Ohio Oil Co. v. Ferguson

34 So. 2d 746, 213 La. 183, 1946 La. LEXIS 870

• Court: Supreme Court of Louisiana
• Decided: February 11, 1946
• Docket: No. 37548.
• Status: Published

Opinions

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This is concursus proceeding for the apportionment among several claimants of the proceeds of a one-eighth royalty interest in certain oil produced by the Ohio Oil Company as lessee of a tract of land in Claiborne Parish. Several of the parties to the proceeding have appealed from the judgment apportioning the fund among the claimants. Each appellant of course is complaining only of the part of the judgment that is adverse to his interest.

One of the appellants is the Toklan Royalty Corporation, whose one-fourth mineral interest in a 40-acre tract was held to have been extinguished by the prescription of 10 years liberandi causa. Mrs. Fannie W. Bond owns that 40-acre tract, described as the SE1/4 of NE1/4 of section 21 in T. 23 N., R. 8 W.; and as she owned it at the time of the expiration of the 10 years, the alleged prescription of the mineral interest of the Toklan Royalty Corporation was held to have inured to her benefit. She may be considered therefore as the appellee so far as the appeal of the Toklan Royalty Corporation is concerned.

The facts concerning that appeal are not disputed. On July 5, 1921, R. P. Bond, the ancestor in title of Mrs. Fannie W. Bond, sold to one S.C. Clark a one-fourth interest in the minerals in a tract of land containing 240 acres and described as S1/2 of NE1/4, W1/2 of SE1/4, and E1/2 of SW1/4 of Section 21 in T. 23 N., R. 8 W. The 240-acre tract therefore consists of six contiguous 40-acre subdivisions. As R. P. Bond was the owner of the entire 240 acres of land his sale of the one-fourth interest in the minerals to Clark created a mineral servitude on the whole tract. On July 19, 1921, Clark sold to I. R. Bordages the one-fourth mineral interest in the SE1/4 of NE1/4 of Section 21, retaining the one-fourth mineral interest in the remaining 200 acres. The Toklan Royalty Corporation acquired the one-fourth mineral interest in the SE1/4 of NE1/4 of Section 21 by mesne conveyances from I. R. Bordages. Drilling operations were had on that 40-acre tract and oil was produced therefrom until January 1929. The last well on that 40 acres was abandoned in March 1929. Drilling operations were continued however on the remaining 200 acres in which Clark had reserved the one-fourth mineral interest and oil was produced therefrom continously, so that it is not disputed that the mineral servitude which was created by the sale of the one-fourth mineral interest by Bond to Clark on July 5, 1921, was not extinguished by the prescription of 10 years so far as the servitude affected the 200 acres in which Clark retained his one-fourth mineral interest. The Toklan Royalty Corporation contends that the drilling operations and production that were had on the 200 acres in which Clark retained his one-fourth mineral interest prevented or suspended the prescription of the servitude not only on the 200 acres but also on the 40 acres on which the Toklan Royalty Corporation acquired the mineral servitude. The judge decided that the drilling operations and production of oil on the 200 acres in which Clark retained his one-fourth mineral interest did not prevent the running of prescription against the servitude on the 40 acres in which he sold his one-fourth mineral interest to Bordages, and in which the Toklan Royalty Corporation afterwards acquired the one-fourth mineral interest.

The judgment declaring that the mineral servitude which Clark sold to Bordages on July 19, 1921, and which was acquired afterwards by the Toklan Royalty Corporation, was extinguished by the prescription of 10 years is supported by the provisions of the second paragraph of article 803 of the Civil Code. The first paragraph of that article deals with predial servitudes, or real servitudes, that is to say, with servitudes due to an estate, or a tract of land, as distinguished from personal servitudes, or those which are due to persons. The first paragraph provides that if an estate to which a servitude is due and which is owned by two or more coproprietors, becomes divided by means of a partition, a proprietor who continues to use the servitude preserves his right to it, but those who do not continue to use it during the period required for prescription lose the right by prescription. The second paragraph of article 803 deals, specifically, with personal servitudes, or those which are due to persons. This paragraph declares: "If a servitude be due to several persons, but on different days, as the right of drawing water, he who does not exercise his right, loses it, and the estate subject to to the servitude becomes free from it, as respects him."

