Sanders v. Flowers

49 So. 2d 858, 218 La. 472, 1950 La. LEXIS 1094

• Court: Supreme Court of Louisiana
• Decided: November 6, 1950
• Docket: 39128
• Status: Published

Opinions

HAMITER, Justice.

In contest here is the ownership of one-half of the mineral rights in and to, as well as the validity of oil and gas leases affecting, a 20-acre tract of land in the Haynes-' ville Oil Field of Claiborne Parish described as the West Half of Southwest Quarter of Northeast Quarter (Wx/% of SW% of NEj4) of Section 21, Township 23 North, Range 8 West.

As owner and possessor of the described land W. R. Sanders instituted this slander of title action on May 17, 1946. He alleged that, without right or authority, the Ohio Oil Company is claiming oil, gas and mineral leases on the tract and that the other impleaded defendants are asserting ownership to one-half of the minerals underlying the property. In the petition plaintiff specially pleaded the prescription of ten years liberandi causa against the rights of the defendant mineral claimants, they being some of the persons who executed the aforementioned leases.

The defendants (two of whom were minors) answered, setting up titles to their respective claims and pleading particularly both suspension and interruption of prescription liberandi causa with respect to the mineral rights.

The case was .tried and submitted on a written stipulation of facts to which were annexed certain pertinent documents, including copies of Orders Nos. 35 and 35-5 • of the Commissioner of Conservation of Louisiana. After the submission, but before decision, plaintiff’s counsel filed (1) a plea of prescription of ten years acquirendi causa and (2) a plea of unconstitutionality of Act No. 157 of 1940 and of the above mentioned orders of the Conservation Commissioner. The statute and orders, attacked under the latter plea, are relied on by defendants for interrupting the running of the liberative prescription.

Ultimately the district court sustained the plea of prescription liberandi causa as to the mineral rights claimed by all of the defendants except the two minors. Accordingly it rendered judgment rejecting plaintiff’s demands as against the minors, but ordered cancelled and erased from the Conveyance Records of Claiborne Parish (insofar as the 20-acre tract is concerned) all deeds under which the other defendants were asserting ownership of mineral rights. The judgment further decreed a cancellation of the oil, gas and mineral leases (affecting plaintiff’s 20 acres) held by the defendant, Ohio Oil Company.

The defendants, except the minors, appealed suspensively and devolutively. Plaintiff appealed devolutively from that part of the judgment which rejected his demands.

The record, particularly the written stipulation of counsel, discloses the following factual situation. Plaintiff acquired the 20-acre tract of land (W% of SW% of NEJ4 of Section 21) from J. N. Bond under a deed dated January 28, 1930, as corrected by an instrument of date February 5, 1930 which recited: “It is specially understood by and between the vendor and vendee herein that all the oil, gas and other minerals, in, on and under and that may be produced is hereby reserved and excepted from this conveyance together with the rights of ingress and egress for the development thereof. This deed is made to correct that certain deed of date January 28, 1930, by and between the same parties herein wherein the reservation of oil, gas and other minerals was omitted and is made solely for the purpose of placing said reservation in said deed, otherwise the deed to remain as written.”

By mesne conveyances J. N. Bond (plaintiff’s author in title) had acquired from JR.. P. Bond.

Since his acquisition in 1930 plaintiff has been in the continuous possession of the land, and he has never executed an oil and gas lease or any other mineral contract affecting the property.

By a deed dated March 31, 1921, R. P. Bond sold unto T. A. Flowers one-half of the mineral rights in and under the SWJ4 of of Section 21, Township 23 North, Range 8 West, Claiborne Parish (this in•cludes plaintiff’s 20 acres). This sale established on the property the mineral •servitude (so termed by the jurisprudence •of this court and hereafter referred to as the Flowers servitude) which is in contest here. If the servitude is still effective it is owned by the following defendants in the .proportions set opposite their respective names:

T. A. Flowers 11/96

J. M. McCarty' 18/96

Mrs. Pauline Allen Barranger 2/96

Allan C. Jones (a minor born Decemcember 18, 1925) ■ ’ 2/96

Karl J. Jones (a minor born March 29, 1929) ' 2/96

E. F. Fincher, Trustee 9/96

Mrs. Carrie Inabett 4/96

The mentioned minors acquired their interests in the Flowers servitude by inheritance : one-half on November 24, 1937, and the remainder on October 11, 1943.

The written stipulation of counsel further discloses that during the year 1921 the Ohio Oil Company, under a valid lease then held by it, drilled several wells on the swy4 of NEJ4 of Section 21 (including plaintiff’s tract) to the Buckrange Sand and produced oil and gas therefrom continuously until December, 1931, when all production ceased. Thereafter, in May, 1934, the named lessee attempted without success to re-establish production from one of those wells by cleaning it out, installing certain equipment therein, and pumping it. No operations for the production of minerals from the W% of SWy4 of NEJ4, Section 21 (plaintiff’s 20-acre tract) have since taken place.

