On Rehearing.
Statement of the Case.
MONROE, C. J.On July 2, 1903, Mr. and Mrs. Sailing, authors in title of defendants herein, sold to E. AY. and E. A. Frost, authors in title of plaintiff, some thousands of acres of land, with a certain exception and reservation. Six years later (June 16, 1909), an instrument was recorded in De Soto parish, where the lands are situated, whereby the Frosts sold them, with full warranty and no mention of any exception or reservation, to the Frost-Johnson Lumber Company, a corporation of which E. A. Frost was, and has continued to be, president, and E. AY. Frost was, and has continued to be, a director; and on February 28, 1913, that company, through E. A. Frost, president, sold a small tract of the land to Green Jackson, and thereafter sold other tracts to other persons, with no exceptions or reservations or references thereto in the titles; after which, at intervals, the tracts so sold were repurchased by the company, the last repurchase having been made on March 20, 1917.
In the meanwhile the Sailings had died, and in February, 1917, their heirs and legal representatives had entered into what is called an “oil and gas lease,” whereby they had “demised, let, leased,” etc., all the oil and gas underlying the land in question, with the rights of ingress, egress, use, etc., that are customary in such contracts, to the Consolidated Petroleum Corporation, its successors and assigns, which corporation had assigned the lease to T. J. Lawrence, by whom It has been assigned to the Atlas ~Oil Company; and on June 26, 1917, that company was engaged in drilling one or two wells on the land for oil and gas, when plaintiff brought three actions in jactitation of title, alleging ownership and possession of the land and slander of title by the Sail*783ing heirs and representatives and the Consolidated Petroleum Corporation, by the parties first mentioned and T. J. Lawrence, and by said parties and the Atlas Oil Company, respectively, in claiming ownership of the underlying oil and gas and attempting to lease the same for the development of those minerals, in obtaining and causing to be recorded as valid an oil, gas, and mineral lease upon said property' belonging to petitioner, and in entering upon the lands and drilling a well for oil and gas, thereby disturbing petitioner’s possession.
Exceptions were filed by some of the defendants to the jurisdiction of the court, ratione personse, and by all of them to the right of the plaintiff to bring the suits, on the ground that it was not in possession of the property the title to which was alleged to be slandered; which exceptions were referred to the merits, by consent and without prejudice.
Defendants answered, affirming the validity of the Sailing title and lease and of the various acts charged against them, and plaintiff thereupon pleaded the prescription of 10 years, liberandi causa; the three suits were consolidated for the purposes of the trial; there was a hearing, which resulted in a judgment overruling the plea of prescription and rejecting plaintiff's demands; and plaintiff prosecutes this appeal.
Defendants’ exception and reservation and plaintiff’s plea of prescription read as follows:
Exception and reservation:
“ * * * Excepting and reserving to the first parties, however, all minerals, coal, fossils and precious stones, in, upon or underneath the lands * * * described, together with all mining rights connected therewith, including the right to enter upon * * * described lands, prospect, for, dig and remove any and all minerals and precious stones, * ♦ * with the right to use so much of the said surface of .the said lands as may be necessary for such purposes; also excepting and reserving unto the first parties the exclusive right and privilege to enter upon the lands, * * * or any part thereof, and more, explore for gas and oil, and to utilize and sell gas and oil that may be found or discovered upon said lands, and to use such portions of the surface of said lands as may be necessary'to carry on or conduct, their oil and gas operations on said lands, and to carry and convey away from said lands such gas and oil.”
Plea of prescription:
“ * * * That all the rights reserved by the vendors * * * were real rights in said lands, or servitudes therein; that no attempt has been made, within 10 years from the date of said deed, to exercise any of said rights and the same are now barred by the prescription of 10 years, liberandi causa, which prescription plaintiff now pleads in bar of any rights of the defendants and as perfecting the absolute and unconditional ownership of plaintiff in all of said property.”
The petitions complain of action by the Sailing heirs in regard to an “oil and gas lease,” and of action by the other defendants in regard to an “oil, gas, and mineral” lease, but the lease itself covers only oil and gas, and it is conceded that no question as to rights concerning any other minerals is here involved, although, as may be observed, the prescription is pleaded, “in bar of any right of the defendants, and as perfecting the absolute and unconditional ownership of plaintiff in all of said proper: ty.”
