Frost-Johnson Lumber Co. v. Salling's Heirs

PROYOSTY, J.

I concur in the result of the decision handed down in these suits hy the Chief Justice, and will give my reasons for so doing.

The only facts now pertinent are as follows :

In 1903 the Sailing heirs, defendants in these suits, sold a 'tract of land to E. W. and E. A. Erost, with a reservation in the act of sale in these words:

“Excepting and reserving unto the first parties however, all minerals, coal, fossils and precious stones in, upon or underneath the lands below described, together with all mining rights connected therewith, including 'the right to enter upon the below-described lands, prospect for, dig and remove any and all minerals and precious stones in, upon or contained in said lands, with the right to use so orach of said surface of 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 below described or any part thereof, and bore, explore for gas and oil and to utilize and sell gas and oil that may be found or discovered in 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 land, and to carry away from said lands such gas and oil.”

In 1909, no oil or gas having yet been discovered on the land or in its neighborhood, the Frosts sold the land to the Erost-Johnson Lumber Company, plaintiff in these suits, with no reservation of any kind, and no mention of the reservation which the Sailing heirs had made.

In 1917, the Sailing heirs made oil and gas leases upon the land in favor of the several companies, codefendants in these, suits, and the leases were recorded; and thereupon the plaintiff company brought these suits, claiming that by the said leases its title to the land was being slandered, because the reservation of oil and gas which the Sailing heirs had made was merely of a servitude which had terminated by prescription, it not having been exercised within the ten years following the date of the reservation.

One reason assigned by plaintiff why the said reservation of oil and gas was merely of a servitude is that oil and gas while still underground, or in situ, are not susceptible of private ownership. And it is this question which must first be discussed.

In support of the affirmative, the plaintiff cites the decision of the Supreme Court of the United States in Ohio Oil Co. v. Indiana, 177 U. S. 190, 20 Sup. Ct. 576, 44 L. Ed. 729, and the decisions of this court in Wadkins v. Atlanta & Shreveport Oil & Gas Co., not reported, and Hanby v. Texas Co., 140 La. 189, 72 South. 933, and refers to the following decisions as having cited with approval the three decisions here mentioned, and as containing expressions or dicta in line with their doctrine, to wit: Rives v. Gulf Refining Co., 133 La. 178, 62 South. 623; Cooke v. Same, 135 La. 616, 65 South. 758; Elder v. Ellerby, 135 La. 995, 66 South. 337; Strother v. Mangham, 138 La. 437, 70 South. 426; Saunders v. Busch-Everett Co., 138 La. 1049, 71 South. 153; and Higgins Oil Co. v. Guaranty Oil Co., 145 La. 233, 82 South. 206, 5 A. L. R. 411.

In support of the negative the defendants cite De Moss v. Sample, 143 La. 243, 78 South. 482, and Calhoun v. Ardis, 144 La. 311, 80 South. 548; and also a decision of the Court of Appeal, Second circuit, in the case of Bradford v. Williams, wherein a writ of certiorari was refused by this court, and, as containing favorable dicta, the cases of Rives and Cooke, supra.

I will not go over that jurisprudence; both sides are claiming that the preponderance of it,is in their favor, which shows *799that the question is still an opon one in this state.

Those of said decisions and dicta which are on the affirmative side may be said to have followed docilely the decision in Ohio Oil Co. v. Indiana, which in turn may be said to have been induced by the then prevalent notion that oil and gas lie in reservoirs underground, and have no fixed situs, but circulate freely there, whereas the geologic fact may be said to be now reliably ascertained that these minerals are contained in shale and sand strata, which they permeate, and that the lateral movement of the oil is sluggish, and more often than not restricted within narrow bounds, as is witnessed by the proximity of the wells to each cither in a developed oil field — presenting the appearance of a forest of derricks — and by. the expert testimony before this court in other cases to the effect that, as a rule, offsetting wells for protection against wells upon adjoining land are not deemed necessary as against wells no nearer to the boundary line than 200 feet; in other words, that the draining influence of a well is supposed not to extend farther than this.

In an article which appeared in the Michigan Law Review of April, 1920, by Mr. James A. Veásey, who evidently has given much study and thought to this subject, the following is found:

“We again advert to the fact that oil and gas in their natural state do not migrate laterally, but, to the contrary, maintain their original situs. The only circumstance which induces their perceptible movement is a well penetrating the producing strata, and even then drainage is not an inevitable result. AVhether there is any drainage by adjacent wells in a particular case, and the extent of that drainage, are pure questions of fact, to be. determined by the capacity of the adjoining wells, the porosity of the sand, regularity of the producing formation, the degree of rock pressure, and such other circumstances as would control the judgment of a practical operator in reaching a conclusion respecting the matter of drainage.”