There is no difference, in the applicable principles of law, between a servitude which gives to two or more persons the right to draw water from the land of another and a servitude which gives to two or more persons the right to take the mineral oil or gas from the land of another. Nor is there any difference, in the applicable principles of law, between the dividing of the advantage of such a servitude by stipulating on what days each of the persons to whom the servitude is due may exercise his right, and dividing the advantage by stipulating the part of the land on which each of the persons to whom the servitude is due may exercise his right. Hence we may substitute, the words "mineral oil or gas" for the word "water", and substitute the words "different parts of the land" for the words "different days", and thus paraphrase the second paragraph of article 803 of the Civil Code, by saying that if a mineral servitude be due to two or more persons, but on different parts of the land that is subject to the servitude, he who does not exercise his right to explore for the oil, gas or other minerals in that part of the land on which he has the right loses it for nonuse for the period of 10 years, and the land subject to the servitude becomes free from it as respects him.

The argument of the Toklan Royalty Corporation is founded upon the doctrine of indivisibility of servitudes, and, specifically, upon article 656 of the Civil Code, which declares that the rights of servitude, considered in themselves, are not susceptible of division, either real or imaginary, because it is impossible that an estate should have upon another estate a part of a right of way, or of view, or any other right of servitude, and also that an estate be charged with part of a servitude. The provisions of this article are modified by the statement in the second paragraph thereof that the use of a right of servitude may be limited to certain days or hours. The doctrine of indivisibility of the so-called right of servitude is modified also by the provisions of article 657 of the Civil Code, where it is declared that although the right of servitude be indivisible, and must be established for the whole, and not for a part of it, nothing prevents the advantage resulting from it from being divided, if it be susceptible of division.

The decision in Spears v. Nesbitt et al., 197 La. 931,2 So.2d 650, is a precedent for the instant case. In the case cited the owner of a tract of land containing 120 acres and consisting of three 40-acre tracts in a horizontal row, being the N1/2 of the NW1/4 and the NW1/4 of the NE1/4 of a certain regular section, transferred a half interest in the oil, gas and other minerals in the land to one G. L. Shields, from whom the Trinity Royalty Company, one of the defendants in the suit, acquired title. Eight years afterwards on August 25, 1933 all of the landowners, and the owners of all of the mineral interests in each half of the whole section, including the Trinity Royalty Company, entered into two contracts of lease with one F. F. Meadows, one contract covering all of the W1/2 of the section and the other contract covering all of the E1/2 of the section. Of the 120-acre tract in which the Trinity Royalty Company owned the one-half mineral interest, two-thirds of the area, being the N1/2 of the NW1/4 of the section, was of course covered by the lease on the west half of the section, and one-third of the area, being the NW1/4 of the NE1/4 of the section, was covered by the lease on the E1/2 of the section. Each one of the contracts of lease contained a stipulation that all of the parties pooled their mineral interests for the purpose of developing the half-section as a unit, and were to receive royalties from any oil or gas produced from any part of the half-section covered by the lease, in the proportion which their respective mineral rights bore to the mineral rights in all of that half-section, and that drilling operations conducted on any part of the half-section should be considered as being conducted on all parts of that half-section. In fact it was stipulated that the lessee would not have entered into the contract if it did not include the so-called pooling agreement on the part of all parties owning mineral interests in the half-section. Within the five years primary term of the lease certain oil companies, having acquired the leases from Meadows, drilled a producing gas well on the west half of the section, but not on the N1/2 of the NW1/4, on which the Trinity Royalty Company owned the mineral servitude. There was no drilling done under the lease covering the E1/2 of the section. That lease was kept in force by the payment of the delay rentals until it terminated by expiration of the primary term of the lease. On March 23, 1940, the landowner sued to cancel the mineral servitude of the Trinity Royalty Company on the ground that it was extinguished by the prescription of 10 years, not only so far as it affected the 40 acres in the E1/2 of the section, being the NW1/4 of the NE1/4 thereof, but also so far as it affected the 80 acres in the W1/2 of the section, being the N1/2 of the NW1/4 thereof. The court held that the drilling operations on the W1/2 of the section, by the provisions of the contract of lease, interrupted the 10 years prescription and thereby prevented the loss of the Trinity Royalty Company's servitude on the 80 acres in the W1/2 of the section, notwithstanding the drilling operations on that half of the section were not conducted on any part of the 80 acres in which the Trinity Royalty Company owned the one-half mineral interest, or mineral servitude. That ruling was supported by the decision in a companion case. Robinson v. Horton,197 La. 919, 2 So.2d 647, and by the decision in Dobbins v. Hodges,208 La. 143, 23 So.2d 26, and by the decision in Jackson v. Hunt Oil Company, No. 37, 588, 208 La. 156, 23 So.2d 31.

