina stamped with the applicable Washington State variety and grade.” Id. at 337-338. The growers purchase containers that are pre-labeled with the various apple grades and varieties, fill the containers after harvest and place them in cold-storage warehouses. Id. at 338. The apples are shipped from the warehouse to meet demand throughout the year, and “after February 1 of each year, they constitute approximately two-thirds of all apples sold in fresh markets in this country.” Id. at 2439. Thus, the resulting economic harm to the Washington apple growers forced to conform to the regulation was obvious to the Court:

Since the ultimate destination of these apples is unknown at the time they are placed in storage, compliance with North Carolina’s unique regulation would have required Washington growers to obliterate the printed labels on containers shipped to North Carolina, thus giving their product a damaged appearance. Alternatively, they could have changed their marketing practices to accommodate the needs of the North Carolina market, i.e., repack apples to be shipped to North Carolina in containers bearing only the USDA grade, and/or store the estimated portion of the harvest destined for that market in such special containers. As a last resort, they could discontinue the use of the preprinted containers entirely. None of these costly and less |inefficient options was very attractive to the industry. Moreover, in the event a number of other States followed North Carolina’s lead, the resultant inability to display the Washington grades could force the Washington growers to abandon the State’s expensive inspection and grading system which them customers had come to know and rely on over the 60-odd years of its existence.

Id. at 338. Consequently, as a direct result of the regulation, the Washington apple growers were plainly “forced to alter their long-established procedures, at substantial cost, or abandon the North Carolina market [at a loss of 500,000 containers of apples].” Hunt, 432 U.S. at 340, 97 S.Ct. at 2440 (emphasis added).

In this case, however, the harm resulting from the complained-of activity is alleged on behalf of the Vieux Carre neighborhood as a whole, and this Court cannot provide Appellants with relief. See League of Women Voters of New Orleans, 381 So.2d at 447; Richardson v. Reeves, 600 So.2d at 140. Furthermore, |nthe harm alleged by Appellants is generally incorporeal, subjective, and hypothetical, in marked contrast to the damages alleged by the plaintiff associations in the cases cited previously herein.

Additionally, the alleged harms are not sufficiently concrete to pass muster under Louisiana Hotel-Motel. The Louisiana Supreme Court has recognized that to establish standing to assert a claim on behalf of its members, an association must demonstrate actual economic injury. Louisiana Hotel-Motel, 385 So.2d at 1197. In finding that a group of plaintiff restaurant associations had established “neither standing to prosecute nor an injury which might have been redressed,” the Court noted that Auto Dealers, a case upon which plaintiffs had mistakenly relied, “not only included individual dealers among the plaintiffs, but also demonstrated actual, substantial economic injury to the dealers.” Id. (emphasis added). Accordingly, the Louisiana Supreme Court held that associations’ position was not analogous to that of the Auto Dealers plaintiffs, and standing eoüld not be established. Id. Similarly, we find that Appellants in the instant case have , failed to demonstrate a concrete economic injury to its members sufficient to satisfy the test for standing. See id.

The second prong of the inquiry, whether the interests Appellants sought to protect were relevant to its organization’s purpose, was arguably met; the VCPORA’s mission statement makes reference to “maintaining] [the French Quarter’s] quant and distinctive character.” As previously noted, however, satisfaction of only one of the elements of the three-part inquiry is insufficient to establish standing. Vieux Carre Property Owners, supra, at *8.

112Finally, although unnecessary to do so, we consider whether the claim asserted or the relief sought by the association requires the participation of the individual members. See Hunt, supra. We acknowledge that the injunctive relief sought by Appellants in this case may not necessarily require the participation of the individual members. See Louisiana Associated Gen. Contractors, Inc. v. State Through Div. of Admin., Office of State Purchasing, 95-2105, p. 7 (La.3/8/96), 669 So.2d 1185, 1191 (noting that “because the suit merely seeks injunctive and declaratory relief, as opposed to monetary damages on behalf of individual contractors, neither the claim asserted nor the relief requested require the participation of individual members in the lawsuit”). Nevertheless, even if Appellants satisfy this element, Appellants fail to establish standing because the first prong of the test has not been met.

For the foregoing reasons, the trial court’s judgment is affirmed.

AFFIRMED

BAGNERIS, J., Dissents with Reasons.

BAGNERIS, J., Dissents with Reasons.

hi respectfully dissent from the majority’s finding that the organizations in this case have failed to demonstrate a real and actual interest in the suit.

The essential function of the peremptory exception of no right of action is to test whether the plaintiff has a real and actual interest in the suit. La. C.C.P. art. 927(A)(6); La.Code of Civ. Proc. Art. 681. Its purpose is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. It assumes that the petition states a valid cause of action and questions whether the plaintiff in the particular case has a legal interest in the subject matter of the litigation. Wirthman-Tag Construction Co., L.L.C. v. Hotard, 00-2298, 00-2299, pp. 2-3 (La.App. 4 Cir. 12/19/01), 804 So.2d 856, 859.

Applying the criteria in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977), I find that Plaintiffs do have standing to bring this suit against defendants because (1) they have shown that the members of their organizations could bring a suit because of the harm (present or probable for the future) which would occur to the members; (2) they have shown the purpose for which their organizations were formed and why the claims being asserted relate to the purpose of the organization; and (3) |2they have shown that the relief being sought does not require the participation of the individual members. Accordingly, I would reverse the judgment of the trial court.

      . At the hearing, the trial court questioned counsel for Appellants whether the alleged violations should have instead been brought before Vieux Carre Commission:
      Mr. Smith:
      Well, there was [sic] proceedings in the Vieux Carre Commission and those proceedings- — -those administrative proceedings are what they are. We have a right to enjoin—
      The Court:
      In other words, it didn’t go the way you wanted it to go.
      Mr. Smith:
      No, no, that’s not — I wasn’t really involved in that aspect of the case.
      Mr. Rosenberg:
      I was, your Honor, and that’s correct.

      . Appellants do not list assignments of error for review.

      . The Louisiana Supreme Court has also acknowledged that "[w]hether incorporated or unincorporated, the right that any association has to assert a cause of action before a court in this state is limited to the assertion of a right which belongs to that association.” Louisiana Hotel-Motel, 385 So.2d at 1196; see also La. C.C.P. art. 861 (“Except as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts.”).

      . The Louisiana Supreme Court has also recognized the "concrete, and not merely hypothetical, 'injury in fact’ or invasion of its legally protected interests” requirement for an association to establish standing. Louisiana Associated General Contractors, Inc. v. State of Louisiana, 95-2105 (La.3/8/96), 669 So.2d 1185, 1192 (citing Northeastern Florida Chapter of Associated General Contractors of America v. City of Jacksonville, Florida, 508 U.S. 656, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1983)).