The cases cited in Ohio Oil Co. v. Indiana from the Supreme Court of Pennsylvania do not hold that the owner of the soil is not owner of the oil and gas under the surface and forming part of the land. Thus, in Hague v. Wheeler, 157 Pa. 324, 27 Atl. 714, 22 L. R. A. 141, 37 Am. St. Rep. 736, the court said:

“But the owner of the surface is an owner downward to the center, until the underlying strata have been severed * » * by sale. What is found within the boundaries of his tract belongs to him according to its nature. The air and the water he may use. The coal and iron or other solid mineral he may mine and carry away. The oil and gas he may bring to the surface and sell in like manner to be carried away and consumed,' His dominion is, upon general principles, as absolute over the fluid, as the solid minerals. It is exercised in the same manner, and with the same results. He cannot estimate the quantity in place of ga'S' or oil as he might of the solid minerals. I-Ie cannot prevent its movement away from him, towards an outlet on some other person’s land, which may be more or less rapid, depending on the dip of the rock or the coarseness of the sand composing it; but so long as he can reach it and bring it to the surface, it is his absolutely, ’ to sell, to use, to give away, or to squander, as in the case of his other property. In the disposition he may make of it he is subject to two limitations. Ho must not disregard his obligations to the public. He must not disregard his neighbor’s rights.”

See, also, Barnard v. Monongahela Gas Co., 216 Pa. 362, 65 Atl. 801.

And the later decisions of the Supreme Court of Indiana are practically to the same effect. Thus, in Kahle v. Crown Oil Co., 180 Ind. 131, 100 N. E. 681 (1913) the court said:

“Petroleum in and under the surface of the earth, and not reduced to actual possession of any person, constitutes a part of the land, and belongs to the owner thereof, who has the right to reduce the mineral to possession or grant the privilege of doing so to other persons.”

And in Fairbanks v. Warrum, 56 Ind. App. 337, 104 N. E. 983:

“We proceed to determine whether or not said paragraph of complaint states a cause of *801action. Noble Warrum at the time of the execution of said lease was, as the owner of the fee, the owner of everything that went to make up the realty. The natural gas beneath the surface was a part of the realty, and therefore Noble Warrum was the owner of such gas. By reason of the fugitive character of natural gas, however, he was such owner only in a qualified sense. As long- as such substance remained . beneath the surface of his land, he continued to be such owner, until in some manner he parted with the title thereto. But if, by its natural tendency to flow, it should escape to the lands of an adjoining proprietor, such ownership would thereby cease.”

For an authoritative statement of the view taken by the courts of this country generally of the susceptibility of oil and gas in place to ownership, I may quote from the decision in Kansas Natural Gas Co. v. Haskell (C. C.) 172 Fed. 545, as follows:

“The rule of property right in natural gas and oil in all the states save Indiana is stated by Mr. Justice Shiras in Brown v. Spilman, 155 U. S. 665, 15 Sup. Ct. 245, 39 L. Ed. 304, as follows:

“ ‘Petroleum gas and oil belong to the owners of the land, and are a part of it, so long as they are on it or in it, or subject to his control; but when they escape and go into other land, or come under another’s control, the title of the former owner is gone. If an adjoining-owner drills in his own land and taps a deposit of oil or gas extending under his neighbor’s field, so that it comes into his well, it becomes his property.’ ”

However authoritative, therefore, may be the decisions of the Supreme Court, of the United States, and however profound may be the respect due to the views of t]ie great jurist who was the organ of the court in this Ohio Oil Company Case, I think that that decision must be held to be founded upon an exploded supposed geologic fact, and to be counter to the view generally entertained by the courts of this country.

Basing themselves upon it, the learned counsel in this case say that—

“It is legally impossible for the oil as yet contained within its containing stratum to be in the ownership of any one.”

How.this can be reconciled with the fact that the land does not consist of the surface alone, but of the entirety — the under part, comprising all that composes it, as well as the surface — I am at a loss to imagine, especially in this state, where that fact, or truism, is matter of statutory law; article 505, C. C., reading:

“The ownership of the soil carries with it the ownership of all that is directly above and under it.”

.The oil and gas are under, and therefore the ownership of the surface carries the ownership of them.

Whatever justification the courts of the other states might have for adopting a conclusion opposed to the truism that oil and gas, being part of the soil, belong to the owner of the soil (on the principle that the parts composing a whole belong to the owner of the whole), certain it is that the courts of -this state are utterly without authority to adopt any such conclusion. For in this state that truism has been enacted into statutory law, and statutory law is binding on the courts. The right of the Legislature so to prescribe is undoubted. No 'one will contest the proposition that the power resides in the constituted authorities of every free nation to prescribe what things shall be, or shall not be, property, and in what way or ways property may be acquired. Nor will any one contest, the proposition that, within the rule of due process of law, this same power belongs in the same measure to _ the several states of this Union, and is- vested in their Legislatures, nor the proposition that the said article 505 does not deprive any one of property without due process of law, or that it is not for any other reason unconstitutional. The said statutory provision does not except oil and gas from the ownership which it establishes, and the courts are powerless to insert the exception.

Susceptibility to ownership is denied because these minerals possess the power of *803self-transmission, and may escape'. But because a thing possesses tbe power of self-transmission, and may escape, is not a reason why it should be insusceptible of ownership.

Our horses and mules and sheep and cattle, our chickens and ducks and geese, possess this power of self-transmission in a greater degree than oil; they are not for that reason insusceptible of ownership.'