But the court held, in Spears v. Nesbitt, that the drilling operations that were conducted under the lease covering the W1/2 of the section did not interrupt the prescription of 10 years which was running against the mineral servitude of the Trinity Royalty Company on the 40 acres in the E1/2 of the section, being the NW1/4 of the NE1/4 of the section, and hence that the mineral servitude of the Trinity Royalty Company on that 40-acre tract was lost by the prescription of 10 years for nonuse. In making this decision, with regard to the 40 acres in the E1/2 of the section, the court stated [197 La. 931.2 So.2d 654]:

"When the land owner (plaintiff's ancestor in title) and the defendant [Trinity Royalty Company] executed the two leases of August 25, 1933, dividing the acreage affected by the Trinity Company's servitude, they clearly indicated they did not intend to have the operations on either lease-block [on either half of the section] affect the rights of the land owner or the mineral owners under the other [lease block or half-section]. They in effect divided the company's [Trinity Royalty Company's] servitude into that acreage located in the western half and that located in the eastern half [of the section]."

It might be argued that the statement that the landowner and the Trinity Royalty Company, in effect, divided the company's servitude into the acreage located in the western half and that located in the eastern half of the section is not consistent with article 656 of the Civil Code, which declares that the rights of servitude, considered in themselves, are not susceptible of division, either real or imaginary. But, in the next article, 657, of the Civil Code, it is declared that although the right of servitude be indivisible, and must be established for the whole, not for a part, nothing prevents the advantage which results from the servitude from being divided, if it be susceptible of division. The statement, therefore, in the opinion in Spears v. Nesbitt, that the landowner and the owner of the mineral servitude, divided the servitude, means, obviously, according to articles 656 and 657 of the Civil Code, that the landowner and the owner of the servitude divided "the advantage resulting from" the servitude. There could be no objection, however, to the statement that the landowner and the owner of the servitude divided the servitude, by dividing the acreage on which it was imposed into that part located in the western half and that part located in the eastern half of the section. We say this because the only parties concerned in the matter of dividing the servitude, or the advantage of the servitude, were the landowner and the owner of the servitude, and certainly there is nothing so sacramental in the doctrine of indivisibility of servitudes as to prevent the division of a servitude "if it be susceptible of division" by agreement of all parties concerned. In the instant case the landowner was not a party to the sale made by Clark to Bordages on July 19, 1921, by which the mineral servitude, or "the advantage resulting from it", on the 240 acres of land, was divided between Clark and Bordages, by Clark's selling to Bordages his one-fourth mineral rights in a designated 40 acres of the land, and retaining his one-fourth mineral rights in the remaining 200 acres. But the fact that the landowner was not a party to that transaction does not distinguish the instant case from that of Spears v. Nesbitt, because the landowner in the instant case accepted the advantage of the division in response to this suit. In fact the division of the advantage of the servitude was a matter to which the landowner had no interest in objecting, because it was essentially advantageous to the landowner, in that it required each one of the owners of the servitude thereafter to develop that part of the land on which he acquired or retained the servitude, in order to prevent its being lost by the prescription of 10 years.

Another difference between the facts of the instant case and the facts in Spears v. Nesbitt is that in the instant case the drilling operations were continued on the 200 acres which formed a part of the original 240 acres, and on which Clark retained the mineral servitude; whereas, in Spears v. Nesbitt the drilling operations were not conducted on any part of the 120 acres on which the mineral servitude was imposed originally but were conducted on another part of the half-section in which 80 acres of the tract originally burdened with the servitude were located. That difference in the facts of the two cases does not distinguish them in principle, because in Spears v. Nesbitt the drilling operations were conducted on the half-section covered by the lease containing the stipulation that drilling on any part of the half-section should be considered as drilling on any and all other parts of that half-section, and because a part of the land burdened with the servitude was located in that half-section. According to the decisions which we have cited the drilling operations which were conducted on the W1/2 of the section, though not on the N1/2 of the NW1/4 thereof, had the same effect as if the drilling operations had been conducted on the N1/2 of the NW1/4 of the section. Robinson v. Horton, 197 La. 919, 2 So.2d 647; Dobbins v. Hodges, 208 La. 143, 23 So.2d 26; Jackson v. Hunt Oil Co., No. 37, 588, 208 La. 156, 23 So.2d 31.

