WISDOM, Circuit Judge:
In this diversity action conflicting claims of the plaintiff and of the State of Louisiana to oil-rich water bottoms raise the question whether the State (a) in its capacity as the defendant’s lessor and also (b) in its capacity as a sovereign State asserting title to allegedly inalienable beds of navigable waters is an indispensable party defendant.
The land in suit is in Plaquemines Parish, Louisiana. It is covered by the waters of Breton Sound, an arm of the Gulf of Mexico. The plaintiff, Fred Zuchenig, a resident of Missouri, is the adopted son and sole heir of his uncle, Martin Zuchenig. The plaintiff alleges that at one time the property was swamplands;
that the State patented the land in 1911 to one Millard C. Baker; and that, after several intermediate transfers, Martin Zuchenig bought the land in 1912. In 1915 Martin Zuchenig lost the land to the State for unpaid taxes. In 1961 Fred Zuchenig redeemed it.
Meanwhile, in 1951 the State, through its Mineral Board, executed Mineral Lease 1960, leasing Tract 4778 to the
California Company. This tract encompasses the property lost to the State for unpaid taxes but later redeemed. The Company has drilled four oil wells on Tract 4778 — two completed wells, two dry holes- — all in navigable waters. The State has received royalties on all production from the two completed wells.
In 1961 Fred Zuchenig filed this peti-tory (title) action against California Company. In addition to asking the court to recognize his sole ownership of the property in dispute, the plaintiff demanded that California Company account for all oil and gas taken from the land. California Company, asserting possession under the mineral lease from the State of Louisiana, moved to dismiss on the ground that the State, an indispensable party, had not been joined. The district court gave Zuchenig leave to join the State; when he failed to do so, the court dismissed the action for failure to join an indispensable party. Fed.R.Civ. P. 19. We affirm the dismissal of plaintiff’s demand for a decree of ownership; we reserve judgment as to the accounting.
I.
A threshold problem is whether, in a diversity action, indispensability is a matter governed by state or federal law.
The Federal Rules of Civil Procedure offer no clear solution. In general, the Federal Rules dealing with joinder are not finely drawn. They derive from common law rules leavened by equity.
Rules 19 and 20, after a passing nod to the old common law standard, jointness of interest,
adopt by indirection the classification laid down by the Supreme Court in Shields v. Barrow, 1855, 17 How. 130, 147, 15 L.Ed. 158. There Justice Curtis described the “three classes of parties to a bill in equity”: formal,
necessary, and indispensable.
Rule 19, dealing with “necessary joinder”, refers to “persons who are not indispensable, but who ought to be parties if complete relief is to be accorded between those already parties”.
Rule 19 gives no content to the term “indispensable”. The .rule is said to be merely declaratory of existing law.
It is questionable, however, whether Rule 19 is declaratory of federal law or of state law, or, indeed, of either.
In Hanna v. Plumer, 1965, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8, decided in April of this year, the Supreme Court discussed the relationship between the Federal Rules, the Rules Enabling Act,
and the Constitution. The Court distinguished between the line of cases classifying matters as substantive or procedural for the purpose of adjudicating the validity of various federal rules (Sibbach v. Wilson & Co., 1940, 312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479, and progeny) and the line of cases making that classification under the rule in Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58
S.Ct. 817, 82 L.Ed. 1188,
none of which, said the Court, finally required a determination of the validity of a federal rule. The Court pointed out that Congress has the
power
to regulate “matters which, though falling within the uncertain area between substance and procedure, are rationally capable of classification as either”, 380 U.S. at 472, 85 S.Ct., at 1144, even where, in absence of an applicable federal rule or federal statute, Erie R. Co. v. Tompkins might require application of state law. A court instructed to apply a federal rule may “refuse to do so only if the Advisory Committee, [the Supreme] Court, and Congress erred in their prima facie judgment that the rule in question transgresses neither the terms of the Enabling Act nor constitutional restrictions”. 380 U.S. at 471, 85 S.Ct. at 1144. The opinion does not undertake to say what, if any, difference there is between the “terms of the Enabling Act” and “constitutional restrictions” — that is, whether the Enabling Act exhausts the power of Congress to regulate practice and pleading in diversity suits. But in any event, the “uncertain area” that the Court mentions includes matters neither so clearly substantive that the Constitution requires that they be governed by state law,
nor so clearly procedural that the Court may regulate them simply through its inherent rule-making power.
Hanna v. Plumer introduces a helpful double abstraction- — the
choice of choice of law.