In support of that plea, as applied to the respective claims of the litigants to rights in or to oil and gas, plaintiff’s counsel argue, in their original brief, that defendants’ exception and reservation is twofold, to wit:
“(a) Of ‘all minerals, coal, fossils and precious stones,’ etc.; (b) ‘of the exclusive right and privilege to enter and bore for oil,’ and ‘to utilize and sell the same’; that whatever reservation was made with reference to oil or gas necessarily grows out of the second clause, separated from the first by the 'conjunction ‘also’; * * * that it is not necessary to resort to the rule ejusdem generis in connection with the coupling of ‘coal, fossils and precious stones’ with ‘all minerals,’ in the first clause of' the reservation, although, if that *785clause stood by itself, the authorities are that it would be limited by such association and by the particular nature of the auxiliary rights granted to such substances, which are applicable only to the digging of solid minerals.
“The reservation as to oil and gas therefore stands alone, for, purposely,, it has been inserted as a distinct reservation, because, apparently, at the early date at which this instrument was executed the parties did not know whether oil or gas would be legally considered as ‘minerals,’ and hence made a separate and distinct reservation of the same, so as to avoid any doubt or ambiguity. To determine, therefore, what rights of the vendor remained after the deed as to oil and gas, we can look alone to the language of the reservation affecting this particular substance. That reservation, as we have seen, is entirely different from the one relating to other forms of minerals. It is ‘the exclusive right and privilege to enter upon the lands below described * * * and bore, explore for gas and oil, and to utilize and sell gas and oil that may be found or discovered.’
“The terms themselves, therefore, of the reservation, or exception, demonstrate that the vendors did not attempt to reserve a corporeal property, if such were possible, but that they stipulated, and therefore reserved, only the sole and exclusive right to go upon the lands, to drill the same for oil, and to take away the oil so found and dispose of it as owners.”
Neither of the exceptions -filed by defendants has been urged as such in this court, but as expressive of plaintiff’s position concerning its possession of the land as a condition to its right to maintain this action, and concerning the joases of the action and plea of prescription, we make the following excerpts from the same brief, to wit:
“It is apparent that, the object of the dispute being the oil and gas in the property, the plaintiff being, concededly, in possession of the land and claiming therewith the entire title to land and minerals, defendants setting up ownership in the latter [italics by court], the question of possession, raised by the exception, necessarily depends upon, and must await determination of, title. For, if plaintiff has full ' and complete ownership and possession of the surface, it possesses ad inferno, ad ccelum; if defendants can be said to own minerals, plaintiff’s possession of the surface is not possession of the minerals, and consequently affords no basis for this suit. * * *
“The prescription pleaded is not that acqui-rendi causa, and consequently the case presents no question of adverse possession.
“The plea distinctly, and in terms, sets up a prescription as a bar to defendant’s right; that is to say, a prescription liberandi causa. * * * Under the terms of the act itself, all that was attempted to be reserved was a real right. * * * It is not necessary now to discuss the effect of the reservation as to solid minerals; * * * discussion * * * at this time would be rather academic, for the petition complains only of defendant’s assertion of claim to the oil and gas, and the heirs and representatives of the Sailings * * * claim, in their answer, ‘to be the owners of all oils and gases lying in and under the lands described in plaintiff’s petition.’ The prescription -of the right so asserted, plaintiff standing on the proposition that it was a real right in its property, is the. basis of this suit.
“If the Sailings had stipulated a reservation of ‘all the oil and gas underneath’ the land, instead of, merely/the exclusive right and privilege to enter upon * * * and bore,’ etc., the effect would have been the same.”
Authorities are then cited in support of the view that oil and gas are not susceptible of ownership, and plaintiff’s position is stated as follows:
“Those decisions all rest upon sound reason, for, from the very nature of the substances with which we are dealing, while the owner of the land has the exclusive right, on his own land, to seek to acquire them, they do not become his property until .the effort has resulted in dominion and control by actual possession.”
