(dissenting from the opinions submitted by the Chief Justice and by Mr. Justice PROVOSTY on rehearing). With great respect I say I do not find either in the opinion submitted by the Chief Justice or in the opinion submitted by Mr. Justice PROVOSTY, a sufficient reason for a reversal of the opinion and decree which we handed down in this case and in the companion case entitled Frost-Johnson Lumber Co. v. Nabors Oil & Gas Co. (No. 22183) 88 South. 723,1 a year and four months ago. When we rendered the opinion and decree in these cases, we had had them under consideration nearly a year. Separate opinions had been written and submitted by three members of the court before we adopted the opinion which was then handed down. The case had even been reopened for further-argument, because the Chief Justice had not heard the original arguments; and we allowed unlimited time for argument on the second hearing of the case. The decision was therefore the result of more careful study and longer deliberation than has ever been given to any case that has come before this court, as far as I know.
The opinion .and decree handed down in these cases a year and four months ago was only an affirmance of a doctrine which had been thoroughly established in the jurisprudence of this court; that is, that oil and gas, *825while at large beneath the surface of the earth, are not subject to ownership, as physical or corporeal property, separate1 and apart from the land itself. It has been as well settled as any proposition could possibly be settled by the repeated decisions of this court — -and there is not a decision to the contrary — that a contract purporting to sell or to reserve from a sale of a tract of land the oil and gas running at large beneath the surface, or supposed to be there, does not convey or reserve ownership of the physical or corporeal property in the oil or gas, separate and apart from the ownership of the land itself, but creates only a real right or servitude upon the land, to drill and explore for the oil and gas and to become the owner of such oil and gas as may be found and reduced to possession.
I cannot imagine a more important rule of property, the reversal of which could cause such grave injustice, than this rule of property which is so thoroughly established by the jurisprudence of this court. It is very probable that large investments have been made upon the faith of the well-settled rule of this court that a sale or reservation of the oil or gas beneath the surface of a tract of land conveys or reserves only a real right or servitude upon the land, which is extinguished by the prescription of 10 years if not exercised within that time.
The identical question presented in this ease was presented to this court in Wadkins v. Atlanta & Shreveport Oil Company, decided in 1913. In that case it was held, in an opinion delivered by the then Chief Justice, concurred in by the present Chief Justice and by one of the present associate justices, that the reservation of the oil, gas and mineral deposits in an act of sale of the land was a reservation, not of the ownership of the mineral oil and gas themselves, but of a real right or servitude upon the land, in favor of the seller, and that the servitude was lost by the prescription of 10 years, because it had not been exerbised within that time. The decision was not published officially, because a rehearing was granted, and, while pending on rehearing, the suit was settled by a compromise agreement between the parties. The decision, however, is as authoritative as is any other-decision rendered by this court, because it has been cited with approval and as authority by this court many times, and it has never been overruled or disapproved.
In Rives v. Gulf Refining Co., 133 La. 178, 62 South. 623, by Mr. Justice Sommerville, citing Wadkins v. Atlanta & Shreveport Oil & Gas Company, and the decisions of the courts of several other states, it was said:
“Oil and gas, while in the earth, are not the subject of ownership distinct from the soil; and a grant of the oil and gas therefore is a grant, not of the oil or gas that is in the ground, but of such part as the grantee may find, and passes nothing except the right to explore for the same under the terms of such contract.”
In Cooke v. Gulf Refining Company, 135 La. 616, 65 South. 758, by Mr. Justice Sommerville, from whose opinion there was no dissent, it was said:
“That oil and gas in their natural state, under the surface of the ground, are not owned by the owner of the land, is held in a long .line of decisions. Wadkins v. Atlanta & Shreveport Oil & Gas Company (No. 19315), not for publication; Rives v. Gulf Refining Company, 133 La. 178, 62 South. 623; Ohio Oil Company v. Indiana, 177 U. S. 190, 20 Sup. Ct. 576, 44 L. Ed. 729; Brown v. Spilman, 155 U. S. 665, 15 Sup. Ct. 245, 39 L. Ed. 304; Westmoreland Gas Company v. De Witt, 130 Pa. 235, 18 Atl. 724, 5 L. R. A. 731.”