The decision makes clear that the first inquiry for a diversity court seeking the proper source of the law governing indispensability — or any other matter potentially affected by the Federal Rules — is which of the Supreme Court’s two lines of decision is pertinent. Do the Federal Rules “cover” indispensability? That is, does Rule 19, by mentioning indispensability, incorporate by reference the entire body of federal indispensability precedent? The easy answer is, “No”. In the first place, the text of the rule gives not the slightest clue as to the criteria that a federal court should apply in deciding who must, as opposed to who should or merely may, be joined. Second, no federal court faced with a conflict between a state indispensability rule and federal precedent has ever treated the question as one involving the validity of Rule 19. The cases, though many, are widely discrepant
as to which law should apply.
But every court that has dealt with the issue at all seems to have treated it, appropriately in our view, as a run-of-the-mine Erie problem, requiring the usual balancing of substantive and procedural elements.
Unhappily, indispensability matters do not fall neatly into categories. Several factors urge application of federal law: Obviously joinder is, in a sense, always a matter of procedure, if that aging shibboleth still serves. And indispensability, while not properly regarded as a jurisdictional issue,
is closely related to jurisdiction,
and may act to defeat diversity jurisdiction. Moreover, “the concept of indispensability * * * was to a large extent self-imposed as a limitation upon federal equity jurisdiction, and there is a large body of federal indispensability precedent”. Note, Developments in the Law, Multiparty Litigation in the Federal Courts, 71 Harv.L.Rev. 874, 888. Current theory, “which regards compulsory joinder as a discretionary matter, dependent on a realistic analysis of the facts of the case rather than as a matter governed by conceptual classifications of the interests of the parties”,
lends further support to the view that federal, rather than state, law should govern
2 Barron & Holtzoff, Federal Practice and Procedure § 511 (Wright Ed. 1961). On the other hand, rules of joinder depend on the substantive rights and liabilities of the parties, present and
absent. In diversity actions, these substantive rights and liabilities are creatures of state law. Whenever a missing person cannot be joined, rules of indispensability are “outcome determinative”, in the sense that they control whether the pending action must be dismissed. Disparities between federal and state indispensability rules, therefore, may affect primary private activity, and will necessarily encourage forum-shopping.
Professor Wright characterizes the conflict in the cases as “more apparent than real”: state law determines the interests of the parties; federal law determines whether these state-created interests render a missing person indispensable. Wright, Federal Courts 260 (1963), This short-hand formulation must at least be qualified insofar as it leaves room for a federal court to run afoul of Angel v. Bullington, 1947, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832, by entertaining diversity actions unavailable under state law.
Professor Wright has recognized this caveat suggested by Judge Wyzanski in Stevens v. Loomis, D.C.Mass.1963, 223 F.Supp. 534, aff’d., 1 Cir. 1964, 334 F.2d 775. “Judge Wyzan-ski carefully points out the limitation that if, as a matter of substantive law, a state does not recognize that a plaintiff has a particular right of action unless he joins with him certain others, then the federal court in a diversity action is precluded from giving a plaintiff who fails to join those others an opportunity to proceed as though alone he had a substantive right.” 2 Barron & Holtzoff, Federal Practice and Procedure § 511 (1964 pocket part) (Wright ed. 1961). Even under Judge Wyzanski’s view, however, the mere fact that state law labels a missing person “indispensable” may not always be controlling in federal court. If, for instance, a state indispensability rule were based purely on some administrative or procedural consideration, conceivably that rule might not conclude a federal diversity action.
The nature and purpose of the state rule must be determined in each case.
II.
Turning now to the indispensability of a lessor as a party defendant, we hold that Louisiana law requires dismissal of the plaintiff’s demand for a declaration of ownership. Louisiana law styles the action brought by Kuchenig a “petitory” action.
Article 3651 of the Louisiana Code of Civil Procedure describes Kuchenig’s complaint precisely:
The petitory action is one brought by a person who claims the ownership, but who is not in possession of immovable property or a real right, against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiff’s ownership.
Comment (b) of the Official Revision Comments under article 3651 recites that the petitory action
must be brought directly against the adverse claimant of ownership, or if there is no adverse claim, against the person in possession. There is no requirement that the action be brought against the tenant, since the latter does not possess for himself but only for his lessor.
Where, as here, there is an adverse claim of ownership, the petitory action, as a substantive right, is not available against adverse claimant’s lessee alone.