      . The cases relied upon by Appellants are easily distinguished from the fact pattern of the instant case. In Redfearn v. Creppel, when addressing the issue of standing, this Court cited to testimony from two plaintiff homeowners, who both attested to specific harms resulting from the hotel’s operations, which included blocked driveways, parking congestion, and an increase in litter and dangerous traffic. Redfearn v. Creppel, 436 So.2d 1210, 1213, aff'd in part, rev’d in part on other grounds, 455 So.2d 1356 (La.1984). Thus, the necessary showing of harm, present or probable for the future, was met. See id. Even in that case, this Court recognized that an individual's right to seek injunctive relief must be established by “a showing that he would be materially and adversely affected in the enjoyment of his home as a result of his neighbor’s violation of the zoning ordinances.” Id. (emphasis added).
      Likewise, Guillot v. Brooks also involved individual private landowners. The landowners sought to enjoin a neighboring landowner from using his property as a landing strip. Guillot v. Brooks, 26,544 (La.App. 2 Cir. 3/1/95), 651 So.2d 345, The Second Circuit found that plaintiffs demonstrated that they were specially damaged because the zoning violations had diminished the plaintiffs’ property values. Guillot, 651 So.2d at 349.
      Additionally, Vieux Carre Property Owners, Residents and Associates, Inc. v. Decatur Hotel Corporation is inapplicable to the facts of the instant case. In Decatur Hotel, when addressing Defendants’ argument that an association did not have a right to enforce an action for a zoning violation, this Court stated that the issue of whether an organization has standing to assert a claim on behalf of its members had been answered in the affirmative by the Louisiana Supreme Court. Decatur Hotel, 99-0731, p. 5 (La.App. 4 Cir. 11/10/09), 746 So.2d 806, 809 (citing Ramsey, supra). This Court also acknowledged the well-settled law that private landowners may enjoin neighboring landowners from violating city ordinances. Id. (citing Redfearn v. Creppel, 436 So.2d at 1213). Notably, this Court ultimately found that the Association nevertheless failed to state a cause of action in their petition, affirming Defendants’ exception of no cause of action; thus, this Court did not apply the Supreme Court’s three-part Hunt test to determine whether the Association met the three requirements for standing. See id.

      . The second prong of the Hunt test, whether the interests Appellants seek to protect are relevant to the organizations' purpose, has arguably been established, as the VCPORA's mission statement references "preserving] the Vieux Carre as a national treasure, to maintain its quaint and distinctive character, and to achieve in that historic, living neighborhood, a quality of life which can be enjoyed by its residents, fellow citizens, businesses, and visitors.’’ Similarly, the FQCPRQ’s mission is “to preserve the residential quality in the French Quarter, as well as the historical character and architecture in the Vieux Carre.” However, the Hunt test is plainly articulated in conjunctive terms; thus, satisfaction of only one of the elements is insufficient to establish standing.

      . As previously noted, a review of the record evidenced that Appellants brought the same claims before the Vieux Carre Commission, but that attempt to enjoin Appellees before the VCC was unsuccessful. Vieux Caire Property Owners, Residents and Associates, Inc. v. Hotel Royal, L.L.C., 2009-0641 (La.App. 4 Cir. 2/3/10), 2010 WL 395912, 55 So.3d 1, n. 1.

      . Additionally, with regard to the analysis of the amount-in-controversy claim, the Supreme Court recognized the economic losses that the members of the apple industry had already sustained and were certain to incur in the future:
      Here the record demonstrates that the growers and dealers have suffered and will continue to suffer losses of various types. For example, there is evidence supporting the District Court's finding that individual growers and shippers lost accounts in North Carolina as a direct result of the statute. Obviously, those lost sales could lead to diminished profits. There is also evidence to support the finding that individual growers and dealers incurred substantial costs in complying with the statute. As previously noted, the statute caused some growers and dealers to manually obliterate the Washington grades from closed containers to be shipped to North Carolina at a cost of from 5 to 15 cents per carton. Other dealers decided to alter their marketing practices, not without cost, by repacking apples or abandoning the use of preprinted containers entirely, among other things. Such costs of compliance are properly considered in computing the amount in controversy. Buck v. Gallagher, supra; Packard v. Banton, supra; Allway Taxi, Inc. v. City of New York, 340 F.Supp. 1120 (S.D.N.Y.), aff’d, 468 F.2d 624 (C.A.2 1972). In addition, the statute deprived the growers and dealers of their rights to utilize most effectively the Washington State grades which, the record demonstrates, were of long standing and had gained wide acceptance in the trade. The competitive advantages thus lost could not be regained without incurring additional costs in the form of advertising, etc. Cf. Spock v. David, 502 F.2d 953, 956 (C.A.3 1974), rev’d on other grounds, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976). Moreover, since many apples eventually shipped to North Carolina will have already gone through the expensive inspection and grading procedure, the challenged statute will have the additional effect of causing growers and dealers to incur inspection costs unnecessarily.
      Both the substantial volume of sales in North Carolina the record demonstrates that in 1974 alone, such sales were in excess of $2 million and the continuing nature of the statute’s interference with the business affairs of the Commission’s constituents, preclude our saying "to a legal certainty,” on this record, that such losses and expenses will not, over time, if they have not done so already, amount to the requisite $10,000 for at least some of the individual growers and dealers. Hunt, 432 U.S. 333, 347-48, 97 S.Ct. 2434, 2443-44, 53 L.Ed.2d 383 (emphasis added)(footnote omitted).

      . Louisiana Independent Auto Dealers Association v. State, 295 So.2d 796 (La.1974).


source: Caselaw Access Project

author: BROWN, Chief Judge. PEATROSS, J., BROWN, Chief Judge,

license: Public Domain

text:
    Larry WAGONER, et al., Plaintiffs-Appellants v. CHEVRON USA INC., et al., Defendants-Appellees.
    No. 45,507-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2010.
    Opinion Granting Rehearing Nov. 24, 2010.

      Talbot, Carmouche & Marcello, Gonzales, LA, by William R. Coenen, III, Victor L. Marcello, John S. DuPont, III, Donald T. Carmouche, John H. Carmouche, Brian T. Carmouche, for Appellants.
    Sturgeon & Boyd by John Sturgeon, Jr., Gore & Loy, Ferriday, LA, by Brent S. Gore, Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman, L.L.P., New Orleans, LA, by Michael R. Phillips, Louis Gross-man, Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman, L.L.P., Baton Rouge, LA, by G. William Jarman, Richard D. McConnell, Jr., Frilot Partridge, New Orleans, LA, by Patrick A. Talley, Jr., for Appellee, Chevron USA, Inc.
    Cook, Yancey, King & Galloway, Shreveport, LA, by Albert M. Hand, Jr., Jason A. Green, Bradley Murchison, Shreveport, LA, by F. John Reeks, Jr., for Appellees, Devon Energy Production, Merit Energy, Merit Management Partners, Merit Energy Partners III, and Merit Energy Partners D-III.
    Adams, Hoefer, Holwadel & Eldridge, New Orleans, LA, by D. Russell Holwadel, Gregory 0. Currier, Claudia P. Santoyo, Ira J. Rosenzweig, Wall, Bullington, & Cook, L.L.C., New Orleans, LA, by Jonathan R. Cook, Jones, Odom, Davis & Politz, L.L.P., Shreveport, LA, by J. Marshall Jones, Jr., for Appellees, Denbury Onshore, Smith Operating & Management, LSJ Exploration, Diamond South Operating, and Oil & Ale LSJ.
    Jeansonne & Remondet, Lafayette, LA, by John A. Jeansonne, Jr., Donovan J. O’Pry, II, Jeansonne & Remondet, by John A. Jeansonne, III, for Appellees, McGowen Working Partners, Sunset Oil & Gas, and Spokane Oil & Gas.
    Before BROWN, WILLIAMS, and PEATROSS, JJ.
   BROWN, Chief Judge.