And, if it is said that those things are not analogous to oil, because they may be confined, or controlled, whereas gas and oil underground may .not, then, I ask, what about our pigeons and bees and fish, as to which article 519, C. C., says:

“Art. 519. Pigeons, bees or fish, which go from one pigeon house, hive or fishpond, into another pigeon house, hive or fishpond, belong to the owner of those things; provided, such pigeons, bees or fish have not been attracted thither by fraud or artifice.”

Will it seriously be said that the system-of laws which recognizes ownership in things so light of wing as birds and bees, and so fleet of movement as fish, and of so trifling value, denies ownership to a substance so infinitely less mobile as oil, and so valuable that its possession is now threatening to become the apple of discord between the nations of the earth? And, be'it noted, all the pigeons in a pigeon house and all the bees in a hive and all the fish in a pond may escape, leaving none behind, whereas no one has ever contended that all the oil and gas in a tract of land could drain into another tract; and these living things are as insusceptible of identification after having thus escaped as oil and gas.

The fact is that the real reason why the susceptibility of underground oil and gas to ownership is denied is not because they may escape, but because they are supposed to be incapable of being reduced to actual possession so that they may be prevented from escaping. The latter supposition is incorrect, since one tract may be protected against the wells of another tract by means of offsetting wells. But, if wé grant the impossibility of reducing the oil and gas to actual possession, while still underground, does it follow that they are for that reason insusceptible of ownership. Article 496, C. C., provides expressly to the contrary. It reads:

“Art. 496. The ownership and the possession of a thing arc entirely distinct.

“The right of ownership exists independently of the exercise of it. The owner is not less the owner because he performs no act of ownership, or because he is disabled from performing any such acts, or oven because another performs such acts without the knowledge or against the will of the owner.”

That a thing may escape shows that the ownership of it may be lost, not that the thing is insusceptible of ownership.

The ownership of oil and gas underground may be more or less precarious, and is undoubtedly so for the part which may escape; but what ownership is there that is not more or less precarious in many respects — for instance, in being held subject to tbe police power, to the eminent domain power, and to the taxation power; subject also to tbe maxim, “Sic utere tuo ut alienum non lsedas;” and subject to being lost through the prescription of 10 and 80 years, and through accession, as the result of the thing which forms the subject of it being insusceptible to identification after it has passed into the possession of some one else. The ownership of oil and gas is, no doubt, subject to the qualification that it is lost if the oil and gas migrate from the land; but that is no reason why these minerals should not belong to the owner of the land while they remain in the land. The reason why they are no longer the property of the person from whose land they have migrated is that they have become the property of the person to whose la.nd they have migrated. They belong to this new owner because they form part of his land.

The reason why the ownership of them is *805lost is that they can no longer be identified, and because no one can know that they ever migrated from another land, and were not originally formed in the land from which they come. If the oils of different tracts were so characterized by color, density, or other quality that they could be traced and identified wherever they went, the law might easily allow them to be revendicated where-ever found, precisely as a stray horse or mule is allowed to be revendicated; but, in the absence of any means of identification, the law in its impotence finds itself compelled to abide by the rule according to which the oil is conclusively presumed to have always formed part of the land out of which it comes.

Ohio Oil Co. v. Indiana recognizes in the owner of the surface the exclusive right to take the oil, but does not explain whence is derived this right, or, in other words, upon what it is founded. An obvious foundation can be found for it in this surface proprietor’s ownership of everything that is under his land; but, such ownership not being admitted, the question recurs, Upon what is this right of exclusion founded? To that question there can be but one answer: The surface owner has the exclusive right to take the underground oil because this oil cannot be taken except through the surface or through the perpendicular sides of his land, and, as owner of the land, he may exclude all persons from the land. This is'the only possible answer; but this answer carries with it an admission of the oil itself being owned, since the oil forms part of the thing as to which the right of exclusion exists' — namely, the land. The ownership merely of the surface, separate from the underneath, would not include the right to take anything underneath. A thing or a right cannot extend beyond itself. The right to take the underneath, or the things contained in it, can be derived only from the ownership of the underneath'; and the ownership of the underneath means the ownership of the underground oil and gas which are as much a component part of the underneath as any other of its component parts.

If the ownership does not exist in the' owner of the land it exists in nobody; and that is what learned counsel say. But let us put the proposition to the test of practical application. If the oil and gas belong to no-one, they may, like a wild animal, be appropriated by any one, and be disposed of by the Legislature at will. Article 3415 of the-Code says:

“It is agreeable to natural reason that those things which have no owner, shall become the-property of the first occupant.

“And it is not material whether they are taken by a man upon his own ground or upon the ground of another.”

Now, no one would seriously contend that the oil coming out of my land does not belong to me if brought out by some trespasser. Yet that is the conclusion which this doctrine of the nonownership of the oil by the owner of the land while still underground would inevitably lead to.

If it is said that the oil and gas thus brought to the surface of my land by a trespasser would belong to me because they would be the fruits of the exercise of my surface right to take them, 1 ask, whence is-derived the right thus attributed to me as-surface owner? As already explained, it cannot be derived from my ownership of the-surface, because a thing cannot extend beyond itself; and hence the surface ownership, cannot include anything beyond the surface. This right thus attributed to the surface' owner belongs to him, therefore, not because he is owner of the surface, but because, as-owner of the surface, he is owner of everything below the surface.

h'or escaping from the conclusion thus resulting, both from the nature of things and from the express terms of a statute, the proponents of this nonownership theory ar*807gue that, since oil and gas cannot be. prevented from escaping from one tract of land into another, they cannot be said to “belong to some one in particular to the exclusion of all other persons,” and therefore cannot come within the definition of ownership as contained in articles 488 and 494 of the Code, reading:

“Art. 488. Ownership is the right by which a thing belongs to some one in particular, to the exclusion of all other persons.”

