The Pleadings.
O’NIELL, J.
Plaintiff, being the owner in possession of a large tract of land in the parish of De Soto, brought three jactitation suits against parties who claim ownership of the mineral oil and gas beneath the surface of the land and claim the right to enter upon the land and bore and explore for oil and gas. The complaint, in substance, is that the. claim of each defendant is in its nature the assertion of a real right upon the land, and is therefore a slander of plaintiff’s title.
The heirs and legal representatives of the deceased Ernest N. Sailing and of his deceased wife, Lottie A. Sailing, were made defendants in all three suits; the allegation being that they claimed ownership of the mineral’oil and gas in and under the land, and had granted a mining lease of the property to the Consolidated Petroleum Corporation, of Wilmington, Del., to bore and explore for oil and gas. The Consolidated Petroleum Corporation was made codefendant in the first suit for having recorded the contract of lease from the Sailing heirs. In the second suit one T. J. Lawrence was made codefendant for having obtained and recorded an assignment from the Consolidated Petroleum Corporation of the contract of lease from the Sailing heirs. In. the third suit the Atlas Oil Company, of Chicago, Ill., was njade codefendant for having "> obtained and recorded an assignment from T*. J. Lawrence of the contract of lease that\he had acquired from the Consolidated Petroleum Corporation. \
In the petition in each suit plaintiff expressly reserved the right to make appropriate answer in the event the defendants should convert the suit into a petitory action by asserting title to the gas or oil, or mineral rights.
Each of the defendants pleaded that the [761]*761plaintiff was not in actual physical possession of the mineral rights, or the oil, gas or other minerals in the land, and therefore had no right to maintain the action for slander of title. Reserving the benefit of the plea, each defendant answered, denying that plaintiff owned any oil, gas or other mineral in the land, and alleging that all of the minerals were expressly reserved from the sale of the land by Ernest N. Sailing and his wife to plaintiff’s grantors of the land.
In answer to defendants’ assertion of title to the oil and gas, in each suit, plaintiff plead'ed the prescription of 10 years, libe-randi causa, alleging that the reservation referred to, in the deed by Ernest N. Sailing and his wife to plaintiff’s grantors, was not a reservation of ownership of the mineral oil and gas itself, but the reservation of a real right, which, not having been exercised during 10 years, was forfeited by nonuser and lost by prescription.
The three suits were consolidated by consent of all parties. Defendants’ exceptions to plaintiff’s want of possession of the oil and gas and plaintiff’s pleas of prescription were referred to the merits, by consent of all parties, without prejudice to either party, or waiver of either plea.
The suits having been tried together on the issue^ thus presented, judgment was rendered in favor of the defendants, overruling plaintiff’s plea of prescription and rejecting plaintiff’s demand in each case.
Plaintiff, prosecuting this appeal, relies only upon the plea of prescription liberandi causa.
It is conceded that these suits pertaining to the oil and gas, if any. there be, in or under plaintiff’s land, do not involve, and shall not determine or affect, the ownership of any other mineral in or under the land.
The Pacts.
Ernest N. Sailing and wife, being the owners of the property in fee simple, sold the land to E. W. Prost- and E. A. Prost, on the 2d of July, 1903, with this reservation (preceding the description of the land), viz.:
“Excepting and reserving unto the first parties [Ernest N. Sailing and Lottie A. Sailing], however, all minerals, coal, fossils and precious stones, in, upon or underneath the lands below described, together with all mining rights connected therewith, including the right to enter upon below-described lands, prospect for, dig and remove any and all minerals and precious stones, in, upon or contained in said lands, with the right to use so much of the said surface of said lands as may be necessary for such purposes; also excepting and reserving unto the first parties the exclusive right and privilege to enter upon the lands below described, or any part thereof, and bore, explore for gas an.d oil, and to utilize and sell gas and oil that may be found or discovered upon said lands, and to use such portions of the surface of said lands as may be necessary to carry oh or conduct their oil and gas operations on said lands, and to carry and convey away from said lands such gas and oil.”
Thereafter E. A. Prost and. E. W. Prost organized the. corporation styled Prost-John-son Lumber Company, plaintiff in these suits ; and, on the 14th of June, 1009, they sold the property to the corporation, without any reservation or .exception, and without mention of any previous reservation or exception, of any minerals or mineral rights. E. A. Prost, however, was president of the corporation, and E. W. Prost was a stockholder.
