The opinion and decree in this case, in my humble judgment, is so fundamentally wrong and is such a break in the uniform jurisprudence of this state along several different lines that I feel compelled to give my reasons for dissenting.
First, it is wrong to apply prescription against a mere state agency administering for the state such governmental functions as are specially delegated to it by the state, when such prescription admittedly does not run against the state.
No authority is cited and none can be cited, and no logical reason is given and none can be given, to show that an action by an agent for and on behalf of his principal in a matter pertaining to the business of his principal is subject to prescription when the same action in the same matter by the principal would not prescribe.
The present court and its immediate predecessors have time and again declared that the levee boards are the mere agencies of the state, and that is conceded in the opinion handed down in this case.
In one of the recent cases it was said that these lands donated to the levee board for all intents and purposes remained the property of the state, and that the constitutional *Page 816 provision declaring that the state reserve the minerals in all sales of land was alike obligatory on the levee board.
If the state had leased these lands for one-eighth royalty, would any court have held that its right to sue for that royalty was prescribed in three years in view of the Constitution which declares that prescription shall not run against the state?
If the lands for all purposes remain the property of the state, and no prescription would run against the state if it had leased them, and if, as declared by this court, the obligation to reserve the minerals in case of the sale of the land is binding alike on both state and levee board, we are unable to perceive how a different rule can be applied to the levee board in matters of prescription growing out of the administration of the same lands than would be applied to the state under the same circumstances.
I cannot reconcile the ruling that the constitutional exemption of the state from prescription does not apply to the levee board in its dealings with the lands in question, as consistent with the holding that the levee board must observe and is bound by the constitutional restriction on the state in case of the sale of the lands.
Second. The decision is wrong in applying prescription by analogy in violation of the fundamental and inexorable rule that statutes of prescription are stricti juris and cannot be extended by analogy from one case to another.
This court has said in a number of cases that the right to drill for oil and gas is a servitude, subject to the prescription of ten years in case the privilege of drilling is not exercised within that period.
The authorities so holding are so well known and recognized as to need no special reference.
There is little or no analogy between a servitude and the ordinary contract of letting *Page 817 and hiring of an immovable. At least there is not sufficient analogy to justify the application of three years' prescription to a suit to recover the royalty realized under the contract of servitude, even should the court overrule the doctrine of nonapplication of prescription by analogy.
The effect of the decision in this case is, that if the grantee does not exercise his rights to drill under the contract within ten years, the contract is in law a servitude, and all rights thereunder are lost for nonuser, but, if the grantee does exercise his rights successfully, then the contract becomes under the law a lease, and the grantor must sue for his royalty within three years as under a contract for the hire of an immovable.
Third. The decision is wrong in holding that royalties under a mineral contract are fruits and revenues in the sense that they should be considered as rental for the exercise of the right of servitude of drilling for oil and other minerals.
In Elder v. Ellerbe, 135 La. 990, 66 So. 337, this court held that the bonus or royalty under an oil lease was not fruits and revenues.
And in Jackson v. Shaw, 151 La. 796, 92 So. 341, on rehearing, the court said:
"And the fact is that, even if he had possessed in legal as well as actual good faith, he still would owe this accounting; since oil and other minerals taken from the land by a possesser in good faith continue to belong to the owner of the land, and therefore must be restored to this owner along with the land — unlike in that respect to fruits, which pass into the ownership of the possessor in good faith as soon as reduced to possession."
In the contract of lease it was provided that, if oil is found in paying quantities, the oil company agrees to deliver free of charge to the said levee board one-eighth of all the oil produced from the wells. There was clearly no obligation on the part of the oil company to pay any money to the levee board as *Page 818 the price of the lease, but only one-eighth of the oil produced.
This royalty, when produced, belonged to the levee board, and the oil company became liable to the levee board, not for the price of the lease, but for what it had received for the oil belonging to the levee board, and which the company had converted to its own use. This suit is for the price of the oil received by the company for the one-eighth royalty.
I again say that it is wrong to apply the three years' prescription to such an action.
If the doctrine now laid down is adhered to, then, if a lessee of real estate under the share system sells his lessor's interest in the crop, the lessor must bring suit within three years, otherwise the right to recover the price of his own property illegally sold by his lessee is lost.
There is still another reason why the oil company should not be permitted to enrich itself at the expense of the levee board and be permitted to retain in its possession all of the oil received from the land it claimed to have leased from the levee board without the payment of one cent to the levee board. I have reference, of course, to the land on which the three wells were located.
The effect of the decisions in this litigation is to give to the Pure Oil Company all of the oil produced from the wells on the land which this court finally held was embraced in the lease of the levee board without paying said board one cent of royalty.
It must be observed that the oil in question was produced from wells located on lands which at the time were supposed to be leased from the government by Hanson and associates.
In other words, at the time the three wells were drilled, both the oil company and the levee board were ignorant of the fact that the land was not covered by the levee board lease to the oil company. All parties supposed *Page 819 or took it for granted that the three wells from which the oil in contest was produced were on lands covered by the Hanson lease. And for this reason the oil company did not pay the royalty over to the levee board.
It was not discovered that the wells were not on the government land until an investigation was had in the litigation in the federal court.
Thereafter the state sued for seven-eighths of the oil produced from the three wells on the theory that the land was not embraced in the levee board lease.
In that suit the levee board and the oil company made a common defense against the state — each claiming that the lands were covered by the lease, and each asked that, if the court should hold that the lands were not included in the lease, then that the lease be reformed, so as to include the said land.
In that suit the levee board demanded the $100 per acre, and the one-eighth royalty which it had not received because all parties supposed the oil had been produced under the Hanson lease.
The intervention of the levee board was dismissed as in case of nonsuit and thereafter the oil company was successful in having this court to decree that the land was covered by the levee board lease.
There can be no denial of the fact that the levee board demanded in that litigation that the lease be reformed so as to embrace the land in question, and that the levee board recover of the oil company the bonus of $100 per acre and the one-eighth royalty. There can be no denial that the oil company acquiesced in that claim of the levee board, thereby acknowledging that, if the lease was reformed, the oil company owed the bonus and the royalty to the levee board. In fact, the oil company in its answer alleged "that if as respondent believes and alleges the levee board was at the date of the lease the *Page 820 owner of more acreage, then upon successfully protecting respondent in possession of the entire acreage and quieting it in its title to the oil produced therefrom, the levee board is entitled to judgment upon the basis of the true acreage at the rate of $100."
The litigating was successful in protecting the oil company in its possession of the land under the lease, and the oil company therefore under its own judicial admission owes the levee board the amount it now claims in this suit.
All of this occurred within the year immediately preceding the filing of the present suit — that is to say, the judgment of this court reforming the lease as contended for by the levee board and the oil company was rendered within the year prior to the filing of the present suit — until which time it was not known whether the land was covered by the lease or not, and until which time it was not known whether the action against the oil company was in the levee board or in the state.
The defendant oil company having in common with the plaintiff levee board succeeded in having the lease reformed so as to embrace the land from which the oil in contest was produced, and having in that common fight against the state admitted judicially that, if the lease was so reformed, the oil company would owe the levee board the bonus and royalty, and, having paid the extra bonus after the lease was so reformed, we are unable to see upon what process of law or equity the oil company can now say that the levee board should have sued within three years after the oil was produced, when as a matter of fact it was not known in whom the right of action existed until so declared by this court on the demand of the levee board and the oil company.
I therefore dissent. *Page 821