In our original opinion we stated the pertinent facts connected with this case. We shall not restate them here further than to say that, when Aristile Achee purchased the tract of land from LeBlanc, nothing was said about the servitude then owned by Albert Caillouet, ancestor of defendants. Caillouet was a former owner of the land. On March 7, 1917, he sold it to Paul LeBlanc, and in the act of sale it was stipulated that the vendor reserved an undivided one-half of the minerals in, upon, and below the surface of the property sold.
It is conceded that a mineral reservation of this kind is, under the settled jurisprudence of this state, in the nature of a servitude on the land and that such servitudes prescribe, or expire by limitation, in 10 years if not used. It is conceded also that neither Albert Caillouet nor anyone else made use of this servitude at any time during the 10-year period immediately following the date of its creation on March 7, 1917.
Plaintiffs' suit to cancel the servitude was grounded upon the proposition or theory that, because it was not used, the servitude prescribed, or expired by limitation, on March 7, 1927 — the end of the 10-year period immediately following the date of its creation on March 7, 1917.
Defendants concede that the hypothesis on which plaintiffs base their suit is well founded in law. But they set up and rely on the defense that the servitude did not prescribe or cease to have legal existence *Page 324 on March 7, 1927, as alleged and contended by plaintiffs, because the running of prescription in favor of the plaintiff landowner was interrupted on March 28, 1924, when he and Albert Caillouet, the owner of the servitude, signed a mineral lease on the land in favor of Paul N. Cyr. The primary term of that lease was five years, the five-year period extending two years and 21 days beyond the end of the prescriptive period applicable to the servitude.
Counsel for defendants argue (1) that the lease dated March 28, 1924, signed by Achee, the landowner, and Caillouet, the owner of the servitude, shows on its face that it was a joint lease, the effect of which was to interrupt the 10-year prescription then running in favor of the landowner, and (2) that, because of the interruption thus brought about, Caillouet's servitude was created anew, was born again as of that date, and lived on for a period of 10 years from the date of the interruption; so that the end of the prescriptive period applicable to that servitude was not March 7, 1927, but March 28, 1934, or 10 years from the date on which the alleged interruption took place.
In their application for rehearing, counsel for defendants say that our original opinion and decree are erroneous because we erred (1) in failing to follow the ruling in Mulhern v. Hayne,171 La. 1003, 132 So. 659; (2) in considering the parol testimony offered by plaintiff tending to show that the mineral lease dated March 28, 1924, was not in the true sense a joint lease, and (3) in holding that the case of Bremer v. North Central Texas Oil Co., *Page 325 185 La. 917, 171 So. 75, supports the proposition that, in order to interrupt the running of the 10-year prescription applicable to mineral servitudes for non-user, there must be more than a bare acknowledgment of the rights of the owner of the servitude.
The facts relating to the execution of the mineral lease dated March 28, 1924, in favor of Paul N. Cyr, are stated in our original opinion. We held that, under the facts disclosed, it was not a joint lease. For the purpose of this opinion, we pretermit further discussion of that controverted point and assume, as counsel argue, that it was a joint lease and that Achee, the landowner, knew when he signed it that Caillouet then owned a mineral servitude on his land.
The question, then, is whether the execution of that lease had the effect of interrupting the running of the 10-year prescription applicable to the mineral servitude so as to keep the servitude in legal existence for 10 years from the date of the lease.
In order to show the interruption, counsel for defendants offered no evidence except the lease contract, which they filed. They argue that this court has definitely held that, when a landowner joins the owner of the servitude in a mineral lease, he thereby recognizes all of the rights of his co-lessor, and that such acknowledgment interrupts prescription, and that the effect of such interruption is to give the servitude new life for a period of 10 years dating from the day of acknowledgment.
In the case of Mulhern v. Hayne, supra, which is relied upon by counsel for defendants, *Page 326 there are expressions in the opinion which support their argument that the act of joining the owner of the servitude in a mineral lease is such an acknowledgment by the landowner of the rights of his co-lessor as to cause the 10-year prescription to run anew from the date of the acknowledgment. But those expressions are obiter dicta, because the court was not called upon to decide that point. The point was not raised, and, therefore, in so far as that case holds, or seems to hold, that this bare acknowledgment is such an interruption as to cause the prescription applicable to mineral servitudes to run anew from the date of acknowledgment, to that extent and in that respect the opinion goes beyond the issues raised and is not authority.