In Elder v. Ellerbe, 135 La. 995, 66 South. 337, by the present writer, concurred in by every member of the court, it was said:
“In the case of Rives v. Gulf Refining Company, 133 La. 178, 62 South. 623, oil and gas beneath the surface of the earth, and not confined within a pipe or casing, were decreed to be a part of the realty, not subject to ownership separate from the land.”
*827In Strother v. Mangham, 138 La. 437, 70 South. 426, a contract of sale purporting to “grant, bargain, sell, convey and deliver all of the oil [and] gas” under a tract of land described in the deed and belonging to the seller was held to be, not a conveyance of the oil. and gas themselves, but a conveyanee of only the right to the oil and gas that might be found and reduced to possession. The plaintiff in that case was the owner of the land, who had made the sale of the oil and gas; and his suit was to annul the sale on the ground that the oil and gas beneath the surface of the land were not subject to separate, ownership, and therefore could not be sold separate and apart from tlie land itself. The court acknowledged the correctness of plaintiff’^ contention that the oil and gas were not subject to ownership -separate and apart from the land itself, and that therefore the sale did not convey ownership of the oil and gas. But the court held that such a sale, purporting to convey title to the oil and gas, in reality conveyed only a real right or servitude upon the land. In the opinion delivered by the Chief Justice and concurred in by every member of the court it was said:
“The doctrine that the owner of land has no property right in the oil and gas beneath the surface until he has reduced it to possession in no manner .denies to such owner the exclusive right to the use of the surface for the purpose of such reduction, or for any other purpose not prohibited by law, but, to the contrary, concedes that right, as inherent in the title to the land, and subject only to the control of the state, in the exorcise of its police power; and the right may be sold, as may be any other right, and may carry with it the right to the oil and gas that maj’ be found and reduced to possession. Ohio Oil Company v. Indiana, 177 U. S. 190, 20 Sup. Ct. 576, 44 L. Ed. 729; Rives v. Gulf Refining Co., 133 La. 178, 62 South. 623; Losecco v. Gregory, 108 La. 648, 32 South. 985; Queensborough Land Co. v. Cazeaux, 136 La. 724, 67 South. 641.”
In Saunders v. Busch-Everett Company, 138 La. 1049, 71 South. 153, a contract purporting to sell “all of the oil and gas in and under” the land of the seller was held to confey, not ownership of the oil and gas themselves, but merely the “right to explore for the oil and gas” and to become the owner of such oil and gas as might be found and reduced to possession. In the opinion delivered by the present Chief Justice and concurred in by every member of the court we undertook to put this important question at rest, once and for all, in this vigorous language:
“It has been held by this court, after mature deliberation (and we find no reason for changing our opinion), that:
“ ‘Oil and gas while in the earth are not the subject of ownership distinct from the soil; and the grant of the.oil and gas therefore is a grant, not of the oil or gas that is in ground, but of such part as the grantee may find, and passes nothing except the right to explore for the samé under the terms of such contract.’ Rives et al. v. Gulf Refining Company of Louisiana, 133 La. 178, 62 South. 623.