“Art. 494. It is the essence of the right of ownership that it cannot exist in two persons for the whole of the same thing; but they may be the owners of the same thing in common, and each for the part which he may have therein.”

The argument is that, since ownership is the right by which a thing belongs to some one in particular, to the exclusion of all other persons, and since “it cannot exist in two persons for the whole of the same thing,” .therefore oil and gas are insusceptible oí ownership, because they may of their own motion pass from the land of one owner into that of another owner.

No proof whatever has been administered in this ease of this supposed power of self-transmission; and if, as already stated, the resort is to be had to judicial knowledge of scientific facts, the knowledge would have to be just the other way, except as to a part of the oil and gas.

But, if it were to be granted, for the argument, that oil and gas in place cannot come within the definition of ownership as contained in the Code, would the consequence necessarily have to be that oil and gas in place cannot be the subjects of ownership? Í imagine not. A thing so valuable as oil and gas in place, constituting so universally, the world over, the subjects of contract, cannot, in the nature of things, not be subjects of ownership; and hence, if the definition of ownership contained in the Code did not fit these valuable things, the consequence would have to be- that the said definition would have to be held to be antiquated, out of date, and defective, and not that underground oil and gas are not subjects of private ownership.

But nothing in said definition prevents it from fitting oil and gas in place as subjects of ownership. These things do belong to the owner of the land to the exclusion of all other persons, since he has the right to exclude all other persons from taking them. He has that right, though the exercise of it, under the circumstances, be difficult. But the exercise of the right of ownership by actual possession must not be confounded with the existence of .the right. .Our Code makes that very clear;

“Art. 496. The ownership and the possession of a thing, are entirely distinct.

“The right of ownership exists independently of the exercise of it. The owner is not less the owner because he performs no act of ownership, .or because he is disabled from performing any such acts, or even because another performs such acts without the knowledge or against the will of the owner.”

When thousands of cattle ranged and multiplied on the limitless plains of the West, their owners had the greatest difficulty in rounding them up, and were liable to lose many a head through- straying, and mingling with other herds. Because of this difficulty of control and liability to loss the cattle did not become insusceptible of ownership.

So far as concerns the provision of article 494, that ownership “cannot exist in two persons for the whole of the same thing,” it means simply, of course, that it cannot so exist at the same time. Nothing prevents it from existing in the owner of the land so long as the oil and gas are in his land.

One single owner may own the entire oil field, so that the oil and gas could not possibly escape from his land. In such a case, if he does not own the oil and gas underneath, what becomes of article 505 of our Code, which article, as already stated, is but the enunciation of a truism. It will not be said *809that the ownership of an entire oil field by one man is impossible, since, as I remember, the celebrated Spindle Top field occupies less than a section of land, and the tract of land involved in the present case contains many sections. Besides, what difference could it make that the field was owned in severalty by many owners. Would not the only effect of this be to make the underground oil and gas belong to several owners instead of to only one? We are not concerned with the rights of these owners inter se, nor with the right of the state to regulate the use and waste of the natural resources of the state, but simply with the question of ownership vel non of the oil and gas in place by the owner of the soil part of which they are.

What distance into a tract of land the influence of the wells of an adjoining tract will extend must depend, of course, upon circumstances. As a rule, it is not supposed to extend, as already stated, beyond 200 feet. So that only the edges of the tract of land can be affected. Now, while the banks of the Mississippi river are not endowed with locomotion, they are unstable, and may at any time pass from one riparian owner to another as the result of the uncontrollable action of that river; the sand and gravel in the bottoms of our rivers are shifting all the time, and a sand bed on the side of a hill on one tract of land may be washed down at any time by the rains to another tract; the sand hills on one tract may be blown by the winds to another tract. If the liability of these things to be lost to their owner does not render them, or the land from which they are lost insusceptible of ownership, why should the liability of the oil and gas on the edges of a tract of land to be lost to the owner render these things, or the mass out of which they are lost, insusceptible of ownership.

If it is said that the movement of these things results from the action of nature, not of man, whereas the migration of oil and gas from one tract of land into another is brought about by the act of the owner of the adjoining tract in sinking oil wells, or operating pumps, then, I ask, what if science should discover a means of liquifying solid minerals, so that they might move underground like oil and gas, and be dravra out of one tract by the operations on an adjoining tract. Would not the owner of these solid minerals lose his ownership of them precisely as the owner of gas and oil is said to do? But, it may be said, this is supposing something impossible. No; not so. Already rock salt is mined in that way in Kansas, and sulphur in Louisiana. Suppose a railroad right of way 50 feet wide, of which the fee itself was vested in the railroad, traversed the sulphur deposit in Louisiana, and the railroad company moved its line to another location and set to work exploiting the sul-phur deposit underneath the 50-foot strip by this process of liquifying the sulphur, so that the company would be drawing the liquid sulphur from the adjoining land on both sides of the 50-foot strip. Would the solid sulphur underground become insusceptible of ownership? And yet in such a case it would be the act of man that caused the sulphur to migrate from one tract into another, precisely as in the case of oil and gas.