The facts in the Mulhern case were that on February 21, 1919, Mulhern, the plaintiff, purchased from Frank B. Hayne, Hugh E. Vincent, and Mrs. Nannie C. Vincent a certain tract of land, the vendors reserving to themselves a one-half interest in the minerals. In that case, as in this one, the servitude was not exercised, but on July 15, 1926, approximately seven years and five months after the date of its creation, and when the servitude had but two years and seven months to run, Mulhern, the landowner, joined the owners of the servitude in the execution of an oil and gas lease affecting the entire property, the primary term of the lease being five years. After the 10-year prescriptive period had expired, Mulhern, the landowner, brought suit to cancel the servitude on the ground that it had prescribed because of non-use during the prescriptive period, his contention *Page 327 being that the reserved rights had ceased to exist. He prayed for judgment "recognizing him as the sole owner, and entitled to the possession of all minerals, oil, and gas in and under the land described supra; ordering the recordation of said reserved rights expunged from the public record".
Defendants excepted to the petition on the ground that it did not disclose a cause or right of action. The exception was sustained by the trial court, plaintiff's suit was dismissed at his cost, and he appealed from the judgment. The judgment was affirmed by this court.
Clearly, the only question which the court had before it for decision in that case was whether Mulhern, the landowner, was entitled to judgment recognizing him to be the owner and entitled to possession of all the minerals in and under the land as of the date on which the suit was filed, and ordering the cancellation from the records of all evidence of the mineral servitude.
The court decided the issue raised by Mulhern adversely to his contentions. Under the facts disclosed by the record, the conclusion reached by the court was clearly correct. Two years and seven months before the expiration of the 10-year prescriptive period, Mulhern, the landowner, joined the owners of the servitude in the execution of a mineral lease covering the entire property, which lease, according to its terms, ran for a period of five years and to a date beyond the expiration of the 10-year prescriptive period. Despite this fact, and ignoring entirely the lease contract *Page 328 into which he had entered with the defendants in favor of the lessee, Mulhern sued to cancel the servitude, alleging that it had expired because of non-usage at the end of the prescriptive period.
The effect of a ruling in Mulhern's favor on the issue which he raised would have been to strike down the lease contract and utterly destroy the rights of his lessee. At the time the lease contract was made, the servitude had less than five years to run. But Mulhern agreed that the lease should run for five years. Mulhern owned only a one-half interest in the mineral rights, the other one-half interest being owned by the defendants. By joining the owners of the servitude in making the lease, Mulhern recognized and acknowledged their rights — made himself a party with them to a contract affecting the entire interest in the minerals for a period of time extending beyond the expiration of the 10-year prescriptive period applicable to mineral servitudes. That, in effect at least, was a representation to the lessee that it could with safety deal with his co-lessors regarding the interest in the minerals which he did not own. Mulhern could not say in one breath that his co-lessors had the right to join him in making a lease contract affecting the mineral rights in his land extending beyond the end of the 10-year prescriptive period, and in the next breath say that they had no such right. The court correctly held that Mulhern had no case.
Hayne and the two Vincents did not plead that the life of the servitude was extended for a period of 10 years from the *Page 329 date of the lease. All they did was to meet the issue raised by the plaintiff, and, deciding that issue, the court said [171 La. 1003, 132 So. 660]:
"Here the plaintiff, as the owner of one half of the minerals, joined the persons in whose favor the other half of said mineral rights had been reserved, in the execution of a lease, of all the oil and gas, to a third person, for a term of years extending beyond the prescriptive period, and to an indefinite future period, beyond that time, in the event oil or gas is produced from the leased land. By joining in this lease plaintiff thereby recognized all of the rights of his colessors, and he cannot escape the effect of his written acknowledgment, which, in our opinion, we must hold to be a interruption of the then accruing prescription."
Therein is found the ruling of the court on the one and only issue presented, which clearly was whether or not, at the time Mulhern filed his suit, the mineral servitude had prescribed.
It was definitely held that it had not, because Mulhern, by joining the owners of the servitude in a mineral lease affecting "all the oil and gas" for a term of years extending beyond the prescriptive period, had thereby acknowledged and recognized their rights, which acknowledgment indicated his intention to interrupt the running of prescription so as to make the lease effective.