Ernest N. Sailing and wife having died, their heirs and legal representatives, on the 13th of February, 1917, made a grant of a mining lease on the property to the Consolidated Petroleum Corporation. The latter assigned, the lease, on the 7th of March, 1917, to T. J. Lawrence, who, on the same day, assigned the lease to the Atlas Oil Company.
In April, 1917, the Atlas Oil Company erected a derrick on the land and began boring for oil and gas; whereupon these suits were brought to test the claim of the Sailing heirs and their transferees. v
No attempt had been made by or on behalf [763]*763of Ernest N. Sailing or his wife, or their heirs or. legal representatives, or by or on behalf of any one claiming title from them, to exercise any mineral right reserved from the sale to E. W. Frost and E. A. Frost, until the Atlas Oil Company began operations, 13 years and 9 months after the sale of the land. In the meantime E. W. Frost and E. A. Frost and their transferee, the Frost-Johnson Lumber Company, had been continuously in physical possession of the land, as owners, paying taxes upon it, felling and removing the timber, and exercising all such rights of ownership, undisputed.
Opinion.
The question of plaintiff’s possession of the oil and gas in or under the land, or of possession of the right to take whatever oil oi-gas might be in or under the land, was properly referred to the merits of the case, because that question, as presented by the pleadings, did not depend upon physical possession of the oil or gas separately or apart from the land itself, but depended upon plaintiff’s right to the oil and gas as owner in possession of the land. The prescription relied upon by plaintiff being liberandi cau-sa, not acquirendi causa, the question presented by the plea of prescription is not whether plaintiff has acquired by prescription any right to the oil or gas, but whether defendants have lost by prescription, or by nonuser during the period of 10 years, whatever rights Ernest N. Sailing and his wife reserved with regard to the oil and gas. And the answer to that question depends upon a proper construction of the .titles of the parties, respectively.
11, 2J A person in possession as owner of land has a right of action for slander of title against any one who claims a right to minerals in or under the land, or who claims any real right upon the land. See Wilson v. Pierson, 143 La. 287, 78 South. 561, and De Moss v. Sample, 143 La. 243, 78 South. 482. And it is well settled that, when the question of possession, in a jacti-tation suit, does not depend upon actual occupancy or physical possession, but depends upon a legal conclusion to be derived from a proper construction of the titles, the question of possession is relegated to the merits of the case, or passes out of it; for it would be a begging of the question, in such case, to attempt to decide the question of possession as a preliminary or an independent question. See Perry v. Board of Commissioners of Caddo Levee District, 132 La. 415, 61 South. 511, and Slattery v. Arkansas Natural Gas Co., 138 La. 793, 70 South. 806.
[3] As the ownership of corporeal property is never lost or forfeited by prescription liberandi causa, a decision of this case depends upon whether Mr. and Mrs. Sailing reserved title to the oil and gas itself, if any there was, in or under plaintiff’s land, or reserved merely a real right with regard to the oil and gas.
Plaintiff contends that what Mr. and Mrs. Sailing reserved was, not ownership of the oil or gas itself, but a servitude in favor of the grantors of the land. Plaintiff therefore invokes article 789 of the Civil Code, viz.:
“A right to servitude is extinguished by the uonusage of.the same during ten years.”
Plaintiff contends, too, that, even if the right reserved by Mr. and Mrs. Sailing should not be considered a servitude, as defined in the Civil Code, it was a real right or obligation in their favor imposed upon the land, and that all real rights and obligations are extinguished by the prescription of 10 years, liberandi causa.
Article 3528 of the Code declares:
"The prescription which operates a release from debts, discharges the debtor by the mere silence of the creditor during the time fixed by law, from all actions, real or personal, which might be brought against him.”
And article 3529 declares:
[765]*765“This prescription has also the effect of releasing the owner of an estate from every species of real rights, to which the property may have been subject, if the person in possession of the right has not exercised it during the time requiredtby law.”
Article 8549 declares:
“In eases of prescription releasing debts, one may proscribe against a title created by himself: that is, against an obligation which he has contracted.”
The words “debt” and “obligation,” as used in' these articles of the Code, are synonymous terms. See article 3556, No. 20 and No. 21.
Article 3544 (in the section treating of the prescription which operates a release from debt) declares:
“In general, all personal actions, except those before enumerated, are prescribed by ten years.”
Then follow's article 3546, repeating, in substance, article 789, viz.:
“The rights of usufruct, use and habitation and servitudes are lost by nonuse for ten years.”