The Toklan Royalty Corporation relies upon the doctrine, which is well recognized in our jurisprudence, that, where a mineral servitude is created upon a single tract of land by the sale of the mineral rights by the owner of the land, or by his selling the land and reserving the mineral rights, only one servitude is established on the whole tract, and drilling operations conducted upon any part of the land upon which the servitude is established will prevent the extinguishment of the servitude by prescription on any and all parts of the land subject to the servitude. The cases cited by the Toklan Royalty Corporation are Lee v. Giauque, 154 La. 491, 97 So. 669; Sample v. Whitaker,172 La. 722, 135 So. 38; Patton v. Frost Lumber Industries, Inc.,176 La. 916, 147 So. 33; Connell v. Muslow Oil Co., 186 La. 491,172 So. 763; Ohio Oil Co. v. Cox, 196 La. 193, 198 So. 902; Hodges v. Norton, 200 La. 614, 8 So.2d 618.

The facts in the cases cited are not like the instant case where the advantage of the servitude was divided, as it was by the sale by Clark of his mineral rights so far as they affected a part of the land on which the servitude was established.

For example, the case of Lee v. Giauque, 154 La. 491, 97 So. 669, is authority merely for the proposition that where the mineral rights are reserved on two or more separate tracts of land the effect is to establish as many servitudes as there are tracts of land, and the exercise of the right upon one of the tracts will prevent the right from being extinguished by prescription on that tract, but not on any noncontiguous tract of land.

Sample v. Whitaker is the first case in which the court held that a servitude, such as the right to explore for and reduce to possession the oil and gas or other minerals in the land of another, is indivisible, according to article 656 of the Civil Code, and hence that, if the prescription of 10 years by which servitudes are extinguished is suspended as to one of two or more co-owners of such a servitude, it is necessarily suspended as to all of the co-owners of the servitude. We have discussed and disposed of the subject of indivisibility of servitudes, as provided for in article 656, and the divisibility of the advantage of the right of servitude, as provided for in article 657. It was in Sample v. Whitaker that the court construed the word "coproprietors" as meaning not the coproprietors of the estate to which a predial servitude is due, but the coproprietors of the servitude itself, and hence construed article 802 as being applicable to a mineral servitude. So far as the decision in Sample v. Whitaker was applicable to a mineral servitude its effect has been destroyed by Act No. 232 of 1944. The doctrine of the case is not applicable to the instant case. In this case the question is whether a personal servitude, or "the advantage resulting from it", may be divided, with the consent or approval of all persons having any interest in the matter, "if it be susceptible of division". We have pointed out already that in this case the landowner, who was benefited, necessarily, by dividing of the advantage resulting from the servitude, accepted the advantage.

The decision in the case of Patton v. Frost Lumber Industries,176 La. 916, 147 So. 33, was that the owner of a mineral servitude could not be affected adversely, so far as the liberative prescription was concerned, by the sale by the landowner of numerous small parts of the land burdened with the servitude. The doctrine of that case is simply that the owner of a tract of land burdened with a mineral servitude cannot do anything to lessen the value of the servitude to its owner without his consent.

Connell v. Muslow Oil Company, 186 La. 491, 172 So. 763, is authority for the proposition only that, where the owners of the mineral rights in a tract of land were in possession of their mineral servitude by operating a producing oil well on a part of the land, a purchaser of the other part of the tract of land could not, by means of his possession of the surface of his part of the land for more than 10 years, acquire title by the prescription acquirendi causa to the mineral rights in the part of the land purchased and possessed by him. That decision has no application to the instant case.

In the case of Ohio Oil Co. v. Cox, 196 La. 193, 194,198 So. 902, the court merely repeated the holding in Sample v. Whitaker, that article 802 of the Civil Code was applicable to a personal servitude, and hence to a mineral servitude, and that where one of several co-owners of such a servitude on one and the same tract of land was a minor, against whom prescription could not run, the prescription was suspended as to all of the co-owners of the servitude.