The Louisiana Supreme Court has made clear its view that although other relief may be had against a lessee, a claimant out of possession has no right to a decree of ownership in the absence of the adverse lessor. Walmsley v. Pan American Petroleum Corporation, 1963, 244 La. 513, 153 So.2d 375; Daigle v. Pan American Production Company, 1958, 236 La. 578, 108 So.2d 516. Each of these cases, one decided before, the other after, the present Louisiana Code of Civil Procedure became effective in •1961, involved a suit by a claimant out of possession against a lessee under a state mineral lease and the State Mineral Board. In neither action was the State itself a party. The plaintiff in Daigle sought both a declaration of ownership and cancellation of the adverse state lease. The Louisiana Supreme Court, noting that the lease had expired and that a release had been executed, held that the suit was merely a petitory action and an action to establish title, and that it could not be maintained in absence of the State itself:
The action to establish title to real estate (LSA-R.S. 13:5062) and the petitory action which plaintiff seeks to bring against the State Mineral Board, being concerned solely with the question of title to real rights claimed for the state, the state is a necessary party, and plaintiff is without legal right or cause to maintain them as against the State Mineral Board. And it follows that as a predicate to the filing of such a suit, the authorization of the state to be sued must be obtained. 108 So.2d at 519.
The Court said that an action against the State Mineral Board for cancellation of a mineral lease was “not an action against the State”. 108 So.2d at 519.
In Walmsley, however, the plaintiff, styling his action “one to remove a cloud from title or an action to quiet title”, 153 So.2d at 376, sought only cancellation of the state lease. The defendants filed an exception of nonjoinder of an indispensable party, alleging that the suit for cancellation of the lease would necessarily involve a determination of title, and that title to the leased property was in the State, not its mineral board. The State, defendants argued, was an indispensable party under article 641 of the Louisiana Code of Civil Procedure.
The Supreme Court of Louisiana held that, because the plaintiffs sought merely cancellation of the lease, and not a declaration of ownership, the suit was not a petitory action, and the State was not indispensable. Before reaching that conclusion, however, the Court stated plainly the question before it:
The issue presented is whether the State is an indispensable party. The State is an indispensable party if this is a petitory action as defendants contend. The State is not an indispensable party if this is an action to remove a cloud from title as plaintiffs contend. 153 So.2d at 377.
Two justices dissented on the ground that the complaint described a petitory action, and that the State was therefore indispensable.
The present suit is exactly what the Louisiana Supreme Court determined that the action in Walmsley was
not.
The decision in Walmsley was based on the Court’s holding that the plaintiff’s suit did not “have as its object that plaintiffs be declared owners”. 153 So.2d at 379. Here Kuehenig asks for a judgment “decreeing plaintiff to be the owner” of the disputed property. We appreciate the plaintiff’s dilemma: the missing, and indispensable, defendant may not be joined without its consent. But the law of Louisiana, which created this peti-tory action, dictates that it cannot proceed without, indeed that it “must be brought directly against”, the State as lessor
We cannot hold otherwise.
III.
Kuehenig argues that, in spite of Walmsley, Daigle, and Article 3651 of the Louisiana Code of Civil Procedure, the State is not indispensable. The asserted indispensability of the missing de
fendant rests on the State’s long-standing claim to the beds of all navigable waters in Louisiana as the inalienable property of the State. Kuchenig takes the position (a) that the State’s claim to the ownership of validly patented navigable water bottoms has been so severely buffeted by the Louisiana Supreme Court that it no longer amounts to a serious claim; and (b) that the State may in no event be considered indispensable to this suit, because the California Company’s lease from the State does not include the property in issue. Paradoxically, Kuchenig’s arguments require a decision on the merits — in advance of a trial on the merits.
A. The plaintiff’s basic position is that the State cannot be considered an indispensable party because, even if the State were a party to the action, Act. 62 of 1912 (LSA-R.S. 9:5661) would bar the State from asserting title to the disputed water bottoms. This statute provides that “[a]ctions, including those by the State of Louisiana”, to annul a state patent prescribe six years from the date of the issuance of the patent. A number of relatively recent decisions of the Louisiana Supreme Court, relying on Act 62 of 1912, hold that after the expiration of the six year prescriptive period the State can no longer claim property patented to private land owners, even though the property may be under a navigable body of water of great commercial importance.
The appellant’s argument would be sound if the State of Louisiana asserted no claim to beds of navigable waters generally or to the particular land in dispute. This is manifestly not the case, since the State claims the beds of all navigable territorial waters and California Company is in possession under a lease from the State Mineral Board. The district court found: “[I]t now clearly appears from the record that the State of Louisiana, through its official leasing agency, State Mineral Board, does claim ownership of the area on which defendant’s wells were drilled”.