Therefore, if the right reserved by Mr. and Mrs. Sailing was, not ownership of whatever oil and gas there was or might have been under plaintiff’s land, but a servitude or real obligation imposed upon the land in favor of Mr. and Mrs. Sailing and their heirs and assigns, the right has been “lost by nonuse for ten years.”
Referring to the language of the instrument quoted above, it appears that the parties to the contract did not consider the mineral oil and gas in the class with solid minerals, coal, fossils and precious stones. For the instrument contains two distinct reservations; the first being a reservation of “all minerals, coal, fossils and precious stones,” and the second being a reservation of “the exclusive right and privilege to enter upon the lands and bore, explore for gas and oil, and to utilize and sell gas and oil that may be found or discovered upon said lands, and to use such portions of the surface of said lands as may be necessary to carry on or conduct their oil and gas operations on said lands, and to carry and convey away from said lands such gas and oil.”
It is not necessary to decide whether, if there were no clause relating particularly to gas and oil, the generic term “minerals,” in the first reservation, would include the fugitive minerals, oil and gas; or whether the term “minerals,” followed immediately by the words “coal, fossils and precious stones,” would mean only minerals ejusdem generis, as coal, fossils and precious stones — solid minerals, or minerals in place. For the effect of this contract, like all other contracts, for that matter, is to be determined by the understanding and intention expressed in the contract. The contracting parties expressed quite plainly their understanding and meaning to be that, though they could reserve the ownership of coal, fossils and precious .stones, and of all minerals in place, or solid minerals, in the land they conveyed, they did not have, and could not reserve, the ownership of the fugitive minerals, oil and gas, that might be in or under the land. Hence, with regard to/ coal, fossils and precious stones, and all “minerals,” within their understanding of the term, the grantors of the land reserved the ownership of those minerals, “together with all mining rights connected therewith, including the right to enter upon the land, prospect for, dig and remove any and all minerals and precious stones upon or contained in said lands”; but, with regard to the fugitive minerals, gas and oil, the grantors did not attempt to reserve the ownership of them, but reserved “the exclusive right and privilege to enter upon the lands and bore and explore for gas and oil, and to utilize and sell the gas and oil that might be found or discovered upon said lands, and to use such portions of the surface of said lands as might be necessary to [767]*767carry on or conduct their oil and gas operations on said lands, and to carry and convey away irom said lands such gas and oil.”
[4] Our opinion is that the idea which the parties to the contract expressed so plainly with regard to fugitive minerals, oil and gas, was correct; that the fugitive minerals, oil and gas, if any there were within or under the land conveyed, were, in their very nature, not such as could be reserved in absolute ownership. That is not an abstract proposition of law, or a matter of metaphysical reasoning; it is a fact.
"Ownership is the right by which a thing belongs to some one in particular, to the exclusion of all other persons.” Rev. Civ. C'bde, art. 4.88.
“It is of the essence of the right of ownership that it cannot exist in two persons for the whole of the same thing; but they may be the owners of the same thing in common, and eaeh for the part which he may have therein.” Rev. Civ. Code, art. 494.
It cannot be said with reason that the owner of a tract of land (particularly if it he not known -to have oil or gas beneath its surface) has that right by which the oil or gas (if any there be in the land) “belongs to some one in particular [the owner of the land] to the exclusion of all other persons.”
The right, which is now universally recognized, of évery landowner to extract, by boring wells on his own land, and appropriate to his own use, without compensation to his neighbor, the oil or gas in a natural reservoir beneath the surface, extending beyond his property line, is not consonant with tne right of “ownership” (as that right is defined in the Code) of the fugitive minerals, oil and gas, running at large beneath the surface.