Opinion.
From an analysis of the pleadings and a comparison of those of the plaintiff with the printed argument of its learned counsel, it appears that they conflict in important particulars ; and, confining our attention to the pleadings in the case, as we are constrained to do, we find that the issues, properly presented for decision, may be stated, and, as stated, disposed of, as follows:
1. Was the right to servitude, which plaintiff alleges was created by the exception and reservation in the sale from the Sailings to the Frosts, barred, for nonuser, by the prescription of 10 years, liberandi causa?
*787The article of the Civil Code which, alone, in terms, establishes a prescription against a right of servitude, reads as follows:
“Art. 789. * * * A right to servitude is extinguished by the nonusage of the same during ton years.”
But there are other articles which greatly restrict the application of article 789, to wit:
“Art. 795. * * * Prescription for nonus-age does not take place against natural or necessary servitudes, which originate from the situation of places.”
“Art. 653. Servitudes being essentially due from one estate to another for the advantage of the latter, they remain the same so long as po change takes place in regard to the two estates, whatever change may take place in the owners.”
And, as it would be impossible to conceive of a servitude more natural or more necessary, or which more certainly originates from the situation of the places than that which the surface of the lands must owe to the estate beneath, it would seem to follow that the prescription for “nonusage” has no application herein; that the plea was properly overruled; and, since counsel say, in their brief, that “the prescription is * * * the basis of this suit,” it would also seem to follow that the suit is at an end; that it is now beyond controversy that the reservation relied on by defendants at least imposed upon the estate now held by plaintiff a real right of Servitude as alleged by plaintiff, whereby defendants are secured in the exercise of the “exclusive,” and practically imprescriptible, “right and privilege” to enter upon that estate, and make such use of it as may be necessary in boring and exploring for oil and gas, and (if found thereon, or thereunder), to appropriate, remove, sell, or to otherwise dispose of such of those minerals as they may find.
2. Was it the intention of the parties, as expressed in their contract, that the exception and reservation therein should include the right of ownership of the Sailings in the oil and gas underlying the lands, or should include only the exclusive right to enter upon the lands, and, making such use of them as might be necessary, bore and explore for those minerals, and, finding, take and dispose of them at will?
[6] In the consideration of that question; we are to bear in mind that the contract to be interpreted was entered into in Louisiana, to be wholly executed here; that it concerns only questions of ownership and other rights in immovable property here situated; and that, the conformity to the Constitution of the United States of the law of Louisiana governing those questions being wholly undisputed, they are to be decided in accord-an'ce with that law, ’and no other, 32 Cyc. 674, citing, among other cases: U. S. v. Fox, 94 U. S. 315, 24 L. Ed. 192; Brine v. Hartford Ins. Co., 96 U. S. 627, 24 L. Ed. 858; Hutchinson Invest. Co. v. Caldwell, 152 U. S. 65, 14 Sup. Ct. 504, 38 L. Ed. 356; De Vaughn v. Hutchinson, 155 U. S. 566, 17 Sup. Ct. 461, 41 L. Ed. 827; L. R. A. Dig. U. S. Sup. Ct. vol. 1, p. 343; Id. p. 399; vol. 2, p. 1550 et seq.; Hughes v. Hughes, 14 La. Ann. 85.
The law of Louisiana (G. C. arts. 1950, 1955, 1903), declares that—
“When there is anything doubtful in agreements, we must endeavor to ascertain. what was the common intention of the parties, rather than to adhere to the literal sense of the terms. All clauses of agreements are interpreted the one by the other, giving to each the sense that results from the entire act. The obligation of contracts extends, not only to what is expressly stipulated, but also to everything that, by law, equity or custom, is considered as incidental to the particular contract, or necessary to carry it into effect.”