“In the more recent case of Strother v. Mangham, 70 South. 426, ante, page 437, No. 21436 of the docket of this court, it was said:
“ ‘The doctrine that the owner' of the land has no property right, in the oil or gas beneath the surface until he has reduced it to possession in no manner denies to such owner the exclusive right to the use of the surface for the purposes of such reduction, or for any other purpose not prohibited by law, but, to the contrary, concedes that right, as inherent in the title to the land, and subject only to the control of the state, in the exercise of its police power; and the. right may be sold, as may be any other right, and may carry with it the right to the oil and gas that may be found and reduced to possession.* ”
In Hanby v. Texas Co., 140 La. 190, 72 South. 933, by the present Chief Justice, ii was again held, that a contract purporting to sell the oil and gas “supposed or hoped to be found beneath the surface of a particular tract of land” did not convey title to the. oil or gas themselves, but-conveyed only the real right or servitude to explore the .land in search of those minerals and to become the owner of such as might be found and reduced to possession. It was said:
*829“Conceding that the sale of an interest in the oil or gas which may he discovered beneath the surface of a particular tract of land conveys no title to any specific oil or gas, it nevertheless carries with it the right to make use of the surface of the land for reduction to possession of the oil or gas that may be found; and, in fact, the right last mentioned is alone conveyed in such ease, 'since it is the only right, with respect to those fugitive products, that the owner of the land himself can he said to possess. That right, however, he does possess, since it is a right of use, or of enjoyment, and hence a constituent of his title to the land, and, so possessing, he may dispose of it, since the three things, usus, fruetus, and abusus, forming, in conjunction, full ownership, may be separated, and the title dismembered, and in that event the rights respectively resulting from such dismemberment retain the nature of the thing upon which they bear as though no dismemberment had occurred.” (The italics are mine.)
In Higgins Oil & Fuel Co. v. Guaranty Oil Co., 145 La. 233, 82 South. 206, 5 A. L. R. 411, by Mr. Justice Provosty, it is said in riie syllabus:
“An owner of land does not own the fugitive oil beneath it and cannot complain that it is being drawn off by a pump sunk by an adjoining landowner.” ,
In the case last quoted plaintiff and defendant were, respectively, the lessees of adjoining tracts of land. Plaintiff had a well that was producing about 124 barrels of oil a day, by means of a standard pumping rig. Defendant sunk a. well on the adjoining (ract, about 400 feet from plaintiff’s well. Defendant’s well was a nonproducer and was abandoned. The open i>ipe admitted air into the underground regions and thereby greatly reduced the suction power of plaintiff’s pump. It was discovered that, by closing the pipe on the abandoned well on defendant’s land, the suction capacity of plaintiff’s pump was restored. There was, therefore, no doubt that plaintiff was drawing the oil from defendant’s land when defendant’s pipe was closed, and was drawing air through defendant’s pipe when it was open. Under these circumstances, this court maintained the right of plaintiff to compel defendant, by a mandatory injunction, to close the well on defendant’s land and allow plaintiff to draw the oil therefrom. In the course of the opinion it was said:
“Defendant does not contest the right of plaintiff to get out of its land all the oil it possibly can, and by moans of a well, but contests plaintiff’s right to do this by means of a pump, because a pump sucks the oil from under-defendant’s land. The argument is that plaintiff may appropriate the oil passing from defendant’s land to' plaintiff’s, provided the oil passes, or flows, from the one tract to the other ‘naturally,’ that is, by gravity, and not as the effect of the use of artificial means.
“So far as artificiality is concerned, we do-not see the difference between a well and a pump; both are artificial; both cause the oil to flow from the neighbor’s land; and both produce that effect by creating a vacuum which the oil from the neighbor's land comes in to fill. In both cases the oil flows from the neighbor’s land by gravity. The fact that some of the oil which plaintiff’s pump is producing may come from defendant’s land can make no difference; for in the case of a flowing well so close to the boundary lino that one-half of its production would to a reasonable certainty be-known to be coming from the adjoining tract the owner of this tract would hardly, we imagine, claim either the ownership of one-half of the oil or the right to close the well; and the. reason would be that an owner of land does not own the fugitive oil beneath it so as to-have the right to follow it after it has left his-land.”
