Kalmn, Inc. v. Walker Louisiana Properties

488 So. 2d 340, 90 Oil & Gas Rep. 452, 1986 La. App. LEXIS 7001
CourtLouisiana Court of Appeal
DecidedMay 14, 1986
Docket85-452
StatusPublished
Cited by7 cases

This text of 488 So. 2d 340 (Kalmn, Inc. v. Walker Louisiana Properties) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kalmn, Inc. v. Walker Louisiana Properties, 488 So. 2d 340, 90 Oil & Gas Rep. 452, 1986 La. App. LEXIS 7001 (La. Ct. App. 1986).

Opinion

488 So.2d 340 (1986)

KALMN, INC., Plaintiff-Appellant,
v.
WALKER LOUISIANA PROPERTIES, et al., Defendants-Appellees.

No. 85-452.

Court of Appeal of Louisiana, Third Circuit.

May 14, 1986.

*341 Privat and Regan, Kenneth O. Privat, Crowley, for plaintiff-appellant.

Scofield, Bergstedt, Richard Gerard, Jr., Lake Charles, for defendants-appellees.

Before DOMENGEAUX and YELVERTON, JJ., and JACKSON, J. Pro Tem.[*]

ROBERT P. JACKSON, Judge Pro Tem.

This is a suit by plaintiff, Kalmn, Inc., against defendants, Walker Louisiana Properties, et al, seeking to cancel a one-half (½) mineral interest affecting certain property located in Jefferson Davis Parish, La, described as follows, to wit:

All of Section 12 and the East Half (E/2) of Section 11, Township 9 South, Range 5 West, La. Mer.

The facts have been agreed upon in stipulation.

On November 17, 1924, the Calcasieu National Bank of Southwest Louisiana sold the property in question to Rufus A. Estes, then married to and living with Goldie Wilson Estes, reserving an undivided 1/16th mineral interest.

On March 19, 1930, Rufus Estes, now divorced from Goldie Wilson Estes, in an instrument referred to as a "Sale" recognized, clarified and amended the prior mineral reservation to provide for an undivided one-half (½) mineral interest rather than the 1/16th mineral interest.

On January 14, 1935, Rufus Estes joined with the Trustees of the Calcasieu National Bank and Calcasieu Real Estate & Oil Company, Inc. in executing a mineral lease to Homer Tate for a primary term of three (3) years and ninety (90) days.

On December 5, 1942 Mrs. Goldie Todd, born Wilson, wife of John N. Todd, formerly wife of Rufus A. Estes, for a consideration of $500.00 and the assumption by Rufus A. Estes of certain community obligations, quitclaimed and renounced her interest in the subject property to Rufus A. Estes.

On December 15, 1942, Rufus A. Estes executed an authentic act described as an "acknowledgment."

The stipulation lists other instruments in the chain of title and facts relative to drilling operations and production on the property subsequent to December, 1942 to date. Suffice it to say that no landowner in the chain of title questioned the validity of the one-half (½) mineral interest presently owned by defendants until May 17, 1982 when the attorney for the plaintiff made a written demand by certified mail in accordance with LSA-R.S. 31:206 for a recordable instrument evidencing the extinguishment of the mineral interest.

The stipulated facts make it abundantly clear that unless the mineral interest prescribed prior to December 15, 1942, there has been sufficient user of the mineral servitude to interrupt the running of prescription and the mineral servitude would still be in existence.

A resolution of the question whether the mineral interest prescribed prior to 1942 turns on an interpretation of the instruments dated November 17, 1924, March 19, 1930 and January 14, 1935 (attached as Appendix A and Appendix B respectively). Even if the Court concludes that the mineral interest prescribed prior to the execution of the 1942 instrument this does not end the matter because defendants argue that the 1942 instrument can be construed to *342 have amounted to a sale and creation of a new mineral servitude commencing on December 15, 1942 even if the initial servitude had prescribed. Therefore, the legal effect of the December 15, 1942 (see infra at pages 7-8) instrument must be determined by the Court.

No mineral operations were conducted on the property between the date of purchase of Rufus A. Estes on November 17, 1924, and February 2, 1947 when the Continental No. 1 R.A. Estes Well was drilled.

In 1982 plaintiff Kalmn, Inc. filed an action to cancel the mineral servitude held by defendants Walker Louisiana Properties, AA Development Corporation, Globe— Texas Company, Calcasieu Real Estate & Oil Company, Inc. and Tenneco Oil Company. In 1984 plaintiff moved for a Summary Judgment and a year later defendant Walker Properties filed a peremptory exception alleging prescription. Copious exhibits supporting both motions were filed in support. The lower court rendered its opinion on March 25, 1985. Judge William N. Knight, of the Thirty-First Judicial District, dismissed plaintiff's suit and denied defendants' Exception of Prescription, to which rulings the respective parties appeal.

In a well-reasoned opinion, the lower court succinctly defines the issues:

"It is the contention of plaintiff that the mineral servitude expired on November 17, 1934. Plaintiff says that the March 19, 1930 instrument was merely a correction instrument which relates back to the date of the sale, namely, November 17, 1924, Blevins v. Manufacturers Record Publishing Company, [235 La. 708], 105 So.2d 392 (La.1957), and since there was no drilling operations on the property during the ten (10) year period of time the mineral servitude prescribed on November 17, 1934. Plaintiff also contends that the December 15, 1942 instrument was only intended as an acknowledgment and interruption of prescription and since prescription once accrued cannot be interrupted, the instrument can have no legal effect since the servitude had become extinguished on November 17, 1934. Wise v. Watkins [222 La. 493], 62 So.2d 653 (La.1953). A servitude once extinguished can only be re-established by title. Lastly, plaintiff contends that the instruments dated March 19, 1930 and January 14, 1935 can only have legal effect as to Rufus A. Estes since when he acquired title to the property in 1924 he was married to Goldie Wilson Estes, making the purchase community property, and when he executed the 1930 and 1935 instruments he was previously divorced from her on October 23, 1928.

"Defendants have filed an exception of prescription contending that the plaintiff's attack on defendants' title to one-half (½) of the mineral rights constitutes an action in nullity which is prescribed under the ten (10) year prescriptive period of Louisiana Civil Code, Article 2221. Alternatively, they assert that the March 19, 1930 instrument and the 1935 Homer Tate Lease amounted to an acknowledgement and interruption of prescription and, therefore, the servitude was still in existence at the time the parties executed the December 15, 1942 instrument. Finally, that the 1942 act itself was sufficient to create a new mineral servitude with prescription commencing on the date of the act, even if the initial servitude had prescribed.

"The Court finds no merit to this contention. On December 5, 1942, Mrs. Goldie Todd, born Wilson, for valid consideration quitclaimed and renounced her interest in the subject property to her former husband, Rufus A. Estes. The Doctrine of After Acquired Title would cure her failure to execute the previous instruments which she did not join in.

"The Court finds no merit to defendant['s] exception of prescription. This is not a suit seeking to nullify or rescind an agreement or contract. This is a suit seeking to cancel a mineral interest which plaintiff contends expired for non-use in 1934. If they are correct, then the mineral interest prescribed and became non-existant. The landowner at the time would have benefited from this non-use of the mineral servitude and become the owner of the land *343 and expired mineral interest. There is a strong public policy in Louisiana against mineral servitudes existing longer than ten (10) years unless the prescriptive period is interrupted by acknowledgment or user.

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Bluebook (online)
488 So. 2d 340, 90 Oil & Gas Rep. 452, 1986 La. App. LEXIS 7001, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kalmn-inc-v-walker-louisiana-properties-lactapp-1986.