Between the years 1937 and 1942 the Ohio Oil Company acquired certain oil, gas and mineral leases on the SW)4' of NEy4 and the NWi/4 of NEJ4 of Section 21, Township '23 North, Range 8 West, they having been •executed by the several persons asserting interests in those tracts except plaintiff, and 'also except Mrs. Julia Dyer and Elizabeth Dyer who owned jointly a l/20th mineral interest in the of NWJ4 of NEJ4 of Section 21.

On January 17, 1942, operations were commenced by the Ohio Oil Company for the drilling of a well located in the approximate center of the NW% of NEJ4, Section 21, and on February 12, 1942, such well was completed in the Pettit Zone (a formation deeper than the Buckrange) as a producer of oil and gas. Continuously thereafter the well has produced in paying quantities.

Meanwhile, on February 6, 1942, the Commissioner of Conservation of the State of Louisiana, pursuant to the provisions of Act No. 157 of 1940 and following a hearing held before him on February 4, 1942, issued order No. 35 which announced special rules and regulations governing the exploration for and the production of oil and gas from the Pettit Zone of the Haynesville Oil Field in Claiborne Parish, including the unitization of all separate property interests within prescribed areas. This order, among other things, also- established drilling units of 80 acres, each composed of two adjacent 40-acre parcels running north and south and on which not more than one well could be drilled. Specifically the order stipulated that the WVá of the NE14 of Section 21 should constitute a production unit in accordance with the spacing pattern and that the well then being drilled in the NW% of the NE% of such section should serve that unit.

On March 17, 1942, the Commissioner of Conservation,- following a hearing held on that date, issued order No. 35-5 by which all separate tracts and all separately owned property interests embraced in W% of NEJ4 of Section 21 were pooled and unitized for the production of oil and gas from the Pettit Zone in said unit. The order further provided that such 80-acre tract, for all purposes of the leasehold contracts affecting it, shall be treated, developed and operated as one lease and one unit.

Plaintiff, W. R. Sanders, was not personally notified of any of the hearings from and upon which the said orders were issued, nor did he have any personal notice that the orders had been issued.

With this factual situation in mind we now consider the two matters presented by the appeals, they being plaintiff’s pleas respecting the disputed one-half mineral rights of (1) the prescription of ten years, acquirendi causa and (2) the prescription of ten years liberandi causa.

The first mentioned plea — that of the acquisitive prescription — was not discussed in the trial judge’s written reasons for judgment or mentioned in his formal decree^ Apparently it was impliedly overruled, however, for plaintiff’s demands as against the minors Karl J. Jones and Allan C. Jones were rejected; and since he has appealed from that part of the judgment so rejecting his demands the plea is properly before us.

To acquire ownership by the acquisitive prescription of ten years it is essential that certain conditions concur, principally among which are possession during the announced period, good faith on the part of the possessor, and. a title legal and sufficient to transfer the property. Civil Code, Article 3479. Assuming, but not holding, that this plaintiff had possession of the disputed minerals by reason of his ownership and occupancy of the land, it is certain that the other two essentials are not present. He is claiming under the deed from J. N. Bond of date January 28, 1930, as corrected eight days later (February 5, 1930) by an instrument (signed by him) excepting from the conveyance all of the oil, gas and other minerals in and under the land. This corrective instrument expressed and evidenced the original intention of the parties and was retroactively effective as of the date of the original deed. Union Sulphur Company, Inc. v. Lognion, 212 La. 632, 33 So.2d 178. In view of the provisions of his deed (as corrected) it cannot be correctly said that plaintiff possessed the minerals in good faith, actually and sincerely believing himself to be the owner thereof, or that he had a title then sufficient to transfer them. The acquisitive prescription plea, consequently, is without merit.

The cited case of Sample v. Whitaker, 174 La. 245, 140 So. 36, does not support plaintiff’s position. The deed therein excepted no minerals from the conveyance; rather, as pointed out in the opinion, it purported to convey the full ownership of the land and all of its appurtenances.

The liberative prescription of ten years for non-user, which is also pleaded, commenced running against the Flowers mineral servitude after plaintiff acquired the land. The commencement is fixed by him as of December, 1931, when production from the Buckrange Sand wells (located on the 20 acres) ceased; whereas defendants assert that it began in 1934 when the Ohio Oil Company cleaned one of those wells and sought to reestablish production therefrom. All agree, however, that a suspension of the prescription occurred in 1937 when the minors, Karl J. Jones and Allan C. Jones, inherited interests in the servitude. Furthermore, it appears to be conceded by all counsel that as to those minors the prescription was still suspended at the time of institution of this suit; but as to the major co-owners, they having failed to exercise their rights pursuant to the provisions of Act No. 232 of 1944, the liberative prescription has accrued unless the above described spacing and unitization orders of the Conservation Commissioner (Nos. 35 and 35-5), together with the drilling of the Pettit Zone well on the established 80-acre unit (plaintiff’s 20-acre tract is within the unit but on it the well was not drilled), constituted a user of the mineral servitude and served to interrupt the running of the prescription. Thus, plaintiff’s counsel, to quote from their brief, state: “This prescription began to run under the stipulation in December of 1931. Inasmuch as no well has ever been drilled upon the land in controversy it has continued to run against the majors owning all but 2/96 interest in the disputed servitude, unless the court holds that the drilling and production on the NWÍ4 of NE!/4 of Section 21 constitutes a user of the servitude on the W% of SWj4 of NEj¡4 of Section 21.”