The opinion last quoted, was banded down less than a month after the present case and the companion case of Frost-Johnson Lumber Co. v. Nabors Oil & Gas Co. were argued and submitted for decision. The three cases, each presenting the question whether the-owner or lessee of the surface estate actually owned the mineral oil and gas beneath the-surface, were all under consideration by the court at the same time. This case and that of Frost-Johnson Lumber Co. v. Nabors Oil & Gas Co. were argued on the 8th and 9th of May, 1919, and were then submitted for decision. The question presented was of such vast importance, because the .jurisprudence-*831had already established the rule of property affecting such enormous values, that the court allowed the attorneys unlimited time for oral argument, and their arguments consumed two days. Nineteen printed briefs, containing more than 400 pages, were filed by the attorneys on both sides and by others who appeared as amici curise. The decision in the case of Higgins Oil & Fuel Co. v. Guaranty Oil Co. was rendered on May 5, and a rehearing was denied on June 2, 1919. The author of the opinion in that case therefore had the benefit of the extensive arguments made and voluminous briefs filed in this and the other Frost-Johnson Case, and had the review Of our jurisprudence fresh in mind, when he wrote the opinion in Higgins Oil & Fuel Co. v. Guaranty Oil Co. At the request of the attorneys on both sides of this and the other Frost-Johnson Case, the two cases were reopened for further argument, because the Chief Justice was not present when the cases were first argued. They were reargued on December 2, 1919, and the decisions were handed down bn January 5, 1920; that is, a year and four months ago.
A review of the jurisprudence does not disclose, a decision by this court contrary to the long list of decisions cited in our original Opinion. Mr. Justice PROVOSTY intimates in his concurring opinion in this case that a contrary doctrine was announced in the case of De Moss v. Sample, 143 La. 243, 78 South. 482, and in Calhoun v. Ardis, 144 La. 311, 80 South. 548, and by this court’s refusal of a writ of review in the case of Bradford v. Williams, decided by the court of appeal in June, 1916.
Our declining to issue a writ- of certiorari or review or othe.r supervisory writ in a case decided by a court of inferior jurisdiction is never regarded as affirming the decision upon its merits. It often happens that! our refusal to issue such writs is because of an omission of the applicant to observe some rule of the court with regard to the affidavit to be made or documents ’to be annexed to the petition. And we very often refuse to exercise our supervisory jurisdiction in cases in which we would have decided otherwise if we had had appellate jurisdiction, provided that the court that rendered the decision was vested with jurisdiction and allowed due process of law. Our refusal to issue a writ of certiorari or review, or other supervisory writ, in any case, is nothing more than a refusal to entertain jurisdiction of the case. It is no more an expression of opinion on the merits of the case than a judgment dismissing an appeal. The refusal to issue a writ of certiorari or review in Bradford v. Williams was not intended as a departure from the doctrine so thoroughly established by the jurisprudence of this court. If the decision in that case and in the case of De Moss v. Sample and in the case of Calhoun v. Ardis were contrary to the long line of decisions which I have quoted, they ought to be regarded as having been overruled by th ¡ later decision handed down by Mr. Justice Provosty in Higgins Oil & Fuel Co. v. Guaranty Oil Co., and by the decision subsequently handed down in the present case, and in the companion case, Frost-Johnson Lumber Co. v. Nabors Oil & Gas Company.
It is unreasonable, however, as was pointed out in the original opinion in this case, to say that the decision in De Moss v. Sample or in Calhoun v. Ardis was contrary to the otherwise well-established jurisprudence of this court upon the subject of ownership of oil and gas. In neither of those cases was the question presented for decision. In each case the question was, simply and solely, whether a grantor of a tract of land could validly reserve to himself the exclusive right to explore for oil and gas. The contention of the purchaser of the land was that the reservation of the right to explore for oil and gas was not valid, because the deed did not contain the statement that a consideration was paid for the reservation. Of course, *833there was no merit whatever in the contention, and it could have been disposed of by the simple statement that it was not necessary that the seller should pay a consideration for what he had already bought and paid for and was not then selling.