In the leading case on the subject (Ohio Oil Co. v. Indiana, 177 U. S. 190, 20 Sup. Ct. 576, 44 L. Ed. 730) was presented the question of constitutionality of a statute of Indiana, making it a penal offense for any one having possession or control of a gas well or an oil well to allow the gas or oil to escape for a longer period than two days after having struck gas or oil in the well. The state of Indiana, through the Attorney General, filed a complaint against the Ohio Oil Company, in the circuit court of Madison county, Ind., and obtained a temporary injunction restraining the defendant from permitting the natural gas which, was escaping from five of its oil and gas wells to escape into the open air. The defendant demurred, saying that the complaint did not disclose a cause of action. The demurrer was overruled ; and defendant, answering the complaint, alleged that the mineral oil and natural gas beneath the surface of the land were the property of the owner of the land, even before such oil and gas were reduced to possession or brought under control by the owner of the land, and that therefore an enforcement of the statute, which undertook to control the owner of mineral oil and gas in the manner .of disposing of his property, would be a taking of his property without adequate compensation, and would deprive him of his property and liberty without due process of law, in violation of the Fourteenth Amendment. To this answer the state demurred, saying that the facts alleged in the answer were not sufficient to constitute a defense. The state’s demurrer was sustained, and, on defendant’s refusal to answer further, a decree was entered, making the injunction permanent. On appeal to the Supreme Court of Indiana, the decree of the circuit court was affirmed, and the defendant brought the contest before the Supreme Court of the United States on a writ of error.
The Supreme Court of the United States found that the question of constitutionality of the statute depended mainly, if not entirely, upon the question whether the fugitive minerals, oil and gas, while running at large beneath the surface of the land, could be the' subject of private ownership. The [769]*769Chief Justice, for the court, stated and answered the proposition thus:
“The proposition, then, which denies the power in the state to regulate by law the manner in which the gas and oil may be appropriated, and thus prevent their destruction, of necessity involves the assertion that there can be no right of ownership in and to the oil and gas before the same have been actually appropriated by being brought into the possession of some particular person. But it cannot be that property as to a specified thing vests in one who has no right to prevent any other person from taking or destroying the object which is asserted to be the subject of the right of property.”
The test which the court then applied in determining whether the fugitive minerals, oil and gas, while running at large beneath the surface of the earth, could be the subject of private ownership, was the definition of ownership, substantially as it is written in the Civil Code of Louisiana (article 488), viz.:
“Ownership is the right by which a thing belongs to some one in particular, to the exclusion of all other persons.”
And the court concluded that mineral oil and gas, while running at large beneath the surface of the earth, did not, and in their very nature could not, except perhaps by a legislative fiction, “belong to some one in particular, to the exclusion of all other persons.” That, of course, is what “ownership” means universally. See Am. & E. Ene., and Bouvier, verbo “Ownership,” and Cyc. verbo “Owner.”
Applying that test, and reviewing the decisions of the Supreme Court of Indiana and of other states and of the United States, “without pausing to weigh the reasoning of the opinions of the Indiana court to ascertain whether they in every respect harmonized,” the court concluded that the decisions of the Indiana court were “in accord with the general law,” and settled the rule of property in the state of Indiana to be as follows:
“Although in virtue of his proprietorship the owner of the surface may bore wells for the purpose of extracting natural gas and oil, until these substances are actually reduced by him to possession, he has no title whatever to them as owner. That is, ho has the exclusive right on his own land to seek to acquire them, but they do not become his property until the effort has resulted in dominion and control by actual possession. It is also clear from the Indiana cases cited that, in the absence of regulation by law, every owner of the surface within a gas field may prosecute his efforts and may reduce to possession all or every part, if possible, of the deposits without violating the rights of the other surface owners.”
The decisions of this court are also “in accord with the general law” that the fugitive minerals, oil and gas, while at large beneath the surface of the earth, are not, and in their very nature cannot be, the subject of private ownership, as defined in the Civil Code.
The question was first presented to this court in the case of Wadkins v. Atlanta & Shreveport Oil Company, No. 19315 (decided in 1913); and it was held, in an opinion written by the then Chief Justice and concurred in by the present Chief Justice and one of the present Associate Justices, that the reservation of the oil, gas and mineral deposits, in an act of sale of the land, was the reservation, not of the ownership of the mineral oil and gas themselves, but of a servitude or real right upon the land, in favor of the seller of the land, and that the servitude was lost by .the prescription of 10 years. The decision was not published officially, because a rehearing was granted, .and while pending on rehearing the suit was settled by agreement of the parties. The decision, however, has been cited with approval, and as authority, by this court several times, and has never been overruled or disapproved.
In the case of Rives v. Gulf Refining Co., 133 La. 178, 62 South. 623, citing Wadkins v. Atlanta & Shreveport Oil & Gas Co., and decisions of the courts of other states, in support of the proposition, it was said:
“Oil and gas while in the earth are not the [771]*771subject of ownership distinct from the soil; and a grant of the oil and gas therefore is- a grant, not of the oil or gas that is in the ground, but of such part as the grantee may find, and passes nothing except the right to explore for the same under the terms of such contract.”