The thrust of the plaintiff’s argument is that there is no “serious dispute” as to title. Undoubtedly, in the proper case, a defendant should not be allowed to impede the progress of litigation by bringing in a stranger with a frivolous claim to title. Here, however, the integrity and dignity of a sovereign State and the State’s interest in several million acres of valuable navigable waters and water bottoms tend to blunt any charge that the claim interposed is not serious. In these circumstances and at this stage of the litigation, the plaintiff totters under a back-breaking burden in attempting to persuade the Court to decide the main issue
now
by holding that the State has no serious claim to title.
The State cannot be brushed off so lightly. The State’s claim rests on the codal principle
and public policy that navigable waters and their beds in Louisiana are “common things”, owned by the State in its sovereign capacity and insusceptible of private ownership. A long line of early jurisprudence supports the State’s position.
The Constitution of 1921 put the public policy on record — ■
it did not create a new policy — in declaring: “Nor shall the Legislature alienate, or authorize the alienation of, the fee, of the bed of any navigable stream, lake or other body of water, except for purposes of reclamation.” La.Const. of 1921, art. 4, § 2. And in 1954 the Louisiana legislature adopted a law stating that Act 62 of 1912 (contrary to the Louisiana Supreme Court’s holding in California Company v. Price, 1954, 225 La. 706, 74 So.2d 1) was not intended to cure patents to the beds of navigable waters. Act 727 of 1954, LSA-R.S. 9:1107-9. Act 727 provides that all patents “heretofore or hereafter” issued purporting to convey beds of navigable waters are null and void.
The plaintiff bases his contention on a series of recent four-three decisions of the Louisiana Supreme Court rejecting the State’s claim to beds of navigable waters. In 1954, in California Company v. Price, 225 La. 706, 74 So.2d 1, the Court, relying on Act 62 of 1912, confirmed a private title to over 4,000 acres of important water bottoms in Grand Bay, a navigable arm of the sea.28 The decision affects the ownership of several million acres of other navigable water bottoms having a potential value to the State of hundreds of millions of dollars.
On rehearing, the Court held that bays and lakes are not “common things” under Article 482 of the Civil Code but “public things”, insusceptible of private ownership only if their dedication to public use is incompatible with private ownership. Accordingly, Act 62 of 1912 cured the patent in question, because at the time the patent was issued there were no statutory or constitutional provisions prohibiting the State from alienating beds of navigable waters.
Eleven days after the Price judgment became final, the Louisiana legislature adopted Act 727 of 1954. This statute, referred to earlier, was designed to overrule Price; it specifically repealed Act 62 of 1912 insofar as the two acts are in conflict. But so far, the State has been singularly unsuccessful in achieving the legislature’s objective. In a second Price suit, California Company v. Price, 1957, 234 La. 338, 99 So.2d 743, the State renewed its claim that beds of navigable waters are not susceptible of private ownership. Again by the narrowest of margins, the Louisiana Supreme Court rejected this contention. The Court held that on principles of res judicata and judicial estoppel the judgment in the earlier case was binding upon the Court. The Court ignored the Attorney General’s plea that he be permitted to test the title in the light of the State’s public policy as declared in Act 727 of 1954.
State v. Cenac, 1961, 241 La. 1055, 132 So.2d 928 is the latest, perhaps not the last, word on the subject. Cenac involved a patent to river lots on Bayou Terrebonne, the rear boundaries of which are the shores of Lake Barre, a navigable lake. The State raised “issues * * identical in every respect with those disposed of in the first [Price decision].” 132 So.2d at 929. Chief Justice Four-
net, who had dissented strongly in the Price cases, writing for the majority in Cenac, held that “stability of titles in this state” compelled the court to follow the Price ruling. Justice Summers concurred, expressing the view that the Act of 1954 could not change the meaning of the Act of 1912. Again three of the seven justices dissented, each writing a separate opinion. The dissents rest not only on the views expressed in the Price dissents but also on Act 727 of 1954; the State should not be denied the opportunity to argue the effect of that Act. “Thus, the present status of Price is that three of the justices feel it is correct, three that it is wrong, and one has expressed no opinion. However, there are now
four
justices that agree that Price is now either an unassailable rule of property or was good law originally. Price seems relatively secure,
at least for the moment.”
We underscore the final clause of this conclusion, noting that the doctrine of stare decisis, in principle, is foreign to the civil law.
We express no opinion as to the validity of the State’s claim. Nevertheless, we are impressed with the support to be found for the State’s position in the Louisiana Constitution, the Civil Code,
and the early jurisprudence. We bear in mind too that Act 727 of 1954, although on the books at the time of Cenac and of the second
Price
decision, has never been tested as to its effect or constitutionality. In view of these considerations, we hold that the claim' of the State of Louisiana to the title in dispute in this case is serious and cannot be decided without the presence of the State.