In De Moss v. Sample the reservation in contest was of “the oil, gas and mineral rights In and to the said described property, * * * such right to be exercised with as little damage as possible in the operation thereof,” etc. There -was no dispute that the words “oil, gas, and mineral rights” merely described the rights -which were reserved. The writer of the opinion used the expression “minerals” and “mineral rights” indifferently, as if they were synonymous terms, because the question whether they were synonymous terms was not at all relevant to the issue before the court and was not thought of. The opinion was written by Mr. Justice Sommerville, who had also written the opinion in Rives v. Gulf Refining Company, 133 La. 178, 62 South. 623, and in Cooke v. Gulf Refining Co., 135 La. 616, 65 South. 758, quoting with approval Wadkins v. Atlanta & Shreveport Oil & Gas Company, and Ohio Oil Co. v. Indiana, 177 U. S. 190, 20 Sup. Ct. 576, 44 L. Ed. 729. It is quite certain that Mr. Justice Sommerville did not intend to overrule his previous decisions on this subject, because he cited them with approval, and quoted also with approval Hanby v. Texas Co., 140 La. 189, 72 South. 933, in which the Chief Justice had quoted with approval the two previous decisions handed down by Mr. Justice Sommerville. And he, in turn, after-wards concurred in the opinion handed down by Mr. Justice Provosty in Higgins Oil & Fuel Company v. Guaranty Oil Company. It is therefore quite unreasonable to believe that Mr. Justice Sommerville intended that any expression of his in De Moss v. Sample should be regarded as overruling his previous decisions on this important subject.
The opinion in Calhoun v. Ardis was Written by Mr. Justice Leche, who was serving pro tempore to fill a vacancy' caused by the' death of Mr. Justice Land. The decision merely affirmed the ruling in De Moss v. Sample. In Calhoun v. Ardis, the grantor of the land had merely reserved “all the mineral rights under said property with the right of entry upon said .property for the development of same.” The reservation isl quoted in the opinion. Hence it could not have been decided, and in fact it was not contended, that the grantor of the land had reserved the ownership of the oil and gas. The only issue that was presented or decided is stated in the opinion thus:
“Plaintiff states that there was no consideration passed from Ardis to himself for the mineral rights which the former retained under the cited clause of the act of sale.”
1 have taken the trouble to examine the pleadings in the record of the case of Calhoun v. Ardis, in the archives of this court, and I find that in article IV of his petition Calhoun alleged that the reservation made by Ardis was in the following language, quoted in the petition, viz.:
“It is further agreed and understood that the vendor herein retains all the mineral rights under said property and with the right of entry upon said property for the development of same.”
I also find that in paragraph IV of his answer to the suit Ardis answered the allegation in the corresponding article of Calhoun’s petition thus:
“In answer to this paragraph of plaintiff’s petition, your respondent admits that he retained the mineral rights in and under said property, in said deed, by the clause from same copied in said paragraph.”
It is therefore wrong to say that this court decided in Calhoun v. Ardis or in De Moss v. Sample that the grantor of a tract of land could reserve the ownership of the physical or corporeal property in the oil and gas separate from the ownership of the land itself. *835The question was not at issue in either case, and therefore could not have been decided in either case. The use of the word, “minerals” by the authors of those opinions as if the word were synonymous with the expression “mineral rights” was only a lapsus, of no importance whatever, on the part of the authors of those opinions. I cannot possibly understand why this court should now cite De Moss v. Sample or Calhoun v. Ardis as cases in which this important question was decided, in view of the fact that the question was not propounded in either of those cases. If the question had been presented, we would have been compelled to either affirm or overrule the long line of decisions which we had rendered in cases in which the question had been squarely presented and deliberately decided.
Except for the question of prescription, the question whether the owner of a tract of land owns the physical or corporeal property in the oil and gas running at large beneath the surface, or owns merely the exclusivo right to drill and explore for the oil and gas and to become the owner of such oil and gas as he may find and reduce to possession, is-a matter of no importance whatever. It was so treated or ignored in tlte case of De Moss v. Sample and in Calhoun v. Ardis. Except1 for the question of prescription, the ownership of the exclusive right to drill and explore for oil and gas and to become the owner of all oil and gas that may be found and reduced to possession on the''land of another person is the same as the ownership of the oil and gas funning at large beneath the surface of the land of the other person. I imagine, therefore, that laymen who have road the newspaper comments upon the importance of the case now before us, and who are not aware of the question of prescription, are apt to recall the familiar lines of the famous stenographist, Byron, “Strange all this difference should be ’twixt tweedle-dum and tweedledee.”