Eor all that is known, the oil and gas within the land involved in this case may be as securely confined therein as in an above-ground tank. And, at all events, they have remained fixed in place since before the formation of the delta of the Mississippi Valley, and, if not disturbed by act of God or man, would so remain fixed in pflace until all the lands of this delta should have shifted back and forth timé and time again from one riparian owner to another as the result of that mighty river’s constant erosion of its banks; they world so remain fixed in place until countless generations of men had come upon the surface of this earth and passed away; and yet it is seriously .contended that *811they are too mobile, fugitive, and fugacious, to be the subjects of ownership, and are sought to be likened, for the purposes of the decision of so important a .case as this, to some restless wild animal.

The contention is not made that all the oil and gas may escape from a tract of land. The argument reduces itself therefrom to this: That because some part of the oil and gas may escape there can be no ownership of the part that remains — and this although no one can know with any certainty that any has escaped, or may escape, from any particular tract, that knowledge being deep underground.

The present case has to be disposed of on the assumption that at the time the reservation in question was made there was oil and gas underground, precisely in tlié same way that there are solid minerals in a case where a reservation is made of solid minerals. Of course, if a reservation is made of the oil and gas under the ground, and there happens to be none, the reservation will go for naught. And, if a sale is made of the oil and gas underground, the sale will have to be held to be conditional upon there being oil and gas. We are not concerned with those questions in this case. But it is instructive and illuminating to consider that, under our Code, no question can arise on the point that a sale of the hope of eventually finding and getting oil and gas out of the ground may constitute the subject of a sale. The Code is express on that point:

“Art. 2451. It also happens sometimes that an uncertain hope is sold; as a fisher sells a haul of his net before he- throws it; and, although he should catch nothing, the sale still exists, because it was the hopo that was sold, together with the right to have what might be caught.”

Parties not knowing whether oil and gas will ever be found under the land may validly sell the hope of their being found, “together with the right to have” them should any ever be found. Why, it may be asked, may they not sell the oil and gas which they know is underground? And, if they may sell them, why may they not reserve them from a sale of the rest of the land?

I conclude that oil and gas underground are subjects of ownership, and may be sold like other things, and may be reserved fi;pm a sale of land; and I pass to the question of whether the reservation made by the Sailing heirs in the act of sale to the Frosts was of the oil and gas themselves, or merely of a right to explore and take.

However, before proceeding further, I think I ought to say a word in explanation of my attitude on the first hearing of this ease. I was then under the firm impression that this court was thoroughly committed to the doctrine of nonownership of oil and gas in place, so that there was nothing to do, under our jurisprudence, but to accept the conclusion that the sale or reservation of these minerals could only carry a servitude. Why I did not then test the correctness of that impression by a reference to the decisions is a matter which I am free to confess I am at a loss at present to account for, except that the said impression was so strong that, after I had read the report made by Mr. Justice O’NIELL, confirming it, I must have thought that to review the past decisions would be to employ uselessly time much needed on other points and in other cases. I had originally dissented from that doctrine (in the cases of Wadkins v. Atlanta & Shreveport Oil Co., Rives v. Gulf Refining Co., and Cooke v. same, supra), and had not individually become reconciled to it, though I had yielded my individual convictions upon it in Hanby v. Texas Co., supra. In the present concurring opinion I am therefore but expressing views which individually I have entertained all along.

Having shown hereinabove, as I believe, that the reservation may have been of the *813ownership, I now pass to tlie question of whether or not it was in fact such.

Apparently it was not, but only of the right to explore and take; for the language of the act of sale with reference to the solid minerals is that they are reserved, whereas, with reference to the oil and gas, it is that “the exclusive right to enter upon the land and bore,” etc., is reserved. But, inasmuch as the reservation, if it had been only of the right to explore and take, would have been a mere servitude, terminable in 10 years by prescription for nonuse, and, in fact, a mere usufruct, terminable with the life of the Sailings, and the parties could not possibly have intended any such thing as this, the conclusion must be that what was reserved was the ownership.

If the right thus reserved was not an ownership, it was a servitude. To that extent I agree with plaintiff’s learned counsel, because, for classifying the right thus reserved, the choice lies between ownership and servitude. There is no other alternative. It will not do to say, in a vague and general sort of way, that this right was a real right, and stop there: for a real right such as this, if not an ownership, is a servitude, and can be nothing else.

Articles 647 and 533 of the Code define servitude and usufruct as follows:

“Art. 647. A real or predial servitude is a charge laid on an estate for the use and utility of another estate belonging to another owner.”

“Art. 533. Usufruct is the right of enjoying a thing, the property of which is vested in another, and to draw from the same all the profit, utility and advantages which it may produce, provided it be without altering the substance of tlie thing.”