In the case of Hodges v. Norton, 200 La. 614, 8 So.2d 618, the owners of a tract of land containing 440 acres, namely, Edmond W. Hodges and his wife, Augusta Ann Hodges, sold the land to Andrew J. Hodges, reserving to themselves one-half interest in the oil, gas and other minerals in and under the land. Thereafter Edmond W. Hodges died and was survived by his widow Augusta Ann Hodges, and their 10 children. The mineral interests in the land were then owned one-half by Andrew J. Hodges and the other one-half by Mrs. Augusta Ann Hodges and her 10 children; and the land itself was owned by Andrew J. Hodges. He and Mrs. Augusta Ann Hodges and her 10 children leased the 440 acres of land to R. D. Webb for the production of oil, gas and other minerals. Thereafter Mrs. Augusta Ann Hodges and her 10 children sold to J. A. Selby, Jr., an undivided one-fourth of the mineral interest in the 440 acres of land. Two days later Selby sold to R. W. Norton, from whom the defendants in the suit acquired title, the one-fourth interest in the minerals in 220 acres of the 440 acres and Selby retained his one-fourth mineral interest in the remaining 220 acres. Thereafter several producing wells were drilled under the lease which Mrs. Augusta Ann Hodges and her 10 children and Andrew J. Hodges had granted to R. D. Webb. These wells were drilled not on any part of the 220 acres in which Selby sold the mineral rights to Norton but on the remaining 220 acres in which Selby retained the one-fourth mineral interest, in which Mrs. Augusta Ann Hodges and her 10 children owned also the one-fourth mineral interest, and in which Andrew J. Hodges owned the one-half mineral interest. More than ten years having gone by, and Norton having died, A. J. Hodges, the landowner, sued the widow and daughter of Norton, to declare that the servitude was extinguished by prescription, so far as it affected 140 acres included in the 220 acres in which Selby had sold to Norton the one-fourth mineral interest. The defendants, widow and daughter of R. W. Norton, pleaded successfully that the prescription was suspended with respect to the one-fourth mineral interest of Norton in the 220 acres of land, by the drilling operations conducted on the 220 acres in which Selby had retained his one-fourth mineral interest. The decision is reconcilable with the judgment rendered in the instant case against the Toklan Royalty Corporation, by the fact that in Hodges v. Norton, Mrs. Augusta Ann Hodges and her 10 children, who were co-lessors with the landowner, Andrew J. Hodges, in the lease under which the drilling operations were conducted, retained a one-fourth mineral interest in the whole 440 acres conveyed by the original mineral servitude. In the instant case there was no such joint ownership of the mineral rights by Clark and the Toklan Royalty Corporation.

Counsel for Mrs. Fannie W. Bond rely upon article 798 of the Civil Code, which provides that, if the owner of a servitude has enjoyed a right less extensive than that which is given him by his title, the servitude, whatever be its nature, is reduced to that which is preserved by use or possession during the time necessary to establish prescription. That article, of course, is not to be construed so as to conflict with the rule, which is established by the jurisprudence, that where the owner of a mineral servitude on a single tract of land exercises his right by drilling on any part of the land he suspends prescription of the servitude as to all of the tract. But, when, as in this case, the owner of such a servitude disavows his intention or abandons his right to drill upon a specified part of the tract on which he owns the mineral servitude, article 798 is applicable. In such a case, the article is in harmony with the second paragraph of article 803 of the Civil Code.

Our conclusion is that the judgment appealed from, so far as it declares that the mineral interest of the Toklan Royalty Corporation in the 40 acres forming the SE1/4 of NE1/4 of Section 21, T. 23 N., R. 8 W., has been extinguished by the prescription of 10 years, is correct.