But the question is indeed an important one, with reference to the plea of prescription. A reversal of the rule of property on this momentous subject would inflict serious loss upon all investors who have relied upon the many decisions of this court, which were regarded as having settled the question finally. Investors who have relied upon the consistent rulings of this court that all that can be bought or reserved with regard to oil and gas is the real right or servitude to drill and explore for them, and who have therefore bought or reserved such real right instead of buying or reserving the oil and gas themselves, will suffer the loss of their right by 10 years’ prescription. Investors who have acted contrary to the jurisprudence of this court and who have bought or reserved the oil and gas themselves, supposed to be under the land of another person, will be rewarded by having sSmething which they can never lose by prescription, even though they may nqver see fit to exercise their right. There can be no doubt about that, because the merii-bers of this court are yet unanimous in their opinion that a sale or reservation of the exclusive right to drill and explore for oil and gas in or under the land of another person creates only a servitude, which is lost by the prescription of 10 years, if not exercised within that time.
A reversal of our jurisprudence on this subject would have even a worse effect than I have yet mentioned. It would seriously endanger the validity of our conservation laws on the subject of oil and gas, our severance taxes, and the contemplated laws to forbid or regulate the manufacture of carbon black from natural gas. It has been decided by the Supreme Court of the United States, inferentially, if not expressly, that the Legislature of a state in which the court of last resort recognizes a right of private ownership in oil and gas running at large or supposed to be beneath the surface of the earth; is forbidden by the Fourteenth Article of *837Amendment of the Constitution of the United States to enact a law interfering with the. right of the owner to dispose as he sees lit to dispose of his oil and gas.
The conservation law of this state on the subject of oil and gas is Act 190 of 1910, p. 313, which was copied literally from the Indiana statute (Acts 1893, p. 300), the constitutionality of which was attacked in the case of Ohio Oil Company v. Indiana. In that case the Supreme Court of the United States declared the Indiana statute valid, not viola-tive of the Fourteenth Amendment of the Constitution of the United States, because, as the court said:
“The doctrine that a landowner, although entitled to bore wells for natural gas and oil, has no title to those substances as owner until they are actually reduced by him to possession, is settled as a rule of property in the state of Indiana.”
The statute of Indiana from which the Act No. 190 of 1910 of this state was copied made it a penal offense for any one having possession or 'control of a gas or oil well to allow the gas or oil to escape for a longer period than two days after having struck .oil or gas in the well. The Attorney General of Indiana filed a complaint against the Ohio Oil Company in the circuit court of Madison county, Ind., and obtained a temporary injunction restraining the defendant from pei‘-mitting the gas which was escaping from: five of the -company’s wells to escape into the open air. The defendant demurred, averring that the complaint did not disclose a cause of action. The demurrer was overruled. Defendant, answering the complaint, .alleged that the mineral oil and natural gas beneath the surface of the land b (‘longed to the company even before such oil and gas were reduced to possession or brought under control, that the gas which was escaping was actually being utilized for the purpose o^ forcing the oil to the surface, and that therefore an enforcement of the statute which undertook to control the owner of the oil and gas in the manner of disposing of his own property would be a taking of his property; without compensation, and would deprive him of his property without due process of law, in violation of the Fourteenth Amendment. To this answer the state demurred, saying that the facts alleged in the answer were not sufficient to constitute a defense. The state’s demurrer was sustained. On defendant’s refusal to answer further a decree was entered making the injunction permanent. On appeal to the Supreme Court of Indiana the decree was affirmed. Defendant then brought the case to the Supreme Court of the United States on a writ of error.
The Supreme Court of the United States found that the question of constitutionality of the statute depended mainly, if not entirely, upon the question whether the oil and gas, before being reduced to possession or brought under control by the owner or lessee of the surface estate, could be the subject of private ownership.. The Chief Justice, for the court, stated and answered the proposition thus: '
“The proposition, then, which denies the power in the state to regulate by law the manner in which the gas and oil may be appropriated, and thus prevent their destruction, of necessity involves the assertion that there can be no right of ownership in and to the oil. and gas before the same have been actually appropriated by being brought into the possession of some particular person. But it cannot be that property as to a specified thing vests in one who has no right to prevent any other person from taking or destroying the object which is asserted to be the subject of the right of property.”