These definitions describe exactly the right reserved by the Sailings. For, if the reservation was not of the ownership, it was of a right to enjoy a thing the property of which was .vested in another, and it was a charge upon this property. This right, if not an ownership, was therefore a servitude, and a usufruct. Names do not change the substance of things. Calling this right by its generic name of real right, or giving it any other name, would not change its nature. It would continue to fall exactly and precisely within the definition of a usufruct, and bo a usufruct, and nothing else.

Now the Code (article 606) provides that “The right of the usufruct expires at the death of the usufructuary,” and (article 612) that, if granted to “corporations, congregations or other companies, which, are deemed perpetual it lasts only thirty years.”

Mareadd, commenting on article 617 of the Code Napoleon, which reads, “Usufruct is extinguished by the death of the usufructu-ary,” says:

“Usufruct often ends before the death of the usufructuary, but it can never go beyond, and cannot be transmitted to his heirs. And necessarily so; its effect, being while it lasts to destroy the ownership (for the reason that ownership, when separated from the right to enjoy, has no longer any value except from the prospect and expectancy of the future extinction of the usufruct), could not be allowed to be perpetual or of too long duration. Hence the Code, conformably with the principles of the antecodal jurisprudence and of the Roman law, authorizes it only for the duration of the life of the usufructuary. The usufruct which should be constituted in favor of a person and Ms heirs would none the loss be restricted to the life of this person.”

Tbe commentator goes on to explain that a usufruct can be constituted only in favor of a living person, not in favor of persons yet unborn.

Mourlon, on article 617, says:

“This cause of the extinction of the usufruct does not have its foundation in the presumed intention of the parties; it has its foundation in the very nature itself of the right of usu-fruct. The law has wished that it should be essentially temporary, and not transmissible to heirs, in order that it should not render the naked ownership a vain and useless right in the hand of the naked owner.”

*815This court held, in Declouet v. Borel, 15 La. Ann. 606 (quoting syllabus):

“A clause, in an agreement establishing a usufruct, by which it is provided that such usufruct shall be hereditable, must be considered as not written.”

It is said that this decision is founded on the Spanish law. But the language of the court shows differently:

“Under the Spanish law,” says the court a usufruct “terminated at the death of the usu-fructuary, as under our own law.”

Indeed, this principle, far from being peculiar to the Spanish law, lias been fundamental from the origin of the law of usufruct:

“Einitur autem usufructos morte fructuarii.” “.Usufruct however comes to an end with the death of the usufructuary.” Institutes of Justinian, book II, tit. IV, par. 3. 1

That usufruct necessarily expires with the usufructuary, and cannot, even by contract, be made to last longer, see 10 Demolombe, No. 248; 6 Laurent, No. 352; 2 Aubry and Rau (5th Ed.) No. 228; Bandry, Lacantinerie et Chauveau, Usufruct, No. 444; Dallox, Juris. Gen. v. Usufruct, Nos. 103 and 105.

Art. 758 of thp Code reads:

“Art. 758. When the right granted is merely personal to the individual, it expires with him, unless the contrary has been expressly stipulated.”

Usufruct is a personal servitude, and apparently, therefore, this article allows a usu-fruct to be stipulated for a time beyond the life of the usufructuary. But such is not the case. This article has reference to personal servitudes in general, and not to usufruct, which is governed by the special provision of article 606.

If, then, what the Sailings reserved was a servitude, it was a usufruct, and, as such, terminable" with their lives, and, so far as I know, proportionately with the life of each one of them, so that, if all of them had happened to perish ten minutes after the signing of the act .of sale, the right would have perished that soon.

But, if I am mistaken in this, and the only infirmity of the reservation lay in its liability to become extinguished for nonuser within .10 years, the situation is not changed, since the fact remains none the less patent that the parties did not intend that the reservation that was being made should be of a right to be exercised within 10 years under penalty of extinguishment, but manifestly intended that the Sailings should continue to own the oil and gas, and should continue so to own them indefinitely — that is to say, perpetually — without being under any limitation whatever as to the time within which to take them. It was not known that there were any minerals, and the reserve meant simply, and no more than, that, if at any time in the near or in the distant future minerals should be discovered under the land, they should belong to the Sailings. At that time there were no oil operators in that country, and no one was contemplating that any exploration (with its attending certain heavy expense and problematical success) would be undertaken in the near future. The Sailings surely were fiot contemplating any exploration, and they can hardly be supposed to have reserved a right terminable in 10 years which they had no idea of being able to exercise within that time.

This being so plain, I do not suppose there can be any necessity of enlarging upon it. In fact, I do not understand counsel as .contending that the parties did not intend that the right reserved should be perpetual- — but that, intending to reserve a perpetual right, they in fact reserved only a prescriptible one.

The intention of the parties having been to reserve a perpetual right, I think this inten-' tion must be given effect, for, in the matter of contracts, the intention of the parties is what governs. It is the law of the parties, and, if they bring their case before the courts, it is the law of the case¡

*817The intention of the parties to a contract is to be gathered primarily from the wording of the contract; but the wording is merely a means of making known the intention, of serving as evidence of it, and the peculiarity of the wording becomes insignificant if the intention is otherwise definitely ascertained.

In this case the intention that the Sailings should continue to be the owners of the minerals, including the oil and gas, is unmistakable; no doubt at all is possible in the matter.

