The facts of this case are stated in our original opinion. But for convenience we shall restate them briefly.
On February 6, 1917, Hunter and McCormick purchased the Scale Plantation in the parish of Ouachita. On July 14, 1917, they granted to Producers' Oil Company a mineral lease on five noncontiguous parcels of the plantation, covering an area of 929.50 acres. On October 24, 1917, Hunter and McCormick sold 1,916.73 acres, including the five tracts leased to the Producers' Oil Company, to Shackelford, Brown, and Irvine, reserving in *Page 1070 the deed the minerals under the surface of the land. On May 19, 1919, Shackelford, Brown, and Irvine sold the land, subject to the prior mineral reservation in favor of their vendors, to Coleman. On June 2, 1919, Coleman sold the property, subject to the same mineral reservation, to Abe Arent, plaintiff herein.
The lease by Hunter and McCormick to the Producers' Oil Company was assigned on February 21, 1918, to the Texas Company, and on July 30, 1926, was assigned by the Texas Company to Interstate Natural Gas Company, Inc., so far as the gas and gas rights are concerned.
Subsequent to his purchase from Coleman, namely, on June 15, 1923, Arent purchased from Hunter and McCormick the mineral rights on 987.26, acres of the Seale Plantation, which acreage was separate and distinct from the 929.50 acres burdened with the mineral lease of the Producers' Oil Company. On August 4, 1924, Arent sold to S.D. Hunter, individually, an undivided one-half interest in the mineral rights which he had purchased from Hunter and McCormick, and on June 2, 1925, Arent and Hunter effected a partition in kind of these mineral rights, each taking the mineral rights on 493.13 acres of land. On November 25, 1924, Guy O. Barr, who had acquired title to lots 1 and 2 of the Seale Plantation sold to Arent, the mineral rights thereon, part of which were included in the mineral lease of the Producers' Oil Company.
The Texas Company drilled a producing gas well in the southeast corner of the northern 300 acres of section 45, township 19 north, range 3 east, which well was completed on September 28, 1918, and immediately capped. No gas was withdrawn from this well until January 15, 1928, on which date production was begun and continued therefrom up to the *Page 1071 filing of this suit. Subsequent to the filing of the suit four other wells were begun on the other parcels of land covered by the lease to the Producers' Oil Company.
On September 30, 1924, Hunter and McCormick entered into a contract with the Texas Company amending the mineral lease, and on June 6, 1927, Hunter and McCormick entered into an agreement with the Interstate Natural Gas Company, Inc., further amending the lease.
The judgment of the court below was in favor of plaintiff and against all the defendants, maintaining plaintiff's plea of prescription of ten years liberandi causa, ordering the cancellation of the inscriptions of the instruments referred to in the petition, as to all the land involved in the suit except the north 300 acres of section 45, township 19 north, range 3 east, as to which it was ordered that the grant of July 14, 1917, to Producers' Oil Company be recognized subject to the royalties therein provided, which were adjudged to belong to Hunter and McCormick. All the defendants, except the Producers' Oil Company, appealed; and plaintiff answered the appeal praying for an amendment of the judgment.
Though the defendants, in argument, question plaintiff's right to institute a jactitation suit, especially with reference to the mineral rights on the Barr tract, no exception or plea to that effect was filed by the defendants. The case was tried and decided on its merits. The issues thus disposed of arose under plaintiff's claim of ownership of mineral rights in lands owned by him and by Guy J. Barr, and his demand that the inscription of certain instruments placed of record by defendants be canceled because they affected and clouded his title, and his claim that such title as defendants might have had in the mineral rights had been lost by the prescription of ten *Page 1072 years liberandi causa. And defendants contend that they, and not plaintiff, own the mineral rights referred to, by virtue of the very instruments of which plaintiff complains, and by their claim that the plea of prescription pleaded by plaintiff was interrupted and their rights on the land preserved by the drilling of a gas well and the withdrawing of gas therefrom; and by the reservation and acknowledgment of defendants' mineral rights.
Under these circumstances we do not think defendants are in a position to question either the substance or the form of plaintiff's action.