In the case of Cooke v. Gulf Refining Co., 135 La. 616, 65 South. 758, it was said:
“That oil and gas in their natural state, under the surface of the ground, are not owned by the owner of the land, is held in a long line of decisions. Wadkins v. Atlanta & Shreveport Oil & Gas Co. (No. 19315, not for publication); Rives v. Gulf Refining Co., 133 La. 178, 62 South. 623; Ohio Oil Co. v. Indiana, 177 U. S. 190, 20 Sup. Ct. 576. 44 L. Ed. 729; Brown v. Spilman, 155 U. S. 665, 15 Sup. Ct. 245, 39 L. Ed. 304; Westmoreland Co. v. De Witt, 130 Pa. 235, 18 Atl. 724, 5 L. R. A. 731.”
The doctrine stated in Rives v. Gulf Refining Co., 133 La. 178, 62 South. 623, that oil and gas beneath the surface of the earth are not subject to private ownership, was quoted again with approval in Elder v. Ellerbe, 135 La. 995, 66 South. 337.
In the case of Strother v. Mangham, 138 La. 437, 70 South. 426, it was held that a contract of sale purporting to “grant, bargain, sell, convey and deliver all of thé qil and gas” under a tract of land belonging to the vendor and described in the deed, conveyed, not the oil and gas themselves, but only “the right to the oil and gas that might be found and reduced to possession.” The vendor in that case brought suit to annul the contract of sale, alleging that the oil and gas beneath the surface of the land were not susceptible of ownership separate and apart from the land itself. Admitting the- correctness of the plaintiff’s contention, but denying the consequence claimed, this court said;
“The doctrine that the owner of the land has no property right in the oil and gas beneath the surface until he has reduced it to possession in no manner denies to such owner the exclusive right to the use of the surface for the purposes of such reduction, or for any other purpose not prohibited by law, but, to the contrary, concedes that right, as inherent in the title to the land, and subject only to the control of the state, in the exercise of its police power; and the right may be sold, as may any other right, and may carry with it the right to the oil and gas that may be found and reduced to possession.”
In Strother v. Mangham, supra, the court again cited with approval the decision in Rives v. Gulf Refining Co. and Ohio Oil Co. v. Indiana, in support of the doctrine that a contract purporting to sell the oil and gas beneath the surface of the earth conveys, not ownership of the oil and gas themselves, but only a real right upon the land, to explore and drill for oil and gas, and to become the owner of the oil and gas that may be found and reduced to possession.
In Saunders v. Busch-Everett Co., 138 La. 1060, 71 South. 163, the Chief Justice, for the court, affirmed the doctrine of all preceding cases in these vigorous terms, viz.:
“It has been held by this court, after mature deliberation (and we find no reason for changing our opinion), that:
“ ‘Oil and gas while in the earth are not the subject of, ownership distinct from the soil; and the grant of the oil and gas therefore is a grant, not of the oil or gas that is in ground, but of such part as the grantee may find, and passes nothing except the right to explore for the same under the terms of such contract.’ Rives et al. v. Gulf Refining Co. of La., 133 La. 178, 62 South. 623.
“In the more recent case of Strother v. Mangham, 70 South. 426, ante, p. 437, No. 21436 of the docket of this court, it was said:
“ ‘The doctrine that the owner of the land has no property right in the oil or gas beneath the surface until he has reduced it to possession in no manner denies to such owner the exclusive right to the use of the surface for the purposes of such reduction, or for any other purpose not prohibited by law, but, to the contrary, concedes that right, as inherent in the title to the land, and subject only to the control of the state, in the exercise of its police power; and the right may be sold, as may be any other right, and may carry with it the right to the oil and gas that may be found and reduced to possession.’ ”
In the case of Hanby v. Texas Company, 140 La. 194, 72 South. 933, it was held that [773]*773a sale of an Interest in the oil and gas beneath the surface of a particular tract of land conveyed no title to the oil or gas, but conveyed merely the right to make use of the surface of the land for the reduction to possession of the oil and gas that might be found; and that the reason why the oil and gas themselves could not be sold by the owner of the land was that he himself had not ownership of the oil and gas, but had merely the right to bore and explore for oil and gas and to become the owner of, by reducing to possession, such oil and gas as might be found.
In the case of Higgins Oil & Fuel Co. v. Guaranty Oil Co., 145 La. 233, 82 South. 206, 5 A. L. R. 411, it was said:
“An owner of land does not own the fugitive oil beneath it, and cannot complain that it is being drawn off by a pump sunk by an adjoining landowner.”