The difference in the phraseology of the two reservations becomes insignificant in the presence of the patent fact, which stares us in the face, 'that the intention of the parties was that the Sailings should continue to own all the minerals — oil, gas, and all — during their natural life, and transmit same to their heirs, without any necessity on their part to do any exploitation for preserving this ownership.

Learned counsel say that the only right which the Sailings had with reference to the oil and gas was to bore for and take them, and that, having no greater right than this, they could reserve no greater; so that, even if the act of sale had by its terms reserved the oil and gas themselves, and not merely the right to bore for and take them, the effect of the reservation would have been the same; the reservation would still have been merely of a real right upon the land, or, in other words, of a servitude.

No doubt, if the only right the Sailings had with reference to the oil and gas was to bore for and take them, they could reserve no greater right than this; but the fact of the matter is that they had a greater right than this; they had the perfect ownership of the oil and gas, as I have undertaken to demonstrate hereinabove.

The right to operate for the oil and gas was necessary ,to carry into effect the reservation made of the oil and gas,- and therefore the reservation carried with it this right. This incidental right was expressly reserved in the act of sale; but, if no mention had been, made of it, the legal situation would have been exactly the same, because the law would have read it into the contract, as a necessary incident to the' reservation. This has been held in other states in the following cases: Ramey v. Stephney (Okl.) 173 Pac. 72; Curtiss v. Chartiers Co., 88 Ohio St. 594, 106 N. E. 1053; Chartier Coal Co. v. Mellon, 152 Pa. 286, 25 Atl. 597, 18 L. R. A. 702, 34 Am. St. Rep. 645—and may be said to be statutory law in this state.

“Art. 1903. 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.”

The fact of this right having been expressly reserved in the contract adds nothing to the legal situation, and detracts naught from it, at any rate as between the Sailings and the Frosts, the parties to the contract, if the things reserved are considered as movables.

The situation, then, is that the Frosts contracted that the Sailings should be owners of this oil and gas, and should have the right to remove them, and, necessarily, to exercise the latter right in the manner sanctioned by “custom.” Article 1903, supra. And the question is, What prescription, if any, is applicable to these rights thus vested by contract in the Sailings?

If, as contended by learned counsel of plaintiff, the effect of the reservation was to legally separate the oil and gas from the land, and thus mobilize them by anticipation, the situation was that within the land of the Frosts were some movables belonging to the Sailings which the Frosts had contracted the Sailings should have the right to take, and no time specified within which this right should be exercised.

*819Learned counsel cite decisions to the effect that trees sold for removal become movables, being mobilized by anticipation, and find complete analogy between such a case and that of oil and gas sold separate from the land, or reserved from a sale of the land. It may be this complete analogy does exist. But counsel go on and say that in such a case the right to remove the trees, if not exercised within a reasonable time, is ipso facto forfeited.

If so, on the question of what a reasonable time for the exercise of a reservation of oil and gas in an unproven field should be 100 years would come nearer the mark than 10.

But the rule is not that failure to exercise the right to remove trees within a reasonable time imports forfeiture. Certainly, where in the contract of sale a time limit has been fixed for the exercise of the right, this stipulation of the contract is the law of the case, and controls. And the doctrine of St. Louis Cypress Co. v. Thibodeaux, 120 La. 334, 45 South. 742, cited by learned counsel, goes no further than this.

The rule is, on the contrary, that, if trees are purchased for being removed, and no time has been fixed for their removal, and the parties cannot agree upon it, the owner of the land must apply to the courts to fix it. Shepherd v. Davis Bros., 121 La. 1011, 46 South. 999. But, as a matter of course, the courts enforce the contract as they find it, and therefore fix the time limit according to what was within the contemplation of the parties, and allow the time to be perpetual if such was the contemplation of the parties. 25 Cyc. 1553; 17 R. C. L. 1082.

As between the Sailings and the Frosts, there could be no question of servitude, but only a question of a contract binding the Frosts personally to allow the Sailings to take the oil and gas. No doubt, the right to go upon the land for taking the oil and gas was a servitude, but this right existed only as an incident to, or consequence of, the personal obligation of the Frosts; the cause of its existence was the obligation of the Frosts to allow the oil and gas to be taken, and, so long as this cause continued to operate, so long the effect- of this cause — the right to go on the land — resulted and existed,

Using the same illustration of trees having been sold: The right to go upon the land for taking the trees would be a servitude, but it would be a servitude resulting from the personal obligation of the owner of the land to allow them to be taken, and, so long as this personal obligation continued to exist, so long would the servitude continue. The cause generative of the servitude would bo operating constantly — -constantly creating the servitude — thereby keeping it alive so long as the personal obligation lasted.

A servitude is a debt which the land owes. It is not possible to prevent prescription from running on this debt by agreement, because the benefit of prescription cannot be re-nouneed in advance. C. 0. art. 3460. If parties agree that prescription shall not run on the obligation which they are creating, the agreement stands as if not written. Therefore if, in the case of a sale of trees, the servitude for the removal of the trees did not result from the personal obligation to allow the trees to be removed, it would prescribe in 10 years (it being a discontinuous servitude), no matter what might be the time limit fixed in the contract for the removal of the trees. So that, although the purchaser had been accorded 20 years within which.to remove the trees, his right to go upon the land for removing them would prescribe in 10 years, and with it, necessarily, would go his right to the trees, although some courts have sanctioned, I believe, the legal monstrosity of the purchaser in such' a case owning the trees without the right to take them or to compel the owner of the land to deliver them or suffer them to be taken.