IjThe Wagoner family bought a 193-acre tract in the Lake St. John Oil Field in Concordia Parish in September 2004. After the purchase, they discovered that the property had been contaminated and damaged by oil and gas operations. The trial court denied the Wagoners the right to sue the past operators who were responsible for the contamination and damage. The trial court held that this tort/contract action was a personal right and that the owner of real property who sells it after damage has occurred, but without assigning the right to the damages, is the proper person to sue for the damages. The Wagoners have appealed this ruling and other rulings on other exceptions granted by the trial court. We reverse in part and remand.

Facts and Procedure

This action involves a claim for damages to a 193-acre tract of land located in the Lake St. John Oil and Gas Field in Con-cordia Parish, Louisiana. Plaintiffs filed suit claiming that their property was contaminated by the oil and gas exploration and production activities of defendants.

Operations on the property were begun in 1945 by Chevron pursuant to three mineral leases obtained from the Pasternack family. In June 1999, the Pasternack family sold the property, reserving their mineral interests, in a cash sale to James and Jane Funderburg and David and Dale Steckler. 12One month later, the Stecklers sold their interest in the property to the Funderburgs. In 2004, plaintiffs purchased the property from the Funder-burgs. None of the transfers of surface interests in plaintiffs’ chain of title included a specific assignment of the right to sue for property damages. After their purchase, plaintiffs discovered that the subsurface of their property was contaminated with exploration and production waste, in particular, through the use of unlined pits.

From 1945 to 1992, Chevron leased and conducted oil and gas operations on the property now owned by plaintiffs. From 1992 through 2002, Pennzoil (now Devon) conducted operations on the property pursuant to a lease assignment from Chevron. From 2002 to 2004, Merit conducted operations on the property pursuant to a lease assignment from Pennzoil. LSJ and Oil & Ale obtained a lease assignment from Merit in 2002 and contracted with Smith to operate on the property from January through August 2004. Beginning in 2004, McGowan (formerly a defendant, dismissed without prejudice) leased and operated the shallow oil producing horizons beneath the property. The deeper horizons were leased and operated by Denbury after 2004. The original mineral leases obtained in 1939 and 1940 by Chevron remain active today.

Numerous exceptions were filed by the various defendants, and following a hearing on the exceptions, the trial court dismissed all of plaintiffs’ claims against Chevron (the original mineral lessee), and Merit and Devon (two of Chevron’s assignees). The other defendants, Denbury, LSJ, Oil & Ale, Smith and McGowan, conducted operations on the property Rafter plaintiffs’ purchase, and not all of plaintiffs’ claims were dismissed. The trial court sustained the following exceptions filed or adopted by reference by all defendants: (a) No Right of Action (as to Chevron, Merit and Devon); (b) Vagueness; (c) No Cause of Action for Strict Liability for Nuisance; (d) No Cause of Action for Strict Liability for Garde or Custody; (e) No Cause of Action for Abnormally Dangerous or Ultrahazardous Activity; (f) No Cause of Action for Breach of Contract or Warranty; (g) No Cause of Action for Punitive Damages; (h) No Cause of Action for Civil Fruits; and (i) No Cause of Action for Unjust Enrichment.

It is from this judgment that plaintiffs have appealed.

Discussion

The function of a no right of action exception is to determine whether plaintiffs belong to the class of persons to whom the law grants the cause of action asserted. Badeaux v. Southwest Computer Bureau, Inc., 05-0612 (La.03/17/06), 929 So.2d 1211; Skannal v. Bamburg, 44,820 (La.App.2d Cir.01/27/10), 33 So.3d 227, writ denied, 10-0707 (La.05/28/10), 36 So.3d 254; Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., 09-0298 (La.App. 4th Cir.02/10/10), 47 So.3d 428, reh’g granted, (04/21/10). Only a person having a real and actual interest to assert may bring an action. La. C.C.P. art. 681; Skannal, supra.

The function of the peremptory exception of no cause' of action is to question whether the law extends a remedy against the defendants to anyone under the factual allegations of the petition. Industrial Companies, Inc. v. Durbin, 02-665 (La.01/28/03), 837 So.2d 1207; Cleco Corp. v. Johnson, 01-0175 (La.09/18/01), 795 So.2d 302.

Both the peremptory exceptions of no right and no cause of action present questions of law requiring a de novo review by appellate courts. La. C.C.P. art. 927; Skannal, supra; Taylor v. Dowling Gosslee & Associates, Inc., 44,654 (La.App.2d Cir.10/07/09), 22 So.3d 246, writ denied, 09-2420 (La.02/05/10), 27 So.3d 299.

No Right of Action As to Chevron, Merit & Devon

The majority of plaintiffs’ assignments of error are related to the trial court’s no right of action ruling as to Chevron, Merit & Devon. Defendants have likewise devoted the majority of their arguments on appeal to this ruling.

The oil leases covering the property date back to the 1940’s and remain in effect today due to production. All mineral rights were retained by the family of the original lessor (Pasternack) in the deed of sale to the Funderburgs. The 2004 deed of sale to plaintiffs from the Funderburgs does not include a specific assignment of the right to sue for property damages that may have occurred prior to their acquisition of the property.

Chevron’s position, and that of the trial court, is that the owner of the land at the time of the alleged damages to the property is the person with the real and actual interest to assert a claim for damages to the land. They argue that the right to assert a claim for property damages is a personal right and is not transferred to new owners merely by the transfer of title to the land. La. C.C. art. 1764. In support they rely on the Third Circuit case of Lejeune Bros., Inc. v. Goodrich Petroleum Co., L.L.C., 06-1557 (La.App. 3d Cir.11/28/07), 981 So.2d 23, writ denied, 08-0298 (La.04/04/08), 978 So.2d 327.

The Third Circuit in Lejeune Bros., Inc., supra at 32, held that a claim for damages, whether it arises under a predial lease or a mineral lease, is a personal right which must be specifically assigned to run with the property. Therefore,. plaintiffs, who did not acquire by specific assignment any rights to pre-acquisition property damages, have no claim for property damages that may have occurred prior to their purchase of the land in question.

However, the First Circuit differed with the Third Circuit in Marin v. Exxon Mobile Corporation, 08-1724, 2009 WL 7004332 (La.App. 1st Cir. 09/30/09) (not designated for publication), writs granted, 09-2368 and 2371, (La.02/26/10), 28 So.2d 262. In Marin, Exxon challenged the trial court’s denial of its peremptory exception of no right of action. Exxon claimed that plaintiffs had no right, whether based in tort or contract, to sue for pre-acquisition damages. The First Circuit affirmed the trial court stating:

With respect to the pre-acquisition contract claims, Exxon asserts that to have any right of action to enforce any express or implied obligation in a mineral lease, the Breauxs were required to prove that they were a party to the mineral lease or were specifically assigned the right by the lessor. Breaux admitted that he purchased only the surface rights and was not specifically assigned any interest in the mineral rights that are the subject of the lease. Exxon relies on the Third Circuit opinion in Lejeune Brothers, Inc., 981 So.2d at 32, for its proposition that tort and/or contract claims for damages to real property arising from oil and gas operations conducted under a mineral lease constitute a personal right that does not run with the property. As such, a party who purchased property from a mineral rights lessor cannot recover from the lessee for property damage that was inflicted prior to the property purchase.
]_¿The Breauxs contend that Exxon’s argument ignores the Supreme Court decision in Magnolia Coal Terminal v. Phillips Oil Co., 576 So.2d 475 (La.1991). In that case, plaintiff purchased contaminated property that was burdened with a mineral lease. The seller reserved all mineral rights in the act of sale. After the purchase, Magnolia sued the successor and assignee of the mineral lease seeking remediation of the contamination. Even though most of the damage resulted from a blowout on the property seventeen years before Magnolia purchased it, the Supreme Court held that Magnolia had a right to restoration. The Supreme Court specifically held “Magnolia’s right to recover damages is a property right arising out of the original lease and attached to the property.” Magnolia Coal Terminal, 576 So.2d at 483.
In the instant case, the Breauxs contend that the CBT lease was still in effect at the time they purchased the property. Alternatively, they argue Exxon came forward with no proof at the hearing that the lease was not still active. The Breauxs distinguish Lejeune Brothers on the basis that the mineral lease had expired in Lejeune Brothers prior to the plaintiffs purchase of the property. Indeed, the lease at issue in Lejeune Brothers had terminated over two years prior to Lejeune Brother’s acquisition of the property. Lejeune Brothers, 981 So.2d at 28. As such, the Third Circuit held it was impossible to transfer rights to an assignee under an expired mineral lease. Lejeune Brothers, 981 So.2d at 28. Moreover, we agree with the Breauxs’ assertion that Lejeune Brothers does not attempt to explain or distinguish Magnolia, which is controlling Louisiana Supreme Court precedent.

We agree that the Third Circuit in Le-jeune did not explain or distinguish Magnolia Coal Terminal, supra, and concur in the First Circuit’s conclusion that Magnolia Coal Terminal correctly recognized that the right to restoration of damaged property is a real right and as such, attaches to the property.

l7The Supreme Court in Magnolia Coal, supra, citing Andrepont v. Acadia Drilling Co., 255 La. 347, 231 So.2d 347 (La.1969), found that the plaintiff was a third party beneficiary with a right to recover pre-acquisition restoration damages under a damage provision of the mineral lease.

The Mineral Code places the lessee under an obligation to act as a prudent operator as to both surface and subsurface. An assignment does not relieve the lessee (Chevron) of its obligation “under the mineral lease.” La. R.S. 31:129. A mineral lease is a real right and burden on the immovable. The present landowner, who has no mineral interest, may not prohibit the lessee or its assigns access to the land. The surface owners are subject to the real obligation of the leasehold owners’ surface rights. The leasehold owners, including Chevron, Merit and Devon, have a continuing and correlative responsibility as to the surface owner. La. C.C. art. 1763 states that “[A] real obligation is a duty correlative and incidental to a real right.”

We thus reverse the trial court’s ruling in favor of Chevron, Merit and Devon granting their no right of action exception. Plaintiffs have no cause of action against defendants for civil fruits or storage.

Plaintiffs argue that they have a cause of action for civil fruits or storage because defendants, as trespassers and therefore bad faith possessors, have derived an economic benefit from their storage of hazardous waste on plaintiffs’ land without permission. According to plaintiffs, the economic benefit of this storage is equal to the cost that defendants would have incurred had their waste been properly disposed | sof/stored elsewhere. Plaintiffs urge that the economic benefit reaped by defendants qualifies as a civil fruit under La. C.C. art. 551.

La. C.C. art. 486 provides in part that a possessor in bad faith is bound to restore to the owner the fruits he has gathered, or their value, subject to his claim for reimbursement of expenses. La. C.C. art. 551 defines fruits as things that are produced by or derived from another thing without diminution of its substance. Article 551 further specifies that civil fruits are revenues derived from another thing, such as rentals, interest, and certain corporate distributions.

The “savings” or economic benefit realized by defendants in disposing of/storing their waste or byproducts on the property rather than disposing ofistoring them off-site does not qualify as a “fruit” much less as a “civil fruit.” Nothing was produced by or derived from the property as a result of the storage/disposal of oilfield waste, and there were no revenues, such as rentals, interest or a corporate distribution, derived from the property by virtue of the storage/disposal of oilfield waste. Furthermore, plaintiffs do not have a cause of action for compensation for the storage of defendants’ waste on their property. This exception of no cause of action in favor of all defendants was properly sustained by the trial court.

Plaintiffs have no cause of action against defendants for punitive/exemplary damages.

Plaintiffs assert that the trial court erred in sustaining defendants’ exception of no cause of action for punitive damages. As pointed out by defendants, the court minutes, as well as the trial court’s written reasons for judgment, clearly indicate that plaintiffs, in open court, explicitly waived 19their claims for punitive/exemplary damages. There is no merit to this assignment of error.

Conclusion

For the reasons set forth above, the trial court’s judgment is reversed as to the exception of no right of action filed by Chevron, Merit & Devon, and affirmed in all other respects and remanded. Costs are assessed to defendants, Chevron, Merit & Devon.

REVERSED IN PART, AFFIRMED IN PART, and REMANDED.

Opinion on Rehearing

Before BROWN, WILLIAMS, STEWART, PEATROSS & MOORE, JJ.

PEATROSS, J.,

on rehearing.

|, We granted rehearing in this case for the purpose of deciding whether Plaintiffs have a right of action against Defendants. In this contracf/tort action for damages, Plaintiffs, the Wagoners, filed suit against Defendants in 2008, claiming that their property had been contaminated and damaged by oil and gas operations which took place prior and subsequent to their purchase of the land in 2004. After a hearing on exceptions, the trial judge granted the exceptions of no right of action filed by Chevron U.S.A. Inc. (Chevron), Devon Energy Production Company, L.P. (Devon) and Merit Energy Company, L.L.C. (Merit), thereby dismissing them as parties to this suit. The trial judge denied the exceptions of no right of action filed or adopted by all other Defendants, leaving them remaining as parties to the suit. The trial judge also granted numerous other exceptions of no cause of action filed or adopted by all Defendants. It is from this judgment that the Wagoners appeal. For the reasons stated herein, we affirm.

FACTS

This action involves a claim for damages to a 193-acre tract of land located in the Lake St. John Oil and Gas Field in Con-cordia Parish, Louisiana. Operations on the property were commenced by Chevron in 1945 pursuant to three mineral leases obtained from the previous owners, Rthe Pasternack family. In June 1999, the Pasternack family sold the property, reserving their mineral interests, in a cash sale to James and Jane Funderburg and David and Dale Steckler. One month later, the Stecklers sold their interest in the property to the Funderburgs. In 2004, Plaintiffs purchased the property from the Funderburgs. None of the transfers of the surface interests in Plaintiffs’ chain of title included a specific assignment of the right to sue for property damages. After purchasing the land from the Funder-burgs, Plaintiffs discovered that the subsurface of their property was contaminated with exploration and production waste, particularly through the use of unlined pits. Plaintiffs filed suit in August 2008, claiming that their property was contaminated by the oil and gas exploration and production activities of Defendants.

From 1945 to 1992, Chevron leased and conducted oil and gas operations on the property now owned by Plaintiffs. From 1992 through 2002, Devon (previously named Pennzoil) conducted operations on the property pursuant to a lease assignment from Chevron. From 2002 to 2004, Merit conducted operations on the property pursuant to a lease assignment from Devon. LSJ Exploration and Oil & Ale LSJ obtained a lease assignment from Merit in 2002 and contracted with Smith Operating and Management Company to operate on the property from January through August 2004. Beginning in 2004, McGowan Working Partners (formerly a defendant, dismissed without prejudice) leased and operated the shallow oil-producing subsurfaces beneath the property. The deeper subsurfaces were leased and operated by Denbury Onshore after 2004.