In the instant case, as we have seen, the contract evidences the sale of described lands, less certain of the constituent elements of ownership, which the sellers and buyers agreed, and so declared in the act, should he excepted and reserved from the *789sale, to wit (eliminating words irrelevant to present inquiry):
“A11 minerals, coal, fossils and precious stones * * * underneath the lands, *' * * including the right to enter, * * * prospect for, dig and remove all minerals and precious stones, * * * with the use of so much of the surface of said lands as may be necessary for such purposes; also excepting and reserving * * * the exclusive right, and privilege to enter upon the lands * * * and bore, explore for oil and gas, and to utilize and sell oil and gas that may be found, and to use such portions of the surface of said lands as may be necessary to carry on * * * their oil and gas operations. * * * and to carry away * * * such gas and oil.”
We infer from the record that the Sailings, who owned the lands, lived in a distant state, and had probably acquired them as an investment and with reference, more particularly, to the timber that was standing on them, and that the Frosts, who appear to have been heavily interested in the lumber business, bought them for the timber. There is, however, no evidence to show whether the minerals were withheld from the sale because the Sailings did not care, at that time, to sell them, or because the Frosts did not care to buy them. It is hardly conceivable that they should have agreed that all minerals should have been excepted from the sale if they had intended that less than all of them should be so excepted, since the Frosts, as we infer, paid nothing for minerals and the Sailings received nothing; and they cannot be presumed to have intended to give any of them to the Frosts. It is conceivable that certain minerals should have been specified as included in those excepted from the sale, since the attention of the sellers may have been particularly attracted to them, or they may have regarded them as unusual, and the specification may, in their opinion, have, made their exception more certain than to leave them included in the. general term “all minerals.” That natural oil and gas are regarded as minerals, and hence that they were included in the affirmative and positive terms of the exception from the sale of “all minerals,” cannot be denied; and, as against the presumption that what was thus done was intended to be done, there is nothing but the unauthorized inference that, though the parties declared that all minerals were excepted, they intended to except only those which were specified, or those of like character. If, however, that doctrine were accepted, the^ Frosts, or their assigns, might find themselves, to their great surprise, the owners of salt or sul-phur mines (they being extensively mined in this state), for which they paid nothing, and never expected to acquire, or even gold mines, notwithstanding that about the only resemblance between that mineral and coal, fossils, and precious stones is that they are all what are called solids, though they may differ in their solidity, and though gold is not at all ejusdem generis as coal and fossils as to value, nor of like character as precious stones as to composition. Again, only a few years (perhaps two or three) prior to 1903, when the contract in question was entered into, oil, and possibly gas, had been developed at “Spindle Top,” near Beaumont, Tex., not more than- a night’s ride by train from De Soto parish, and, as surface indications of oil had for many years, been observed in different parts oi Louisiana, oil was more considered and talked about at the date of the contract than all other minerals combined. In fact, litigation about oil lands and oil leases reached this court as early as 1901, and probably earlier (Jennings-Heywood Oil Syndicate v. Home Oil Co., 113 La. 383, 37 South. 1), and has continuously swelled the volume of its business since that time. Beyond that, why, if it was not intended to include oil and gas in the exception of “all minerals” from the sale, should it have been *791agreed that the sellers of the lands should have the “exclusive right and privilege” at their pleasure and indefinitely to enter thereon, bore, and explore them for oil and gas, take all of those substances that are to be found, and appropriate them to their own use? What object could any sane men have had in thus dealing with all the essential constituents of ownership and denying ownership itself?
[7, 8] Apart, however, from the surrounding or concurring circumstances, our reconsideration of the matter satisfies us that the exception and reservation of the exclusive right to enter, bore for, and take the oil and gas is as intimately and grammatically connected with the antecedent exception and reservation of the ownership of all minerals as is the right to enter, dig for, and take the solid minerals; the plain intention, as we conclude, having been to make a general exception and reservation covering the ownership of “all minerals,” then an exception and reservation of the right to dig, as appropriate to the mining of solids, followed by a reservation of the right to bore, as appropriate to the mining of oil and gas; and that intention, we think, has been carried into effect by the language used. With reference to other positions taken by plaintiff’s counsel in the argument of the case, our findings and conclusions are as follows:
Plaintiff alleges in its petition that it is the owner of the lands which it describes, and that allegation carries with it a claim to the ownership of everything that may lie under the surface of the lands, since the law (0. O. art. 505) reads:
“Ownership of the soil carries with it * * * all that is directly above and under it.”