At this stage in the litigation, it is immaterial whether Kuchenig may prevail on the merits. In determining indispensability of parties, the relief asked, not the relief granted, is the controlling factor:
“The slightest consideration will show that if appellee were right in the view he takes, that the relief granted, rather than that asked, determines indispensability, the whole doctrine and the equitable basis on which it rests would be gone by the board.” Young v. Powell, 5 Cir. 1950, 179 F.2d 147, 152.
This Court’s recent decision in Hilton v. Atlantic Refining Company, 5 Cir. 1964, 327 F.2d 217, reaffirms this rule. In that case, Texas residents sued to remove an oil and gas lease as a cloud on their title. The lessee, a Pennsylvania corporation, removed the case to the federal court. The plaintiff moved to remand, contending that certain Texas residents, as royalty owners, were indispensable parties. The trial court concluded that he would decide the case against the plaintiffs. On these grounds, he held that the royalty owners were not indispensable. This Court reversed, holding that
“ * * * the district judge could not, by determining in advance that he would decide the case adverse to plaintiffs’ claim, made dispensable, parties who would otherwise be indispensable.”
B. Second, Kuchenig argues that California Company has not shown that its lease from the State does in fact purport to cover the property at issue, because (1) the lease excepts from its coverage “tax lands owned by the State of Louisiana” and (2) the property described by the terms of the lease is impossible to locate. If California Company is not a lessee of the State, says Kuchenig, the State is not an indispensable party. The Company answers that the property can, in fact, be located, and that the term “tax lands” refers to
uplands
only. The district court found
that the State of Louisiana, through its official leasing agency, State Mineral Board, does claim ownership of the area on which defendant’s wells were drilled; that it intended to lease said area to defendant and now asserts that it did so. * * *
If there is a weak link in the chain connecting California Company and the disputed mineral rights, and we do not say or imply that it is weak, it is not the lease from the State; it is the State’s title. But the validity of the State’s title is an issue that may not be tried “behind its back”. State of Louisiana v. Garfield, 1908, 211 U.S. 70, 29 S.Ct. 31, 53 L.Ed. 92.
IV.
It does not necessarily follow, however, that Kuchenig’s prayer for an accounting stands or falls with his petitory action. Louisiana law is not clear as to whether a suit for an accounting may be maintained as an independent quasi-contractual action,
or whether it must always be merely incidental to some other theory. Here, if the prayer for an accounting is severable from the peti-tory action, the question arises whether the State is an indispensable party to the accounting. The district court did not consider these hard problems, nor have they been presented to us. We are reluctant to resolve them now, at the risk of doing violence to the law of Louisiana and putting undue strain on our own equitable muscles, especially where subsequent events may render such effort unnecessary.
We note that Kuchenig, pending appeal in this Court,
filed another complaint against the same defendant, in the same district court, concerning the same tract of land.
In this second complaint, however, he asked not a declaration of ownership
but damages for trespass and an accounting for all minerals wrongfully taken.
Under Louisiana law an owner not in possession has a cause of action in tort against a trespasser. Harang v. Bowie Lumber Co., 1919, 145 La. 96, 81 So. 769. California Company moved to dismiss for failure to state a claim on which relief could be granted, and for failure to join the State Mineral Board as an indispensable party; it also sought a summary judgment on the ground that the trespass action had prescribed. The district court, in a written opinion, denied the defendant’s motions, and allowed Kuchenig to amend his pleadings (1) to include an action to quiet title, and (2) to join the Mineral Board as a party defendant. (The court held the Board not immune from suit under the eleventh amendment.) Kuchenig v. California Company, E.D.La.1964, 233 F.Supp. 389.
The accounting
asked for
in the second Kuchenig case is the same as that sought here. However, it may be that, because of prescription, some part of the damages sought in the first suit will not be recoverable in the second, filed several months later. The length of the prescriptive period in the second action will depend on how the accounting is characterized, and perhaps, on when Kuchenig learned of the alleged trespass. These questions are now before the district court. If Kuchenig is successful in his second suit, and if the accounting there is identical with the one sought here, the question whether he may maintain the present action for an accounting independent of his petitory action, and without joining the State, will become moot. We reserve judgment, therefore, as to the accounting, retaining jurisdiction, until the termination of Kuchenig’s second action.
We affirm that part of the judgment of the district court dismissing the plaintiff’s prayer for a declaration of title; we reserve judgment as to the prayer for an accounting, pending the outcome of Kuchenig v. California Company, E.D. La.1964, 233 F.Supp. 389.