13As previously stated, numerous exceptions were filed by various Defendants; and, following a hearing on the exceptions, the trial judge granted the exceptions of no right of action filed by Chevron (the original mineral lessee), Merit and Devon (two of Chevron’s assignees), thereby dismissing them from this suit. The trial judge overruled the exceptions of no right of action filed by all other Defendants who conducted operations on the property after Plaintiffs’ purchase of the land, thus leaving them remaining as parties to the suit.

Additionally, the trial judge sustained the following exceptions filed or adopted by all Defendants: (A) Vagueness; (B) No Cause of Action for Strict Liability for Nuisance; (C) No Cause of Action for Strict Liability for Garde or Custody; (D) No Cause of Action for Abnormally Dangerous or Ultrahazardous Activity; (E) No Cause of Action for Breach of Contract or Warranty; (F) No Cause of Action for Punitive Damages; (G) No Cause of Action for Unjust Enrichment; and (H) No Cause of Action for Civil Fruits.

This appeal ensued.

DISCUSSION

Plaintiffs’ first ten assignment of errors assert that the trial judge erred in granting the exceptions of no right of action filed by Chevron, Merit and Devon. Plaintiffs’ final two assignments of error involve their contend that the trial judge erred in sustaining various exceptions of no cause of action advanced by all or some Defendants.

Exceptions of no cause of action and no right of action are both peremptory exceptions, the function of which is “to have the plaintiffsj^action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action.” La. C.C.P. art. 923; Waggoner v. America First Ins., 42,863 (La.App.2d Cir.1/16/08), 975 So.2d 110. Both exceptions of no right and no cause of action present questions of law requiring a de novo review by appellate courts. La. C.C.P. art. 927; Skannal v. Bamburg, 44,820 (La.App.2d Cir.1/27/10), 33 So.3d 227, writ denied, 10-0707 (La.5/28/10), 36 So.3d 254; Taylor v. Dowling Gosslee & Associates, Inc., 44,654 (La.App.2d Cir.10/7/09), 22 So.3d 246, writ denied, 09-2420 (La.2/5/10), 27 So.3d 299.

Only a person having a real and actual interest to assert may bring an action. La. C.C.P. art. 681; Skannal v. Bamburg, supra. The peremptory exception of no right of action is used to show that a plaintiff has no legal right or interest in enforcing the matter asserted, based upon the facts and evidence submitted. La. C.C.P. art. 927; Richland Parish Police Jury v. Debnam, 42,421 (La.App.2d Cir.10/17/07), 968 So.2d 294, writ denied, 08-0016 (La.3/24/08), 977 So.2d 953; Dufour v. Westlawn Cemeteries, Inc., 94-81 (La.App. 5th Cir.6/28/94), 639 So.2d 843. The burden of proof of establishing the exception of no right of action is on the exceptor. City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170 (La.3/2/99), 739 So.2d 748; Richland Parish Police Jury v. Debnam, supra; Dufour v. Westlawn Cemeteries, Inc., supra.

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. Kinchen v. Livingston Parish Council, 07-0478 (La.10/16/07), 967 So.2d 1137; Fink v. Bryant, 01-0987 (La.11/28/01), 801 So.2d 346. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether the plaintiff is afforded a remedy in law based on the facts alleged in the pleading. Kinchen v. Livingston Parish Council, supra; Fink v. Bryant, supra. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. Id. The exception is triable on the face of the pleadings and for the purposes of determining the issues raised by the exception; the well-pleaded facts in the petition must be accepted as true. Id.

I. Exceptions of No Right of Action as to Chevron, Merit & Devon

a. The Subsequent Purchaser Doctrine

Plaintiffs assert that the trial judge committed error (1) in sustaining Defendants’ exceptions of no right of action on the basis of the subsequent purchaser doctrine, (2) in failing to find that Plaintiffs have a right of action as third party beneficiaries of the mineral leases obtained by Defendants, and (3) in failing to follow Magnolia Coal Terminal v. Phillips Oil Co., 576 So.2d 475 (La.1991).

Operations on Plaintiffs’ property were initialized by Chevron in 1945 pursuant to mineral leases obtained from the owners at that time, the Pasternack family. The oil leases covering the property remain in effect today due to production. All mineral rights were retained by the Pasternack family in the deed of sale of the land to the Funderburgs. The 2004 deed of |r,sale from the Funderburgs to Plaintiffs does not include a specific assignment of the right to sue for property damages that may have occurred prior to their acquisition of the property.

The general rule, often referred to as the subsequent purchaser doctrine, is that a purchaser cannot recover from a third party for property damage inflicted prior to the sale. St. Jude Medical Office Bldg. Ltd. Partnership v. City Glass and Mirror, Inc., 619 So.2d 529 (La.1993); Lejeune Bros., Inc. v. Goodrich Petroleum Co., L.L.C., 06-1557 (La.App. 3d Cir.11/28/07), 981 So.2d 23, writ denied, 08-0298 (La.4/4/08), 978 So.2d 327; St. Martin v. Mobil Exploration & Producing U.S. Inc., 224 F.3d 402 (5th Cir.2000). It is the landowner at the time of the alleged damages who has the real and actual interest to assert a claim. Lejeune Brothers, Inc. v. Goodrich Petroleum Co., supra; Dorvin Land Corp. v. Jefferson Parish, 469 So.2d 1011 (La.App. 5th Cir.1985); St. Martin v. Mobil Exploration & Producing U.S. Inc., supra.

The right to damages conferred by a lease, whether arising under a mineral lease or a predial lease, is a personal right, not a property right; and, as a personal right, it does not pass to the new owners of the land when there is no specific conveyance of that right in the instrument of sale. La. C.C. art. 1764; Prados v. South Central Bell Tel. Co., 329 So.2d 744 (La.1975); Lejeune Brothers, Inc. v. Goodrich Petroleum Co., supra. The reasoning behind these principles is that the buyer is presumed to know the overt condition of the property and to take that condition into account in |7agreeing to a sales price. Prados v. South Central Bell Telephone Co., supra; Lejeune Brothers, Inc. v. Goodrich Petroleum Co., supra.

The Wagoners were not parties to the mineral leases obtained by Chevron from the Pasternack family. When the Wagoners purchased the land in 2004, the deed of sale contained no express assignment of the right to sue mineral lessees for property damages that occurred prior to their acquisition of the property. Additionally, there is no language in the mineral leases constituting a stipulation pour autrui thereby allowing the Wagoners the right to sue for damages as third party beneficiaries to the leases. Magnolia Coal Terminal v. Phillips Oil Co., supra; Andrepont v. Acadia Drilling Company, 255 La. 347, 231 So.2d 347 (La.1969); Lejeune Brothers, Inc. v. Goodrich Petroleum Co., supra; Hazelwood Farm, Inc. v. Liberty Oil and Gas Corp., 01-0345 (La.App. 3d Cir.6/20/01), 790 So.2d 93, writ denied, 01-2115 (La.7/26/01), 794 So.2d 834.