It is a well-settled rule of law, under our jurisprudence, that a grant or reservation of minerals in place is not a grant or reservation of any specific corporeal thing, but only a grant or reservation of the right to extract minerals from the soil and appropriate them when so extracted; that is to say, the grant or reservation of an incorporeal right in the nature of a servitude, and not of a corporeal estate. See Logan v. State Gravel Co.,158 La. 105, 103 So. 526. Thus, a mineral lease conveys to the lessee nothing more than a servitude upon the lands covered thereby. Exchange National Bank v. Head, 155 La. 309, 99 So. 272; Vander Sluys v. Finfrock, 158 La. 175, 103 So. 730; Wiley v. Davis,164 La. 1090, 115 So. 280. And the reservation by a vendor, in conveying land, of the right to exploit the land for minerals, is the retaining of a servitude on the land for that purpose. La Del Oil Properties v. Magnolia Petroleum Co., 169 La. 1137,126 So. 684; Keebler v. Seubert, 167 La. 901, 120 So. 591; Lee v. Giauque, 154 La. 491, 97 So. 669; Wemple v. Nabors Oil Co.,154 La. 483, 97 So. 666; Frost-Johnson Lumber Co. v. Salling's Heirs,150 La. 756, 91 So. 207, 209.
The servitude, whether it be created by a grant or by a reservation, is lost or extinguished *Page 1073 by nonuser, if not exercised within ten years. Vander Sluys v. Finfrock, supra; Exchange National Bank v. Head, supra; Wemple v. Nabors Oil Gas Co., supra; Lieber v. Ouachita Natural Gas Oil Co., 153 La. 160, 95 So., 538; Sellington v. Producers' Oil Co.,152 La. 81, 92 So. 742; Nabors Oil Gas Co. v. Louisiana Refining Co., 151 La. 361, 91 So. 765; Frost-Johnson Lumber Co. v. Salling's Heirs, supra.
Hence the only right granted by Hunter and McCormick in the lease to the Producers' Oil Company and in the act of sale to Shackelford, Brown, and Irvine, was the right to extract the minerals from the soil and reduce them to possession; which right was subject to extinguishment by the prescription of ten years libarandi causa.
The sole question to be determined, therefore, is whether the prescription pleaded by plaintiff has been interrupted so as to preserve defendants' rights as alleged by them.
Defendants contend there are three reasons why they have not lost their mineral rights by the prescription of ten years liberandi causa, viz.:
First, that the prescription was interrupted by the drilling of the Texas Company's well in section 45, completed and capped on September 28, 1918, from which gas was withdrawn on for the first time on January 15, 1928, whereby the servitude on the entire Seale Plantation, the mineral rights on which were reserved by Hunter and McCormick in the sale to Shackelford, Brown, and Irvine, on October 24, 1917, was exercised.
Second, that the prescription was interrupted by the reservation and exclusion of the minerals and mineral rights and the written acknowledgment of Hunter and McCormick's ownership thereof in the deed whereby Coleman purchased the Seale Plantation from *Page 1074 Shackelford, Brown, and Irvine (the vendees of Hunter and McCormick) and in the deed whereby Coleman sold the property to the plaintiff, Arent.
Third, that the sale by Hunter and McCormick to plaintiff, Arent, of the mineral rights on the 987.26 acres of the Seale Plantation not covered by the mineral lease of the Producers' Oil Company also constituted an acknowledgement on plaintiff's part of defendants' rights to the mineral rights involved herein.
If defendants' theory be correct, which it is not necessary to decide, as to the character of the grant to the Producers' Oil Company and the effect of the reservation of the mineral rights by Hunter and McCormick, and that the drilling of the well by the Texas Company was an exercise of a servitude upon the entire Seale Plantation; nevertheless, plaintiff's demand must prevail as to the four parcels of land covered by the grant to the Producers' Oil Company on which no drilling operations were begun until after the filing of this suit.
It cannot be disputed that the capping on September 28, 1918, of the well which was drilled by the Texas Company on section 45 evidenced an intention to abandon the grant, and constituted the beginning of the running of prescription arising from nonuser.