Two other parties to this proceeding, namely, L. E. and G. A. Davis, are appealing from the judgment declaring that their mineral servitude on the SE1/4 of NE1/4 of Section 21 was lost by the prescription of 10 years liberandi causa. Mrs. Fannie W. Bond was the owner of this 40-acre tract at the time when the 10 years expired and therefore got the benefit of the prescription. The servitude, consisting of a one-half mineral interest in the 40 acres, was sold by R. P. Bond to L. E. and G. A. Davis for $3,000, on April 2, 1921, when R. P. Bond owned the 40 acres. The last well on the tract was abandoned on March 7, 1929. Hence it is conceded that the servitude was lost by L. E. and G. A. Davis unless the prescription was suspended. They contend that the prescription was suspended when J. L. Bond, the husband of Fannie W. Bond, signed the pooled lease in favor of the Ohio Oil Company on April 5, 1937. At that time the SE1/4 of the NE1/4 of Section 21 stood of record in the name of Mrs. Fannie W. Bond, wife of J. L. Bond. L. E. and G. A. Davis claim that, notwithstanding the title to the land stood in the name of Mrs. Fannie W. Bond, the land actually belonged to the matrimonial community existing between her and J. L. Bond, and hence that his signing the pooling agreement had the same effect as if the title stood in his name. It appears that J. L. Bond sold the land to his father, R. P. Bond, on May 1, 1933, and that the latter sold the land to Mrs. Fannie W. Bond on September 1, 1933. L. E. and G. A. Davis contend that these sales were simulations. The court received evidence extensively, both documentary and oral evidence, on the question of simulation, and concluded that the sales were genuine. There is no good reason for taking issue with the judge on that conclusion of fact; the consequence of which is that the land became the separate property of Mrs. Fannie W. Bond by virtue of the sale made by her husband to his father and the sale made by the latter to Mrs. Fannie W. Bond. But the judge rested his opinion also upon article 2334 of the Civil Code, which, as amended by Act No. 170 of 1912 and Act No. 186 of 1920, provides that when title to community property stands of record in the name of the wife it cannot be mortgaged or sold by the husband without the written authority or consent of the wife. That article as amended has been construed to mean that the husband cannot alienate or otherwise encumber the property by any transaction without the authority or consent of his wife. Bywater v. Enderle, 175 La. 1098, 145 So. 118. We adhere to that interpretation of the statute and hence affirm the judgment that J. L. Bond could not, by signing the pooled lease in favor of the Ohio Oil Company on April 5, 1937, without his wife's authority or consent, extend the term of prescription, and thereby increase the burden of the servitude of L. E. and G. A. Davis on the land of Mrs. Fannie W. Bond.

What we have said in disposing of the mineral servitude which L. E. and G. A. Davis had on the SE1/4 of NE1/4 of Section 21 is applicable also to an appeal taken by two other parties to this proceeding, namely, C. E. Miller and Claud Beene, whose mineral servitude on the 20 acres described as S1/2 of NW1/4 of NE1/4 of Section 21 was adjudged extinguished by prescription. Miller and Beene acquired a one-fourth mineral interest in this 20-acre tract on July 9, 1921, from J. L. Bond, who was then the owner of the 20 acres of land. Miller and Beene urged the same defenses to the plea of prescription that were urged by L. E. and G. A. Davis. These defenses are not available to Miller and Beene any more than to L. E. and G. A. Davis. Miller and Beene urge a further defense to the plea of prescription that on April 15, 1942, Mrs. Fannie W. Bond and her husband J. L. Bond signed a pooling and unitization contract which recited that the Ohio Oil Company was the owner of the various leases affecting the W1/2 of the NE1/4 of Section 21, which contracts of lease were made a part of the pooling and unitization contract and incorporated therein by reference. It is contended by Miller and Beene that the signing of this pooling and unitization contract by Mrs. Fannie W. Bond and her husband, J. L. Bond, on April 15, 1942, was a ratification by her of the lease contract which had been signed by her husband on April 5, 1937. The answer to that contention is that on April 5, 1942, when Mrs. Fannie W. Bond and her husband signed the pooling and unitization agreement, the mineral servitude which Miller and Beene had acquired from J. L. Bond on July 9, 1921, on the S1/2 of NW1/4 of NE1/4 of Section 21, had been lost by prescription. The last producing well drilled on that 20 acres of land was abandoned in January or February 1929. In fact it is conceded by Miller and Beene, with reference to their mineral servitude, that the 10 years prescriptive period commenced not later than March 22, 1929. Our conclusion is that the judgment declaring that the Miller and Beene servitude on the S1/2 of the NW1/4 of NE1/4 of Section 21 was lost by prescription is correct.