The appellees here rely upon some rather loose expressions found in the opinion in the case of De Moss v. Sample, 143 La. 243, 78 South. 482, and repeated in the opinion in Calhoun v. Ardis, 144 La. 311, 80 South. 548; in which cases, there being no contention that the fugitive minerals, oil and gas, were subject to private ownership, the court used the expression “minerals” as if it were synonymous with “mineral rights.” But the question of the right of ownership of mineral oil and gas not reduced to possession was not decided in either of those cases; and it could not have been decided, because it was not an issue in either case. In each case the question was, simply and solely, whether a grantor of land could validly reserve to himself the mineral rights, not whether the grantor of the land could reserve absolute ownership of the fugitive minerals, oil and gas, or could reserve only a real right with regard to those minerals.
In the De Moss Case the reservation made by the grantor of the land was of “the oil, gas and mineral rights in and to the said described property, with the right of ingress and egress,” etc. It was not decided, nor contended, for that matter, that the words “oil” and “gas” were not, like the word “mineral,” mere adjectives, describing the “rights” that were reserved by the grantor of the land.
In the Calhoun Case, the grantor of the land had merely reserved “all the mineral rights under said property and with the right to enter upon said property for the development of same.” Hence it could not have been decided, nor contended with reason, that the grantor of the land had reserved the ownership of the fugitive minerals, oil and gas. The only issue that was presented in that case was stated in the opinion thus:
“Plaintiff states that there was no consideration passed from Ardis to himself for the mineral rights which the former retained under the cited clause in the act of sale.”
There is therefore nothing in the opinion or decision in De Moss v. Sample or in Calhoun v. Ardis in conflict with the decisions heretofore cited, holding that the fugitive minerals, oil and gas, while at large beneath the surface of the earth, are not subject to private ownership.
Counsel for appellees argue that a contract purporting to sell or reserve the oil or gas beneath the surface of a tract of land cannot be construed as creating a real right upon the land, because, if so construed, it would create a servitude not in favor of another estate, but in favor of a person or corporation. The contention is that the Civil Code forbids the creation of any servitude upon an estate in favor of a person, excepting usufruct, use and habitation, which personal servitudes terminate at the death of the person in whose favor they have been established.
The argument is founded upon the first [775]*775paragraph of article 709 of the Civil Code, viz.:
“Owners have a right to establish on their estates, or in favor of their estates, such serv-itudes as they deem proper; provided, nevertheless, that the services be not imposed on the person or in favor of the person, but only on an estate or in favor of an estate.”
The language quoted can hardly be construed literally, for it will not do to say that the essential element of a servitude is that the services shall be imposed either “on an estate or in favor of an estate.” The obligation must be imposed on an estate, whether it be in favor of an estate or in favor of a person, for, if it be not imposed on an estate, it will not be a real obligation, and all servitudes are real obligations. What Is meant by the language of article 709 of the Code is that, in order to create a servitude, the obligation must be imposed upon an estate, not upon a person; that, to create a predial servitude, the obligation must be established also in favor of an estate; and that, in either case, the obligation of the owner of the servient estate shall not be an obligation to do anything, obligatio in fa-ciendo, but shall be merely an obligation to abstain from interference with-the obligee’s enjoyment of the servitude. We know, from, the history of the law, and the causes and incidents that brought about the adoption of the correspondíng article (6S6) of the French Code, that the purpose was to abolish the feudal system of binding the owner of an estate, by virtue of his ownership, to the performance of services to or in favor of another person or an estate. What is meant, therefore, by prohibiting the establishment of personal servitudes is that no obligation to perform a sendee shall be imposed upon a person; not that the servitude or real obligation may not be established in favor of a person’as well as in favor of an estate. That is probably the significance of the word “services,” in the Louisiana Code, in place of the original word “servitudes,” in the corresponding article (705) of the French text of the Code of 1820.
If the language of article 709 must be construed as having abolished all servitudes in favor of persons (excepting the lifetime usufruct, use and habitation), the abolishment was only of the name “servitude”; for there .are several articles of the Co(le that plainly recognize the validity of servitudes in favor of persons, all of which a.re of the one or another of the three sorts called usu-fruct, use and habitation, but ai’e not essentially life estates.