In Magnolia Coal Terminal v. Phillips Oil Co., supra, the mineral lease at issue contained a clause stipulating that “Lessee shall pay for all damages caused by Lessee’s operations, including damage to ... soil and other property....” This clause created an obligation on the part of the lessee to pay for property damages resulting from its operations, regardless of who owned the property at any given time and regardless of whether that property owner was a party to the lease. Consequently, the plaintiff property owners in Magnolia Coal Terminal v. Phillips Oil Co., supra, were considered third party beneficiaries to the lease. Since the mineral leases at issue in the case sub judice do not contain language conferring third party Isbeneflciary rights to the Wagoners, this case is distinguishable from Magnolia Coal Terminal v. Phillips Oil Co., supra.

In summary, the right to sue for property damages conferred by the mineral leases obtained by Defendants is a personal right which did not pass to the Wagoners by virtue of their purchase of the land. Additionally, there was no express conveyance of that right in the instrument of sale. Accordingly, Plaintiffs have no right to sue for pre-acquisition property damages under the mineral leases obtained by Chevron, Merit and Devon.

b. The Mineral Code

Plaintiffs also claim that the trial judge erred in failing to consider Articles 11, 128 and 129 of the Mineral Code when he granted Defendants’ exceptions of no right of action. La. R.S. 31:11; La. R.S. 31:128-29. A mineral lessee may have tort liability if it unreasonably exercises its rights under a mineral lease. La. R.S. 31:11; Lejeune Brothers, Inc. v. Goodrich Petroleum Co., supra. The owner of a mineral servitude is entitled to use only so much of the land as is reasonably necessary to conduct his operations. La. R.S. 31:22. He is obligated, insofar as practicable, to restore the surface to its original condition at the earliest reasonable time. Id. A mineral lessee is bound to perform the contract in good faith and to develop and operate on the property leased as a reasonably prudent operator for the mutual benefit of himself and his lessor. La. R.S. 31:122.

To the extent of the interest acquired, an assignee or sublessee acquires the rights and powers of the lessee and becomes responsible directly to the original lessor for performance of the lessee’s obligations. IflLa. R.S. 31:128. An assignor or sublessor is not relieved of his obligations or liabilities under a mineral lease unless the lessor has discharged him expressly and in writing. La. R.S. 31:129.

We agree with the position of the trial judge, as well as that of Defendants, that these Mineral Code articles contemplate and govern the reciprocal relationship between the lessor and the lessee; and, since Plaintiffs are not lessors or parties to the leases obtained by Defendants, nor were they assigned rights under the leases as third party beneficiaries, they have no general right of action under Articles 11, 128 and 129 of the Mineral Code.

c. Continuing Tort, Nuisance, Trespass & Independent Right of Action in Tort

Plaintiffs further contend that the trial judge erred in failing to find they had a right of action against Defendants based on: (1) the doctrine of continuing tort, (2) nuisance (La.C.C. art. 667), (3) trespass and (4) independent tort theory. Plaintiffs contend that Chevron’s failure to remediate the leaking pits and to restore the condition of the land is causing their property to increasingly deteriorate and, thus, constitutes a continuing tort. Plaintiffs assert that, as a result, they have a right to sue for the pre-acquisition damages to their property. As previously mentioned, Plaintiffs purchased the land at issue in 2004 and brought suit four years later in 2008.

In the circumstances of a continuing tort, the nature of the alleged conduct has the dual effect of rendering such conduct tortious and of delaying the commencement of prescription. Bustamento v. Tucker, 607 So.2d 532 (La.1992). To have a continuing tort, there must be | ^“continuous conduct” that causes “continuous damages.” Id. To determine whether a continuing tort exists, “[t]he court must look to the operating cause of the injury sued upon and determine whether it is a continuous one giving rise to successive damages, or whether it is discontinuous and terminates, even though the damage persists and may progressively worsen.” Marin v. Exxon Mobil Corp., 09-2368, 09-2371 (La.10/19/10), 48 So.3d 234; Hogg v. Chevron USA, Inc., 09-2632, 09-2635 (La.7/6/10), 45 So.3d 991. “A continuing tort is occasioned by unlawful acts, not the continuation of the ill effects of an original, wrongful act.” Marin v. Exxon Mobil Corp., supra; Crump v. Sabine River Authority, 98-2326 (La.6/29/99), 737 So.2d 720.

The failure to contain or properly remediate the leakage does not constitute a continuing wrong because the failure to remediate was not the operating cause of the damage; the leakage was. Marin v. Exxon Mobil Corp., supra; Hogg v. Chevron USA, Inc., supra. The breach of a duty to right an initial wrong is not considered a continuing wrong that suspends the running of prescription. Marin v. Exxon Mobil Corp., supra; Crump v. Sabine River Authority, supra.

In the case sub judice, the alleged operating cause of the contamination on Plaintiffs’ property was the use of the unlined pits. Chevron’s use of the pits terminated prior to 1990. Chevron’s failure to remed-iate the leakage from the pits does not constitute a continuing wrong because the failure to remediate was not the cause of the damage; the leakage was. Marin v. Exxon Mobil Corp., supra; Hogg v. Chevron USA, In Inc., supra. Consequently, the continuing tort doctrine is inapplicable to this case.

Even assuming that Plaintiffs did have a right of action in one or more tort claims, we agree with the trial judge that any and all of those tort claims would be prescribed. Delictual actions are subject to a liberative prescription of one year. La. C.C. art. 8492. La. C.C. art. 3493 provides, however, that “[w]hen damage is caused to immovable property, the one year prescription commences to run from the day the owner of the immovable acquired, or should have acquired, knowledge of the damage[.]” La. C.C. art. 3493.

Knowledge sufficient to start the running of prescription is considered “the acquisition of sufficient information, which, if pursued, will lead to the true condition of things.” Marin v. Exxon Mobil Corp., supra; Young v. International Paper Co., 179 La. 803, 155 So. 231 (La.1934). The ultimate issue in determining whether a plaintiff had constructive knowledge sufficient to commence a prescriptive period is the reasonableness of the plaintiffs action or inaction in light of his education, intelligence and the nature of the defendant’s conduct. Marin v. Exxon Mobil Corp., supra; Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502; Griffin v. Kinberger, 507 So.2d 821 (La.1987).

The Wagoners waited to bring suit until four years after they purchased the property at issue, but they claimed in their original petition that they discovered the damages “less than one year” prior to filing suit. When purchasing the property, however, Plaintiffs were fully aware that | i;>they were only purchasing the surface rights to the property and that the mineral rights had been retained by previous owners who had sold the property in 1999, with mineral leases encumbering the land since 1945. Information was, therefore, readily available to Plaintiffs via public conveyance records and the records of the Office of Conservation indicating that there had been active oil lease operations for nearly 60 years on the land they had decided to purchase. Plaintiffs could have easily acquired knowledge of the property damage resulting therefrom within their first year of owning the property.

Consequently, we find that Plaintiffs “acquired, or should have acquired, knowledge of the [property] damage” on their land more than one year prior to bringing suit in August 2008. La. C.C. art. 3493. As a result, we find that, even if Plaintiffs had a right of action in tort, any and all tort claims asserted by Plaintiffs have prescribed.