And defense counsel comment: “It is submitted that under these circumstances, namely: that prior to the running of prescription on the mineral servitude on the tract involved in this case that tract was pooled and unitized in the eighty-acre unit, and that a producing well was drilled pursuant to such forced unitization of the Commissioner of Conservation, all pi'ior to the expiration of the running of the ten years liberative prescription, that that well and the production from it constitutes a continuous' interruption of the running of prescription against the servitude.”

In contending that the running of prescription was not so interrupted, plaintiff takes the position that since he was not personally notified of any hearings (the stipulation discloses this fact) upon which the Commissioner’s orders were issued such orders were ineffectual, null and void as to him and his land. He, in other words, attacks the proceedings of the Commissioner as divesting him of valuable property rights without due process of law.

Resisting, defense counsel urge that notice by publication, which the orders declare was given, fulfilled the requirements of Act No. 157 of 1940 and was sufficient to render the proceedings valid as to all interested persons.

The trial judge found merit in the position of plaintiff and held that, as to him, the proceedings and orders of the Commissioner were nullities and not binding. In part the judge commented: “Therefore, it is my opinion that W. R. Sanders, not having any notice or knowledge of the proceedings and actions taken relative to his land relative to pooling the same with other lands and not having consented thereto, is not bound thereby, and his rights are the same as if such proceedings had not taken place or such orders issued.”

It appears to us that before judicially determining the question of the validity of the mentioned proceedings and orders of the Commissioner of Conservation' — the question of paramount importance in deciding this dispute — that constitutional officer should be heard in defense of his actions. Here no such defense is- offered for the simple reason that he is not a party to this cause.

That the Commissioner will be vitally affected by a decision of the principal issue here there can be no doubt. For example, under the orders attacked only one well may be drilled on the 80-acre unit of which plaintiff’s tract is a part. If they be vitiated as to this plaintiff he could very well commence the drilling of a well on his 20-acre tract (a second well in the unit) contrary to the spacing requirements determined and fixed by the Commissioner pursuant to the authority and direction provided by Act No. 157 of 1940. The orders also might be ineffectual as to' numerous other landowners, situated similarly to plaintiff, for they relate to a great portion of the Haynesville Oil Field in Claiborne Parish. And being thus affected the Commissioner is a necessary party to this litigation. “It is elementary that every party who may be affected by a decree must be made a party to a suit, because no one should be condemned without a hearing.” Commercial National Bank in Shreveport v. Haas, 182 La. 502, 162 So. 57, 58; State ex rel. Woods v. Register of State Land Office, 189 La. 69, 179 So. 38.

It is to he noticed, incidentally, that Act No. 157 of 1940 contemplates- proceedings conducted contradictorily with the Commissioner of Conservation when his regulations or orders are assailed. Section 11 of the Statute makes provision for an injunction suit against that official under such circumstances and specifically sets forth the procedure to bg followed. It recites in part: “Any interested person adversely affected by any statute of this State with respect to conservation of oil or gas, or both, or by any provision of this Act, or by any rule, regulation or order -made by the Commissioner hereunder, or by any act done or threatened thereunder, and who has exhausted his administrative remedy, may obtain court review and seek relief by a suit for an injunction against the Commissioner as defendant, * *

It is true that the defendants did not file an exception of non-joinder, and they have not urged here that the Commissioner should be called upon to defend his orders. The court of its own motion, however, may take cognizance of the lack of a necessary party. Succession of Todd, 165 La. 453, 115 So. 653; De Hart v. Continental Land & Fur Co., Inc., 196 La. 701, 200 So. 9; Bologna Bros. v. Stephens, 206 La. 112, 18 So.2d 914; Douglas v. Haro, 214 La. 1099, 39 So.2d 744. See also Schaub v. O’Quin, 214 La. 424, 38 So.2d 63.

Our conclusion, therefore, is that plaintiff’s action, except as to the mentioned two minors, should be dismissed as of non-suit. With a decree of that character he will be permitted to pursue further litigation consistent with the views herein expressed..

For the reasons assigned the judgment of the district court is affirmed insofar as it rejects plaintiff’s demands against Karl J. Jones and Allan C. Jones. Otherwise, the judgment is reversed and set aside and plaintiff’s action is dismissed as of non-suit at his costs.