But, more definitely still, it alleges, in its plea of prescription, not that the underlying oil and gas are insusceptible of ownership while under the soil, nor yet that they may not, in that situation, be effectively and legally excepted and withheld from a sale of the lands, hut that the contract under which such ownership is here claimed by the litigants on both sides fails to except and reserve the ownership, and, by its terms, excepts and reserves only the exclusive right to enter upon the lands and there take the oil and gas that is. to be found, appropriate, remove, and sell or otherwise dispose of them. And, as against that right, alleged to create a servitude upon the lands, as acquired by its authors in title, plaintiff pleads the prescription liberandi causa. According to its terms, that plea would appear to be directed against all claims set up by defendants, including that of ownership in, and rights to enter, dig for, and appropriate, the solid minerals, as well as those rights (“bore” being substituted for “dig”) with respect to oil and gas; but it is conceded that there is here no controversy about the solid minerals, and the pleaded contention is that, if the prescription be maintained as to defendant’s ownership of the oil and gas, such ruling will operate to perfect the absolute and unconditional ownership of plaintiff in all of the property. Thus plaintiff alleges that it pleads the prescription in question “in bar of any right of the defendants, and as perfecting the absolute and unconditional ownership of plaintiff in all of said property” ; to which judicial allegations its counsel add the statements hereinbefore quoted from their brief, to wit:
“It is apparent that, the object of the dispute being the oil and gas in the property, the plaintiff being coneededly in possession of the land, and claiming therewith the entire title to land and minerals, defendants setting up ownership in the latter, the question of possession raised by the exception necessarily depends upon, and must 'await, determination of title.”
[9,10] The pleadings in the case, therefore, present no issue upon the question of the susceptibility vel non of oil and gas to owner*793ship, but, to the contrary,. concede the susceptibility, invoke the action of the court upon the question whether the ownership is vested in plaintiff or defendants, and leave no room for either argument or action upon the question of susceptibility vel non; though plaintiff’s counsel, after pleading “absolute and unconditional ownership’’ in plaintiff, argue first in support of that plea, and then in the alternative, and, in the event that the court should be inclined to hold that the ownership of the oil and gas having been vested in the Sailings as to oil and gas lying directly under the land held by them, and having been excepted and reserved from the sale of the land, remained so vested, then argue that oil and gas in situ are not susceptible of ownership; which question has been so exhaustively argued, not only by the counsel representing the litigants before the court, but by numerous amici curia?, having clients who are interested therein, that, as to that doctrine, the court will probably never be in a better position to decide it. Courts are not, however, at liberty to decide cases upon issues which are raised in arguments only, and are in conflict with those raised by the pleadings. The ideadiugs, it is true, may be enlarged by the admission of evidence to which no objection is made, but in this case there is no evidence which tends to enlarge the pleadings and the fact upon which the doctrine in question is based, to wit: That those minerals beneath the surface are comparatively unconfined, and capable or susceiitible of almost unlimited movement has been neither proved nor attempted to be proved.
Being of opinion, then, that the decision of this case is to be governed exclusively by the law of Louisiana; that the question whether natural oil and gas in situ are susceptible of ownership has not been put at issue by the pleadings herein, but that, to the contrary, it is judicially alleged by the litigants on both sides, and the action of the court is invoked upon the theory that those-minerals, so situated, are susceptible of ownership — it would be a work of supererogation, and beyond the proper scope of this opinion, for us to express our views concerning the decisions to which we have been referred of the courts of other jurisdictions interpreting other laws, and determining questions of the legality of action thereunder, as affected by the restrictions imposed by the Constitution of the United States. As their concluding argument, plaintiff’s able and indefatigable counsel say that, if it be' held that the exception and reservation by the Sailings of the exclusive right to enter upon the lands and bore, explore, take, and dispose of the oil and gas to be found thereunder is not entirely disconnected from the exception and reservation of “ all minerals,” etc., which preceded, it must be regarded merely as a mobilization by anticipation of the oil and gas, and not as the creation of a separate estate; or, in the language of the brief, that it “is not a sale of ownership in the land, not a separation of the area from the trefond, but a sale of the minerals, mobilized by anticipation,” which, while it creates a real right, does not create a separate estate. And, in support of that view, attention is called to decisions by this court to the effect that growing crops and standing trees may be so mobilized. In Bank v. Wiltz, 31 La. Ann. 244, first cited, it was held that the privilege and pledge of the factor or furnisher of supplies- on the growing sugar cane crop, under the act of 1874, covered that portion of the crop which, in. the ordinary sense, was to become merchantable, and took precedence of an antecedent mortgage, but that it did not cover that portion that tyvas reasonably reserved for seed. The mobilization of the merchantable crop, for a special purpose, resulted, therefore, from a special statute; otherwise it would *795have remained an immovable, as provided by C. C. art. 465. In Williams v. Triche, 107 La. 32, 31 South. 926, it was held that where the right to cut and remove standing trees was sold by the owner of the land, though the trees were not to become the property of the purchaser until cut and removed, they continued to form irnrt of the land, apd were properly assessed to its owner.