Given our finding that the continuing tort doctrine is inapplicable to this case and that any other tort claims brought by Plaintiffs in this suit have prescribed, we pretermit discussion of Plaintiffs’ assignments of error relating to nuisance (La. C.C. art. 667), trespass or independent right of action in tort.

d. Act 312 (La. R.S. 30:29)

Plaintiffs also complain that the trial judge erred in failing to find that they have a right of action against Defendants pursuant to La. R.S. 30:39. Plaintiffs argue that La. R.S. 30:29(H), i.e., Act 312, creates a right of action | isin their favor by “specifically referring to the ‘owner of the land’ as the party with the right of action.”

La. R.S. 30:29(H) provides:

This Section shall not preclude an owner of land from pursuing a judicial remedy or receiving a judicial award for private claims suffered as a result of environmental damage, except as otherwise provided in this Section. Nor shall it preclude a judgment ordering damages for or implementation of additional remediation in excess of the requirements of the plan adopted by the court pursuant to this Section as may be required in accordance with the terms of an express contractual provision. Any award granted in connection with the judgment for additional remediation is not required to be paid into the registry of the court. This Section shall not be interpreted to create any cause of action or to impose additional implied obligations under the mineral code or arising out of a mineral lease. (Emphasis added).

On reviewing the plain wording of the statute as emphasized above, as well as applicable Louisiana Supreme Court jurisprudence, we agree with the trial judge that La. R.S. 30:29 is procedural, rather than substantive, and does not create a right of action in favor of landowners. M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371 (La.7/1/08), 998 So.2d 16.

In conclusion, we find that the trial judge properly sustained the exceptions of no right of action advanced by Defendants and, further, that the first ten assignments of error asserted by Plaintiffs are without merit.

Considering our finding that Plaintiffs do not have a right of action in contract or tort against Chevron, Merit or Devon, we pretermit discussion of Plaintiffs’ contention that Chevron, Merit and Devon are solidary obligees with the other remaining Defendants in this suit.

| UII. No Cause of Action for Punitive/Exemplary Damages

In their eleventh assignment of error, Plaintiffs assert that the trial judge erred in sustaining Defendants’ exceptions of no cause of action for punitive damages. As pointed out by Defendants, the court minutes, as well as the trial judge’s written reasons for judgment, clearly indicate that Plaintiffs, in open court, explicitly waived their claims for punitive/exemplary damages. The trial judge did not err in sustaining this exception of no cause of action.

This assignment of error is without merit.

III. No Cause of Action for Civil Fruits or Storage

In their final assignment of error, Plaintiffs argue that they have a cause of action for civil fruits or storage because Defendants, as trespassers and, thus, bad faith possessors, have derived an economic benefit from their storage of hazardous waste on Plaintiffs’ land without permission. According to Plaintiffs, the economic benefit of this storage is equal to the cost that Defendants would have incurred had their waste been properly disposed of or stored elsewhere. Plaintiffs urge that the economic benefit reaped by Defendants qualifies as a civil fruit under La. C.C. art. 551.

La. C.C. art. 486 provides in part that a possessor in bad faith is bound to restore to the owner the fruits he has gathered, or their value, subject to his claim for reimbursement of expenses. La. C.C. art. 551 defines fruits as things that are produced by or derived from another thing without diminution of its substance. Article 551 further specifies that civil fruits are revenues derived from a thing by operation of law or by reason of 11Ba juridical act, such as rentals, interest and certain corporate distributions. La. C.C. art. 551.

The “savings” or economic benefit realized by Defendants in storing/disposing of their production waste/byproducts on the property rather than storing/disposing of them offsite does not qualify as a “fruit” or a “civil fruit.” Nothing was produced by or derived from the property as a result of the storage/disposal of the waste; and, further, there were no revenues, such as rentals, interest or a corporate distribution, derived from the property by virtue of the storage/disposal of the waste.

Further, given our finding that the production waste/byproducts on Plaintiffs’ land do not qualify as fruits or civil fruits, Plaintiffs do not have a cause of action for compensation for the storage/disposal of the production waste/byproducts on their property. Accordingly, we find that the trial judge did not err in sustaining this exception of no cause of action.

This assignment of error is without merit.

CONCLUSION

For the reasons set forth herein, we affirm the trial court’s judgment granting the exceptions of no right of action in favor of Chevron, Merit and Devon, denying the exceptions of no right of action advanced by the other Defendants and granting all other exceptions advanced or adopted by Defendants. Costs are assessed to Plaintiffs.

AFFIRMED.

BROWN, C.J., dissents with reasons.

BROWN, Chief Judge,

dissenting.

|TI respectfully dissent.

Initially, a panel of this court unanimously reversed a trial court’s grant of certain exceptions of no right of action filed by mineral lessees, Chevron, Devon and Merit. Rehearing, however, was granted because of a similar case pending before the Louisiana Supreme Court. That case, Marin v. Exxon Mobil Corp., 09-2368, 48 So.3d 234 (La.10/19/10), has now been decided; however, disappointingly, in Marin, the supreme court did not reach an opinion on the issue that is specifically presented in the case sub judice. In that case, in a footnote, the majority opinion states:

We note that one of the reasons we granted this writ was to determine whether a subsequent purchaser has the right to sue for property damages that occurred before he purchased the property, particularly where the damage was not overt. However, we need not reach that determination in this case because, assuming the Breauxs had a right as a subsequent purchaser to sue in tort for property damage, that right has prescribed. Further, we note that regardless of who has standing to pursue claims for money damages, the mrrent owner of property always has the right to seek a regulatory cleanup of a con- laminated site. La. R.S. 30:6(F); La. R.S. 30:16. (Emphasis theirs).

The circuit courts are split on whether a subsequent purchaser has the right to sue for property damages that occurred before he purchased the property. Although recognizing the need to resolve this question, the supreme court was unable to agree and passed. Thus, the only supreme court decision extant is Magnolia Coal Terminal v. Phillips Oil Co., 576 So.2d 475 (La.1981). In that case, plaintiff purchased contaminated property that was burdened with a mineral lease. The seller reserved all mineral |¡>rights in the act of sale. After the purchase, Magnolia sued the successor and assignee of the mineral lease seeking remediation of the contamination. Even though most of the damage resulted from a blowout on the property 17 years before Magnolia purchased it, the Louisiana Supreme Court held that Magnolia had a right to restoration. The supreme court specifically held that “Magnolia’s right to recover damages is a property right arising out of the original lease and attached to the property.” Magnolia Coal Terminal, 576 So.2d at 483.

What is also clearly expressed in the Marin footnote is that the current landowner can sue for remediation of his property. La. R.S. 30:29. See also M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371, (La.07/01/08), 998 So.2d 16. This would include as defendants the mineral servitude owner, i.e. the lessor, as well as the lessee. Even so, the majority now on rehearing holds that the current owners of the surface, the Wagoners, have no right of action against the prior mineral lessees, Chevron, Devon and Merit.

Except as otherwise provided by law, an action can be. brought only by a person having a real and actual interest which he asserts. La. C.C.P. art. 681. The majority on rehearing reasoned that a landowner at the time of injury is the only person who has a real and actual interest in the land and that this interest is a personal right that does not run with the land absent an expressed assignment. Because the Wagoners were not the owners of the property at the time of the injury and because their deed did not have an 1 Sassignment of subsequently arising causes of action, the majority holds that plaintiffs have no right of action. I respectfully disagree.