For example, article 648 declares;
“If then a stipulation be made * * * in favor of a person, and not in favor of an estate, the obligation will not be null on that account, but it will not create a real servitude.”
That does not mean that a stipulation of a servitude in favor of a person will not create a genuine servitude. It means that it will not create a real or predial or landed servitude, as defined in the preceding article (646), viz.;
“Real servitudes, which are also called pre-dial or landed servitudes, are those which the owner of an estate enjoys on a neighboring estate for the benefit of his own estate. They are called predial or landed servitudes, because, being established for the benefit of an estate, they are rather due to the estate than to the owner personally.”
. Surely, article 648, recognizing the validity of servitudes in favor of persons, does not refer to the lifetime usufruct or life estate, nor to use or habitation, all of which personal servitudes are treated of in another title of the Code, all to themselves; for there could not be any reason for affirming (in article 648) that the personal servitudes called usufruct, use and habitation are valid, notwithstanding they are not real servitudes.
It is true article 646 declares that personal servitudes terminate with the life of the person for whose benefit they are estah-[777]*777lished, and declares that that kind of servitude is of three sorts, usufruct, use and habitation. But that does not mean that a servitude cannot he established in favor of a person without the condition that it shall terminate at his death, constitute a life estate, and be governed, not by the stipulations of the contract, but by the general rules laid down with regard to usufruct, use and habitation. As a matter of fact, all servitudes in favor of persons are “of three sorts,” because every servitude in favor of a person except use and habitation, is a sort of usu-fruct.
While article 606, like article 646, declares that “the right of usufruct expires at the death of the usufructuary,” the next following article (607) declares that that is true only “if the contrary has not been expressly stipulated.” And so article 608 declares that the right of usufruct shall begin and end at the time stipulated, if a time be stipulated, in the title.
Article 538 of the Code defines usufruct as the right to enjoy the property of another “and to draw from the same all the profit, utility and advantages which it may produce, provided it be” — as to a perfect usu-fruct — “without altering the substance of the- thing.” But article 539 declares that the right of usufruct, i. e., the right to draw from the property all of the profit, utility and advantages which it may produce, may be limited or divided, or “be conferred on several persons in divided or undivided portions.” And article 542 goes so far as to say that—
A “usufruct may be established,, * * * in a word, under all such modifications as the person who gives such a right may be pleased to annex to it.”
Consonant therewith, article 657 says of servitude:
“Nothing prevents the advantage resulting from it from being divided, if it be susceptible of division; as, for example, the right of taking a certain number of loads of earth from the land of another, or of sending to pasture a certain number of animals on tbe land of another.”
Why may we not add the further example “of extracting the mineral oil and gas from the land of another”? Por article 2013 repeats :
“The real obligation, created by condition annexed to the alienation of real property, is susceptible of all the modifications that the will of the parties can suggest, except such as are forbidden by law.”
A right of way for operating a railroad or tramroad upon one estate for the benefit of another is a servitude (as was said in Coguenhem v. Trosclair, 137 La. 985, 69 South. 800); and such right of way may be granted as well in favor of a person or corporátion as in favor of a neighboring estate. As is said in article 648 of the Code, of course, “if then a stipulation be made * * * in favor of a person, and not in favor of an estate, the obligation will not be null on that account, but it will not create a real servitude,” or predial or landed servitude.
The right of a person to draw subterranean or mineral water by means of wells on the land of another person is a real right or real obligation, and is classified as a servitude. And we can see no difference, as far as legal principles go, between the right to take mineral water and the right to take mineral oil or gas from the land of a person other than the owner of such right.
Counsel for appellees lay great stress upon article 505 of the Civil Code, viz.:
“The ownership of the soil carries with it the ownership of all that is directly above and under it.
“The owner may make upon it all the plantations, and erect all the .buildings which he thinks proper, under the exceptions established in, the title: Of Servitudes.
“He may construct below the soil all manner of works, digging as deep as he deems convenient, and draw from them all the benefits which may accrue, under such modifications as may [779]*779result from the laws and regulations concerning mines and the laws and regulations of the police.”