And, by Act 188 of 1904, p. 420, it was declared that standing timber shall remain an immovable, and. subject to all the laws applicable to immovables, though separated in ownership from the soil; provided that the act shall not be construed as affecting existing laws relative to the assessment and taxation of such timber. It is clear, therefore, that standing crops are mobilized as the result of a pledge, only by reason of special legislation, and that otherwise they continue to be part of the immovable upon which they stand until severed therefrom, and that the same is true of standing trees, save in the matter of assessment and taxation. Counsel also cite French authorities to the effect that stone from quarries and standing timber may be sold’ as movable property, and in such cases treated as such. But, in this case the owner of the land, of which all the underlying minerals formed part, sold it, excepting and reserving that part, to wit, all the minerals, 'the whole transaction being one concerning a title to immovable property, dealt with as such, and the dismemberment thereof; to which view, and to the view that a separate estate was thereby created, plaintiff is irrevocably committed by its allegation that the exception and reservation of the minerals and of the mining rights with respect to them established a real right or servitude on the interest conveyed to its author in title since the law (O. C. art. 648) upon that subject reads:
i “To establish a predial, or real, servitude, there must, first, be two different estates, one of which owes the servitude to the other.”
M. Demolombe says,
“Without doubt, the owner of the soil can alienate a part of the land, an underground or a surface part of it; he can alienate, for instance, the mine itself. * * * In these different cases, there is no doubt that it is necessary to consider as immovable the rights of the acquirer, who, in effect, himself becomes an owner of part of the immovable, considered in its state of immovable, and to be possessed and exploited as immovable.” 9 Demolombe, De La Distinction Des Biens, p. 84, No. 162.
In the common-law states, it seems to be well settled that:
“The severance of a mine anu the surface of lands may be accomplished by a conveyance of the mines and minerals, or by a conveyance of the land with a reservation or exception as to mines and minerals. There is no substantial-difference between the two methods, in the result accomplished; for a reservation will be construed as an exception where that is the plain intent, and the grantor will, retain in himself a fee-simple estate in the portion reserved. * * * Either a grant or exception of ‘minerals’ will include all inorganic substances which can be taken from the land, and to restrict the meaning of the term there must be qualifying words or language evincing that the parties contemplated something less general tlian all substances legally cognizable as minerals.
“Contracts excepting ores and minerals from grants of land, with a reservation of the right to enter upon the portion thereof granted, are in accordance with long established usage and have been invariably held by the courts to be valid; hence they arc not contrary to public policy. It must be remembered, however, that the owner may convey the minerals upon condition that the vendee extract them by a specific time, or in a stipulated mode, or that title shall pass only when certain royalties are paid; in these, instances there is no present, consummated, sale.”' 18 R. C. L. p. 1175, § 84. See, also, p. 1178, § 86.
For the reasons thus assigned, we are of opinion that the judgment appealed from should be affirmed; and it is so ordered.
The .right of the plaintiff to apply for a rehearing is reserved.
*797PROYOSTY, J., concurs in the result and hands down concurring opinion. O’NIBLL, J., dissents anil hands down reasons. DAWKINS, J., dissents.