The Mineral Code is clear that a mineral lease is a real right. La. R.S. 31:16 provides:

The basic mineral rights that may be created by a landowner are the mineral servitude, the mineral royalty, and the mineral lease. This enumeration does not exclude the creation of other mineral rights by a landowner. Mineral rights are real rights and are subject either to the prescription of nonuse for ten years or to special rules of law governing the term of their existence. (Emphasis added).

Comments following La. R.S. 31:16 state, “All things considered, the lease has the major characteristics of a real right: the mineral lease may follow the land, regardless of transfers of ownership; the mineral lessee (or holder of a mineral servitude) may assert his rights against the world just as the proprietor of any other real right; he may enjoy directly and draw from the land a part of its economic advantages by appropriating a wasting asset; he has certain rights of preference; and he holds a right that is in reality susceptible of a type of possession through exercise.”

In the case sub judice, the mineral lease from the Pasternacks to Chevron came first. Then, the Pasternacks became mineral servitude holders when they sold the property to the Funderburgs with a reservation of the minerals. The Funderburgs thereafter sold the property to the Wagoners.

Because of production, the mineral servitude remains viable and the current owners of the property are subject to the real obligations and burdens of the mineral servitude and lease. “The owner of the dominant Restate may not make a use of the servitude that aggravates the condition of the servient estate. Whether a particular use results in aggravation of the condition of the servient estate is a question of fact, determined in light of the circumstances of each case. Courts take into account the situation of the estates, the needs of the dominant estate, and the prejudice, if any, sustained by the owner of the servient estate.” A.N. Yiannopoulos, 4 Louisiana Civil Law Treatise, Predial Servitudes, § 156 (3d ed.2004). See also Dupree v. Oil, Gas & Other Minerals, 31,869 (La. App.2d Cir.05/05/99), 731 So.2d 1067.

The Mineral Code places the lessee under an obligation to act as a prudent operator as to both surface and subsurface. An assignment does not relieve the lessees (Chevron, Merit and Devon) of their obligation “under the mineral lease.” La. R.S. 31:129. Likewise, the Code places the mineral servitude owner under an obligation to respect the rights of the surface owner. La. R.S. 31:22. A mineral lease and servitude are real rights and burdens on the immovable. The surface owners are subject to these real obligations. Chevron, Merit and Devon have a continuing and correlative responsibility as to the surface owners, the Wagoners.

Two recent appellate cases have rejected the subsequent purchaser doctrine. They are the First Circuit’s decision in Marin v. Exxon Mobil Corp., 08-1724 (La.App. 1st Cir.09/30/09), 2009 WL 7004332 (as previously stated, on review the supreme court declined to address this issue), and the Fourth Circuit’s decision in Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., 09-0298 (La.App. 4th Cir.02/10/10), 47 So.3d 428.

In Eagle Pipe and Supply, Inc., plaintiffs purchased land that they later discovered was contaminated with radioactive waste. Initially, the majority held that because the contamination occurred under a lease prior to purchase, and the personal (as opposed to a real) right to recover damages therefrom was not expressly assigned by the former owners, plaintiffs had no right of action. On rehearing in Eagle Pipe and Supply, Inc., supra, a new majority reversed the earlier decision and held that plaintiffs were in fact the party who sustained injury and rejected the subsequent purchaser doctrine. Writing for the majority on rehearing, Judge Bonin stated:

The general rule regarding the assertion of a real and actual interest is contained in La. C.C. art. 2315(A): “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” The complex factual background of the current case, involving the subsequent purchase of property with a hidden defect, does not present sufficient reason to depart from the fundamental principles of injury and reparation ...
The injury is not dispelled by a subsequent purchase, and therefore we see no reason why the right to seek remedy for it should be. The injured party should not be precluded from seeking reparation merely because the damage remained hidden long enough for the property to be sold. In such cases, injury is deemed to occur when the damage is, or should have been, discovered. See, e.g., Ricks v. Kentwood Oil Co., Inc., 09-0677 (La.App. 1st Cir.02/23/10), 38 So.3d 363 (“triggering event” for coverage of emotional and mental distress damages was date of discovery, as opposed to date of harmful conduct, where test of well’s water indicated presence of toxic substances from non-overt gasoline leak caused by oil company’s underground storage unit) ...
Eagle Pipe has lost the use of its land and will incur the cost of remediating the property; its property has clearly been damaged by the depositing of radioactive materials. The oil companies and transporters, if deemed responsible, are therefore obliged to make preparations to “him who suffered the injury.” Citation omitted. As a party “who suffered [an] injury,” Eagle Pipe enjoys a right of action.
Therefore, applying La. C.C. art. 2315 and the Clark line of cases, we hold that: (1) the manifestation of radioactive contamination allegedly caused by defendants constitutes an injury giving rise to a legitimate cause of action; (2) the previous owners sustained no injury through the sale of the land because they allegedly received full value for their interest as if it were uncontaminated; (3) Eagle Pipe is an injured party because the damage manifested itself after Eagle Pipe’s purchase of the land, thus devaluing Eagle Pipe’s acquisition and requiring its remediation, and (4) as an injured party, Eagle Pipe is deserving of reparation.

In the instant case, the landowners, the Wagoners, who are naked of any mineral ownership and subject to two real rights/dominant estates, can sue under the mineral code the lessees and servitude holder to clean up their property. La. R.S. 31:122, 129 and 22. Incidental and ongoing damages to the servient estate are likewise recoverable.

      . Larry Wagoner, Jean Wagoner, Russell G. Wagoner, Angela C. Wagoner, Roy Wagoner, and Ivie Wagoner.

      . Chevron U.S.A. Inc., Devon Energy Production Company L.P., McGowan Working Partners, Inc., Merit Energy Company, LLC, Merit Management Partners I, L.P., Merit Energy Partners III, L.P., Merit Energy Partners D-III, L.P., Smith Operating & Management Co., Spokane Oil & Gas, LLC, Sunset Oil & Gas, L.L.C., Denbury Onshore LLC, Diamond South Operating, L.L.C., LSJ Exploration, L.L.C., and Oil & Ale LSJ, L.L.C.

      . Larry Wagoner, Jean Wagoner, Russell G. Wagoner, Angela C. Wagoner, Roy Wagoner and Ivie Wagoner.

      . Chevron U.S.A. Inc., Devon Energy Production Company L.P., McGowan Working Partners, Inc., Merit Energy Company, L.L.C., Merit Management Partners I, L.P., Merit Energy Partners III, L.P., Merit Energy Partners D-III, L.P., Smith Operating & Management Co., Spokane Oil & Gas, L.L.C., Sunset Oil & Gas, L.L.C., Denbury Onshore L.L.C., Diamond South Operating, L.L.C., LSJ Exploration, L.L.C. and Oil & Ale LSJ, L.L.C.

      .Merit Energy Company, L.L.C., Merit Management Partners I, L.P., Merit Energy Partners III, L.P., Merit Energy Partners D-III, L.P.

      . In subsections (a) through (d) of Part I of this opinion, "Defendants” refers to "Chevron, Merit and Devon.”

      . Smith Operating & Management Co., Spokane Oil & Gas, L.L.C., Sunset Oil & Gas, L.L.C., Denbury Onshore L.L.C., Diamond South Operating, L.L.C., LSJ Exploration, L.L.C. and Oil & Ale'LSJ, L.L.C.