The Mulhern case was decided in February, 1931. Since that time, several cases *Page 330 have been decided in which the Mulhern case was cited with approval. In Bremer v. North Central Texas Oil Co., 185 La. 917,171 So. 75, we said that the Mulhern case was decided right. What we meant was that the issue presented in that case was correctly decided. Counsel for defendants argue that, because the Mulhern case has not been overruled but on the contrary has been reaffirmed, this court is now definitely committed to the proposition that, when a landowner joins the owner of a servitude in the execution of a mineral lease like the one in the Mulhern case and the one in this case, he thereby makes such an acknowledgment of the rights of his co-lessor as to cause the prescription applicable to the mineral servitude to run anew from the date of the acknowledgment.
The error into which counsel have fallen arises (1) out of their mistake in believing that the Mulhern case is authority for that proposition, (2) in failing to observe that, in the Bremer case and others, we explained the theory on which the ruling in the Mulhern case was based, and (3) in overlooking the fact that it was held in at least five cases decided since the Mulhern case that an acknowledgment of the rights of the owner of the servitude does not interrupt the running of prescription so as to make it run anew unless the acknowledgment is made with the purpose and intention that it shall have that effect, and that such purpose and intention must clearly appear. *Page 331
In the Bremer case, explaining the theory on which the ruling in the Mulhern case was based, we said that Mulhern's joining the owners of the servitude in the execution of the oil and gas lease not only evidenced his intention of acknowledging their rights, but evidenced also his "consent that they have further time within which to exercise those rights". We said:
"Manifestly the life of the servitude had to be extended to make the five-year lease valid for that length of time." [185 La. 917, 171 So. 77.]
In other words, Mulhern, in order to make the five-year lease effective, had to agree that the course or running of prescription against his co-lessors' servitude be broken into or hindered and the life of it extended, because otherwise it would have expired prior to the end of the primary term of the lease.
As defined by Webster's New International Dictionary, the word "interrupt" means "To break into, or between; to stop or hinder by breaking in; to interfere with the course, current, or motion of". The word "interruption" means "Act of interrupting, or breaking in upon; state by being interrupted. * * * A breach or break, caused by the abrupt intervention of something foreign".
In those cases in which we said that the effect of the landowner's joining the owners of the servitude in making a mineral lease was to "interrupt" the running of prescription, we meant that the prescription was interrupted in the sense that it *Page 332 was broken into, hindered, or stopped, as defined in the dictionary, and not in the sense that the word is used in the Civil Code relating to the acknowledgment of a debt.
In Hightower et al v. Maritzky, et al., 194 La. 998,195 So. 518, 521, we said that it was explained in the Bremer case
"* * * that the decision in the Mulhern case was based upon the proposition that it was impossible for the landowner and the holder of the mineral rights to make a joint mineral lease of the land for a term extending beyond the expiration of the period of prescription without intending thereby to extend the remaining period of prescription."
A copy of the lease contract signed by Achee, the landowner, and Caillouet, the owner of the servitude, is in the record. It is not stated therein, nor do its terms indicate, that Achee intended that the 10-year prescription applicable to mineral servitudes should run anew from the date of the lease. Neither the servitude nor the manner in which Caillouet acquired an interest in the mineral rights is mentioned, so that there is no evidence that Achee intended that prescription run anew from the date of the lease, and, since there is none, we hold that it did not.
If, as argued by counsel for defendants, the Mulhern case supports the theory which they advance, then the case to that extent and in that respect has been repeatedly overruled by implication. It is utterly inconsistent and irreconcilable with the firmly established rule that a bare acknowledgment *Page 333 by the landowner of the existence of the mineral rights of another in his land does not interrupt the running of prescription in the sense that the prescription begins to run anew from the date of acknowledgment. To have that effect, the acknowledgment must be coupled with the purpose and intention that it shall have that effect, and such purpose and intention must be expressed in unmistakable terms. Frost Lumber Industries v. Union Power Co., 182 La. 439, 162 So. 37, and the cases therein cited; Bremer v. North Central Texas Oil Co., supra; Goldsmith v. McCoy, 190 La. 320, 182 So. 519; Vincent v. Bullock,192 La. 1, 187 So. 35; Daggett on Mineral Rights in Louisiana, Section 14, pp. 38-52; Hightower v. Maritzky, supra.
To hold that Achee's signing the lease contract evidenced a purpose and intention on his part so to interrupt prescription as to cause it to run anew for a full period of 10 years from the date of the lease would be contrary to reason. It was clearly against his interest to prolong the life of the servitude for that length of time. But it was to his interest to extend the remaining period of prescription so as to make the lease effective.
For the reasons assigned, our original judgment and decree are reinstated and made the final judgment and decree in this case.
O'NIELL, C.J., and LAND, J., absent.
FOURNET, J., concurs in the result. *Page 334