An appeal from the judgment rendered in this case was taken also by J. N. Bond, individually and as tutor of his minor children, and by the widow and heirs of R. E. Bond. These appellants contend that the prescription which extinguished the several mineral servitudes which were adjudged lost by prescription inured to the benefit of all of the five children of R. P. Bond, including these appellants, and not exclusively to the benefit of Mrs. Fannie W. Bond and Mrs. Bertha Bond Kirkpatrick, who were, respectively, the owners of the lands which were relieved of the servitudes by prescription at the time when the 10 years expired. The appellants refer to the one-half mineral interest formerly owned by Gladney and Kendrick in the NE1/4 of NE1/4 of Section 21, and the one-half mineral interest of L. E. and G. A. Davis in the SE1/4 of the NE1/4 of the same section, and the one-fourth mineral interest formerly owned by the Toklan Royalty Corporation in the SE1/4 of the NE1/4 of Section 21. The land itself, forming the north 30 acres of this 80-acre tract, was owned by Mrs. Kirkpatrick, and the land forming the south 50 acres was owned by Mrs. Fannie W. Bond, at the time when the servitudes were extinguished by prescription. The judge of the district court sustained the contention of Mrs. Fannie W. Bond and Mrs. Bertha Bond Kirkpatrick that the prescription inured to their benefit by reason of their being, respectively, the owners of the land at the time when the 10 years expired. The facts on which these appellants, J. N. Bond, individually and as tutor, and the widow and heirs of R. E. Bond, base their claim that the prescription of these servitudes inured to the benefit of the five heirs of R. P. Bond, including the appellants, are as follows: R. P. Bond, being the owner of 320 acres of land, made numerous sales of mineral interests in the different portions of the land until he had disposed of all of his mineral rights in the 40 acres forming the NE1/4 of NE1/4 of Section 21 and all but the one-fourth mineral interest in the E1/2 of the SW1/4, W1/2 of SE1/4 and S1/2 of NE1/4 of Section 21. Thereafter R. P. Bond donated the land in indivision to his five children by a deed which made no reference to his previous sales of his mineral interests in the land. Four years later the children partitioned the land in kind by an instrument in which no mention was made of the outstanding mineral rights; but, thereafter, the five children signed an act amending or explaining the act of partition by declaring that it was made for the sole and only purpose of partitioning the surface rights, and that it was their intention not to divide the royalty interest. Thereafter the five children of R. P. Bond shared in the royalties paid for the oil produced from the wells which were then producing. The production of oil from the 40-acre tract on which all of the mineral rights had been sold by R. P. Bond, and the production from the adjoining 40-acre tract, owned by Mrs. Fannie W. Bond, ceased more than 10 years ago; as a result of which a one-half mineral interest owned by Gladney and Kendrick in the NE1/4 of NE1/4, and the one-half mineral interest of L. E. and G. A. Davis, and the one-fourth mineral interest of the Toklan Royalty Corporation, in the SE1/4 of NE1/4 of Section 21, prescribed. At that time the title to the north 30 acres of the 80 acres of land was in Mrs. Kirkpatrick, and the title to the south 50 acres was in Mrs. Fannie W. Bond, by virtue of the act of partition which had been amended. The argument of the appellants, J. N. Bond and others, is that the clause in the amending act, declaring the intention of the parties to be not to divide the royalty interest but to divide only the surface of the land, worked both ways; and that as all of the five heirs thereafter shared in the royalties from the producing wells they should share also in the benefit resulting to Mrs. Fannie W. Bond and Mrs. Kirkpatrick by the prescription of the servitudes of Gladney and Kendrick, of L. E. and G. A. Davis, and of the Toklan Royalty Corporation. We agree with the judge of the district court that there is nothing in the amendment of the act of partition to justify the conclusion that the intention of the parties was to deviate from the law by which the extinguishment of a mineral servitude by prescription inures to the benefit of the owner of the land at the time of the expiration of the 10 years. The reason why the extinguishment of the servitude inures to the owner of the land at the time when the servitude is extinguished is that the burden or obligation of a servitude is imposed only upon the land, and not upon any person; so that when the obligation is extinguished the extinguishment of it necessarily inures to the owner of the land at the time of the extinguishment. McDonald v. Richard,203 La. 155, 13 So.2d 712.

The judgment appealed from is affirmed. The costs of this concursus proceeding are to be paid out of the fund deposited in the registry of the court by the Ohio Oil Company.