And while it may be true that the uncapping of the well and the withdrawing of the gas therefrom on January 16, 1928, evidenced the intention on the part of the assignee of the grantee to retain the grant and exercise the servitude, it is certain that there was no attempt to exercise the servitude on any of the tracts except section 45 during the ten-year period ending September 28, 1928.
Long prior to January 16, 1928, the day on which the prescription was interrupted, *Page 1075 Hunter and McCormick had sold or renounced to the plaintiff, Arent, the owner by a prior purchase of the tract of land itself, all the mineral rights on the 987.26 acres of the tract not included in the grant to the Producers' Oil Company, which served to connect the five separate parcels of land covered by the grant. Therefore, when Arent, the owner of the land, also became the owner of the servitude resting thereon, the title of the latter became merged with the title of the former and was extinguished by confusion. Civ. Code, art. 783. When this occurred, Hunter and McCormick owned no mineral rights on the Seale place, except those on the five noncontiguous parcels of land covered by the grant to the Producers' Oil Company. The servitude upon the five noncontiguous parcels of land became five distinct servitudes, and the exercise of the servitude on one of the parcels by the withdrawing of gas from the well drilled thereon some nine years before, did not constitute an exercise of the servitude upon the four noncontiguous parcels. Lee v. Giauque, supra; Keebler v. Seubert, supra; La Del Oil Properties v. Magnolia Petroleum Co., supra.
The plea of estoppel filed by Hunter and McCormick is untenable. It is founded on the elementary principle that one cannot dispute the title under which he claims. But Arent never had any dealings with Hunter and McCormick, or with any one claiming to hold under them, with reference to the land covered by the grant to the Producers' Oil Company. He is not challenging or impugning the titles of any of the defendants. He established neither the servitude created by the grant to the Producers' Oil Company nor the servitude created by the reservation by Hunter and McCormick. He is not charged as a warranter with the defense of their rights which were created by themselves. Cf. Wilson v. Pierson, *Page 1076 143 La. 287, 78 So. 561. Arent is merely claiming that whatever rights the defendants had or might have had to the lands involved herein have been lost by the prescription of ten years liberandi causa.
In our original opinion we erroneously held that the servitude resulting from the drilling of the well on the tract of land containing 300 acres in section 45, township 19 north, range 3 east, should be limited to the ten acres surrounding the well. We based our ruling in this respect on the forfeiture clause, which is quoted in our original opinion, in the grant from Hunter and McCormick to the Producers' Oil Company. But, on a further examination of the record, we find that no such issue is involved in the case. The object of plaintiff's suit is not to enforce the forfeiture clause of the grant to the Producers' Oil Company, but to obtain a judgment decreeing that the defendants have lost for nonuser for ten years the servitude created by said grant. The sole relief asked by plaintiff is that his plea of prescription of ten years liberandi causa be maintained, and that the original grant of servitude and the other instruments described in his petition be erased from the public records as clouds upon his title.
Our conclusion is that the drilling of the well and the withdrawing of gas therefrom within ten years on the tract of land in section 45 was the fulfillment of the obligation of the grantee as to that particular tract; thereby saving the entire tract of 300 acres from the operation of the prescription invoked by plaintiff.
As to the mineral rights on the lands of Guy O. Barr, which plaintiff claims as owner under a record title, plaintiff has such possession as real rights of that nature are susceptible. It was admitted on the trial of the case that Barr, plaintiff's grantor, was in *Page 1077 actual possession of the lands on the day of the grant to plaintiff and for more than a year prior to the date of the filing of the suit. No possession was alleged or proved by the defendants. And although in their answers defendants deny the slander of title alleged by plaintiff, they, at the same time, set up title in themselves under the very instruments complained of by plaintiff. Hence, having alleged title to the mineral rights as the main defense to this phase of plaintiff's action, they have put in issue the validity of their own title, thereby converting the suit into a petitory action, with the burden of proof on them to establish their title. This burden plaintiffs have failed to discharge.
For the reasons assigned, our former decree herein is recalled, and it is now ordered that the judgment appealed from be affirmed, at the cost of the appellants.
O'NIELL, C.J., concurs in the result, but does not approve of calling a lease a servitude.