The court then announced that the right, which is universally recognized, of a landowner to extract, by boring wells on his own land, and appropriate to his own use without compensation to his neighbor, the oil or gas in a natural reservoir beneath the surface, extending beyond his property line, was not consonant with the right of ownership *839oí thé oil arid gas running at large beneath the surface, as the word “ownership” is universally defined.
The test which the court then applied in determining whether oil and gas, while running at large beneath the surface of the earth, could he the subject, of private ownership, was the definition oí owner-ship, substantially as it is written in article 488 of. the Civil Code of Louisiana, viz.:
“Ownership is the right by which a thing belongs to some one in particular, to the exclusion’ of all other persons.”
And the court concluded that mineral oil and gas, while at large beneath the surface of the earth, did not, and in their very nature could not, except perhaps by a legislative fiction, belong to some one in particular, to. the exclusion of all other persons/
The court then reviewed the decisions oil the Supreme Court of Indiana, and declared the law of that ^tate to be “in accord with, the general law,” as follows:
“Although, in virtue of his proprietoi'ship, the owner of the surface may bore wells for the purpose of extracting natural gas and oil, until these substances are actually reduced by him to possession, he has no title whatever to them as owner. That is, he has the exclusive right on his own land to seek to acquire 'them, but they do not become his property until the effort has resulted in dominion and control Ijy actual possession. It is also clear from the Indiana cases cited that, in the absence of regulation by law, every owner of the surface within a gas field may prosecute his efforts and may reduce to possession all or every part, if possible, of the deposits without violating the rights of the other surface owners.”
It is absolutely certain that the decisions of this court on this subject have also been heretofore “in accord with the general la*” that oil and gas at large beneath the surface of the earth are not, and in their very nature cannot be, the subject of ownership, separate and apart from the ownership of. the land itself.
In the opinion delivered by the Chief Justice of the United States Supreme Court in Ohio Oil Co. v. Indiana, the case of Westmoreland, etc., Natural Gas Co. v. De Witt, 130 Pa. 235, 18 Atl. 724, 5 L. R. A. 731, was cited as authority for the doctrine that mineral water and gas and oil belong to the owner of the land and form a part of it so long as they are on or in it and 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 goiie. In that connection, I beg leave to call attend tion to the fact that the Supreme Court of Indiana, in the later case of State v. Ohio Oil Co., 150 Ind. 21, 49 N. E. 809, 47 L. R. A. 627, denied that, in quoting in its previous decisions from the case of Westmoreland, etc., Co. v. De Witt, it had adopted as the law that part of the decision of the Pennsylvania court which had held that the mineral water, gas, and oil belong to the owner of the land and are part of it so long as they are on or in it and are subject to his control, but that, when they escape, and go into other land, or come under another’s control, the title of the former owner is gone.
Of course, it is possible that the Supreme Court of the United States might have declared the Indiana statute constitutional upon the theory of joint ownership in the proprietors of the surface above an oil pool oi-gas pocket. But the fact is that the decision was not based upon that theory. Under our system of law it would be utterly impossible to say that the owners of the surface above an oil pool or gas x>ocket are joint 'owners of the oil in the pool or gas in the pocket, because the Civil Code declares that there can be no such thing as joint ownership except in fixed or definite proportions. Article 488.of the Code declares that it is of the essence of the right of ownership that it cannot exist in two persons for the whole of the samel thing, although they may be the owners of the same thing in common, each for the part that he may have therein. To say that the surface owners above an oil pool or gas pock*841et own the oil and gas, not in fixed or definite proportions, but with the right of any one of them to take and appropriate to his own use, without compensation to the other surface owners, all that he sees fit to take of the oil or gas beneath the surface, is nothing more nor less than to say that each surface owner owns, not any particular part or proportion of the oil or gas, but merely the right to take and appropriate to his own use whatever oil or gas he may reduce to possession by drilling wells on his own land. The right in such case is therefore not ownership of the oil or gas, or of any part of it, but is merely the right to become the owner of such part of the oil or gas as may be reduced to possession by drilling on one’s own land. But, as was said in Ohio Oil Company v. Indiana, the right to become the owner of a thing by reducing it to possession must not be confused with the right of ownership itself. '