*821On the assumption of the- Frosts having contracted that the Sailings should continue to own the oil and gas, and of these minerals having been thereby mobilized, the situation would not be different from that where the seller of a plantation had reserved from the sale some movables on the plantation — say the mules, or a pile of lumber or bricks, or a house without the ground upon which it stood. In such a case the situation would be that the purchaser of the plantation would-have in his .possession certain movables not belonging to him, and which he would therefore be under the personal obligation to either deliver to the owner or suffer the owner to take. On this obligation the prescription liberandi causa could not .run, for, so long as the movables continued not to belong to this possessor of them, so long would the obligation to suffer the owner to take them continue. The only prescription that could operate in such a case would be that acquirandi causa, and it could be set a going only by the legal beginning of a possession as owner. Such a possession the purchaser of the plantation could start on its course only by conveying actual notice to his vendor that, from now on he would hold the movables as owner. Without such notice his possession would continue to be precarious if it lasted a thousand years.

So much for the legal situation if the oil and gas are deemed to have been mobilized by anticipation.

If they have retained their quality of im-movables, as being parts of the soil, the im-prescriptibility of the right or servitude to operate upon the surface for taking them is equally plain. There would then be two im-movables, or estates, situated one above the other — the lower of no use or value whatsoever without a servitude of passage or operation for oil and gas upon the upper. Between the legal situation of such a lower estate and that of an enclaved estate, the analogy would be complete, and therefore all the provisions of the Code with reference to enclaved estates would be applicable. These provisions are that the enclaving estate owes a servitude of passage (article 699) and that this servitude is imprescriptible (article 78o).

“The right of passage is in itself imprescrip-tible. It suffices that the enclavemeht exist for the right to be acquired, and for the thirty year prescription not causing the loss of it.” Fuzier-Hermann, Repertoire du Droit Français, Vo. Enclave, No. 186, citing Delvincourt; Marcadé; Demolombe; Aubry and Rau; Baudry, Lacantinerie et Chauveau; Gavani de Campile.

Domat, Les Lois Civiles, Liv. 1, tit. XII, § 1, says:

“This necessity makes law; it is of natural right that an estate do not remain useless, and that one owner should allow to his neighbor what he himself in the like situation would desire should be accorded to him.”

It is this necessity which governs and regulates the situation. The extent of the servitude is therefore measured by the extent of the necessity. And it is that idea which has dictated article 762 of the Code. Speaking of the passage which article 699 has provided the enclaving estate should have to allow to the enclaved estate, article 702, says:

“Art. 702. A passage must be furnished to the owner of the land- surrounded by other lands, not only for himself and workmen, but for his animals, carts, instruments of agriculture, and everything which may be necessary for the use and working of his land.”

The law could not foresee what things might eventually turn out to be “necessary for the use and working of the land”; hence the couching of the provision in these general terms. The idea is that the enclaving estate must allow to the enclaved -estate all that may be necessary for the working of the enclaved estate. This servitude would, of course, have to be exercised with due regard to the consideration which neighbors *823owe to each other, and without prejudice to the upper estate, save in so far as may be absolutely required for the use of the lower estate according to equity and custom.

The sale of a tract of land does not carry with it the ownership of movables belonging to a third person which happen to be on or in land. The .purchaser would have to allow these movables to be taken by their owner. On the assumption that the oil and gas were movables at the time of the sale to the Frosts, the Frosts would have to allow the Sailings to take them, and, necessarily, to allow the surface of the land to be used for that purpose. The most the Frosts could require would be that equitable indemnification be made for this use of the surface. Prescription liberandi causa could not apply. For, so long as the Frosts, had on their land movables not belonging to them, they would be under the obligation of allowing the owner of these movables to take them. The prescription acquirandi causa is not pleaded, and, moreover, could accrue only if the possession of the surface carried with it possession of the oil and gas underneath, qua movables, and tire authorities cited in the briet of the learned counsel for plaintiff would seem to show that it does not.

Whether the oil and gas were movable or immovables, therefore, the Sailings were entitled to have them, and. to have the use of the surface for that purpose, and the assertion of that' right was not a slander of plaintiff’s title to the land; and these suits in slander of title have to be dismissed.

Oil and gas were unknown as subjects of ownership at the time of the adoption of our Code. How far, therefore, that kind of property would be subject to a strict application of the provisions of our Code may be a question. It would seem that a sale or reservation of these minerals might with equal show of reason be construed into a sale or reservation, either of the minerals separately from the land, or of the stratum containing them. If the contemplation of the contract was of a perpetual right, the construction of it might have to be that the bearing stratum was the thing sold or reserved; if, on the other hand, there was a limitation of time for removal, the construction would seem to have to be that the sale or reservation was of the minerals separate from the land. But that point need not be decided in this case, as on either construction in this case the decision must be against plaintiff.