But it would be choplogic to say that, as “the ownership of the, soil carries with it all that is directly above and under it,” therefore the ownership of the soil carries with it the ownership of things that are not otherwise susceptible of private ownership, provided they be above or under the soil. The last paragraph of article 505 indicates plainly, with regard to the fugitive minerals, oil and gas, and subterranean, water, that the ownership of the soil carries with it merely the right to “construct below the soil all manner of works, digging as deep as he (the owner of the soil) deems convenient, and to draw from them all the benefits which may accrue, under such modifications as may result from the laws and regulations concerning mines,” etc. In that sense alone (as was said in Brown v. Spilman, 155 U. S. 665, 15 Sup. Ct. 245, 39 L. Ed. 304, and repeated in Ohio Oil Co. v. Indiana, supra), it may be said that the ownership of the soil carries with it the fugitive minerals, oil and gas, and subterranean water, so long as they are directly under the surface of the soil. But, as was pointed out in Ohio Oil Co. v. Indiana, supra, ownership of the right to acquire the fugitive minerals, oil and gas, and subterranean water, must not be confused with the ownership of the fugitive oil or gas, or subterranean water, itself.
It might as well be argued that article 505 of the Code confers upon the owner of the surface of the soil ownership of the air and the clouds overhead and the rays of sunshine. The surface owner has the right to enjoy the air and sunshine above his land, to utilize the breezes to operate his windmills, and to appropriate to his own use the water that falls from the clouds. But, if he should sell the right to come upon his land and enjoy the air and sunshine, he could not add to or change the effect of the contract by I>retending to sell the air or the sunshine itself.
It is contended on behalf of the appellees, particularly by the attorneys who have appeared as amici curise, that, if oil and gas at large beneath the surface of the earth are not subject to private ownership apart from the land, taxes assessed against lands, and based upon their having, or being supposed to have, oil or gas beneath the surface, must be declared illegal. We have already approved the method of assessment of oil-bearing lands of adding to their agricultural or surface value their mineral value in proportion to the royalties being received by the owner. See Palmer Co. v. Police Jury, 142 La. 1080, 78 South. 123. In addition thereto, the state levies an annual license tax, or conservation tax, of one-half of 1 per cent, upon the gross value (excepting the royalty interest belonging to the owner of the land) of the production of oil, gas and other minerals, upon every person, firm, association or corporation engaged in the business of severing minerals from the soil. See Act No. 209 of 1912; State v. Stiles, 137 La. 540, 68 South 947. The Legislature has also authorized police juries to levy similar license taxes for the parishes. See Act No. 296 of 1914; Standard Oil Co. v. Police Jury, 140 La. 42, 72 South. 802. As far as we know, the state has never undertaken to assess for taxes, as property separate and apart from the land, oil or gas beneath the surface of any tract of land, or supposed to be there. The question whether the state has the right to levy such an assessment is not before us in this case.
[8] Our conclusion is that the reservation in the act of sale of their land by' Ernest N. Sailing and wife to E. W. and E. A. Erost created a real right, or servitude of the sort called usufruct, in favor of the grantors of the land, to enter upon the land and bore [781]*781and explore for and take away the oil and gas supposed to be under the surface of the land, and that the right that was thus reserved has been extinguished by the prescription by which servitudes are extinguished by nonuser for 10 years, according to articles 7S9, 3529, and 3546 of the Civil Code.
The judgments appealed from are therefore annulled; and it is now ordered, adjudged and decreed that the pleas of prescription of 10 years, filed by the plaintiff, Frost-Johnson Lumber Company, he, and the same are, sustained. It is therefore ordered, adjudged and decreed that the right and privilege reserved by Ernest N. Sailing and his wife, Lottie A. Sailing, to enter upon the lands they sold to E. AY. Frost and E. A. Frost, by the deed filed and recorded on the 9th of July, 1903, in Book of Conveyances No. 16, p. 506 et seq., in the office of the clerk of court and ex officio recorder of the parish of De Soto, be, and the said rights are, prescribed and lost as to the heirs and legal representatives pf the said Ernest N. Sailing and wife, both deceased, and their transferees, the Consolidated Petroleum Corporation, -of AYilmington, Del., T. J. Lawrence, of De Soto parish, La., and the Atlas Oil Company, of Chicago, Ill., in so far as said rights and privileges pertained to or affected any mineral oil or gas in or under the land so conveyed to E. AY. Frost and E. A. Frost. It is further ordered adjudged and decreed that the defendants, the heirs and legal representatives of the deceased Ernest N. Sailing and his deceased wife, and the Consolidated Petroleum Corporation and T. J. Lawrence and the Atlas Oil Company, shall pay the costs of these suits, respectively.
MONROE, C. J., dissents.
SOMMERVILLE, J., dissents.
PROVOSTY, J., concurs in the decree.