In the case of Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 31 Sup. Ct. 337, 55 L. Ed. 369, Ann. Cas. 1912C, 160, plaintiff sought to restrain the officials of the state of New York from enforcing against the gas company a statute making it unlawful to pump from wells or otherwise to draw by artificial means mineral water holding in-solution carbonic acid gas, “for the purpose of extracting, collecting, compressing, liquifying or vending such gas as a commodity otherwise than in connection with the mineral water.” The gas company alleged that the gas could not be brought to the surface except by means of a pump or other artificial appliance; that the company was the owner of the carbonic acid gas in the water, and therefore had the absolute right to dispose of the gas as the company saw fit, and to waste the water if the company saw fit; and that| an enforcement of the statute would deprive the company of its property without compensation, in violation of the Fourteenth Amendment of the Constitution of the United States. The basis of the company’s contention was that the company, being the owner of the land, owned everything beneath the surface that it could reduce to possession. The Supreme Court answered by saying that the postulate asserted by the gas company was the same that had been asserted in Ohio Oil Company v. Indiana; and the court rejected the postulate on the authority of that case, saying:
“Were the question an open one, we should - still solve it in the same way.”
In the case of Walls v. Midland Carbon Co., 254 U. S. 300, 41 Sup. Ct. 118, 65 L. Ed. 276, decided by the United States Supreme Court on the 13th of Last December, the object of the suit was to restrain the Attorney General and other officers of the state of Wyoming from enforcing or attempting to enforce a conservation statute of that state. The first section of the statute made it a penal offense to use, consume or burn natural gas without fully and actually applying and utilizing the heat therein contained for other manufacturing or domestic purposes, if the gas well or source of supply was located within 10 miles from any incorporated town or industrial plant. The second section of the statute made it a penal offense for any owner, lessee or manager of a gas well to use, sell or distribute natural gas for the purpose of manufacturing or producing carbon black or other resultant products from the burning or consumption of natural gas, without the heat therein being fully and actually utilized for other manufacturing or domestic purposes. The Midland Company had, before the enactment of the statute, erected a factory for the manufacture of carbon black, which factory was within 10 miles of an incorporated town and had cost $375,000. Its daily capacity was 13,000 pounds of carbon black, sufficient to manufacture 117,000 pounds of printing ink. From the gas consumed in *843making the carbon black the company extracted about 1,600 gallons of high gravity gasoline per day. The carbon black and gasoline produced were worth several times what the gas consumed would have been worth for other manufacturing or domestic purposes. The Occidental Oil & Gas Company, whose business was an inseparable part of that of the Midland Oil Company, owned the' land on which were located the gas wells that supplied the plant' of the carbon company with the gas from which it manufactured the carbon black. The Occidental Company also owned and operated the pipe line by which the gas was conveyed to the factory, and received a royalty of one-half of the gasoline extracted in the process of manufacturing the carbon black. The Occidental Company also owned leases covering 1,200 acres near the plant in the proven gas field. The injunction suit was founded upon the contention that the plaintiff owned the gas beneath the' surface of the land, and therefore had a right to utilize it as the company saw fit. On the authority of the decision in Ohio Oil Co. v. Indiana and the decision in Lindsley v. Natural Carbonic Gas Co., the Supreme Court of the United States declared that the owner or lessee of the surface did not own the gas beneath the surface until it was reduced to possession or brought under control by the owner or lessee of the surface. The court therefore held that the Wyoming statute did not interfere with the ownership of private property or violate the fourteenth Amendment.
I assume, therefore, that, if we should now reverse the jurisprudence of this state and declare that the owner of the surface does own the oil or gas beneath the surface before he has reduced it to possession, there will be grave danger that the Supreme Court of the United States will declare that the conservation law of this state, being an exact copy of the statute which was put to the test in the case of Ohio Oil Company v. Indiana, does attempt to interfere with a person’s right to dispose of his own property as he sees fit. It will not do to say' that the Supreme Court of the United States may find some other ground upon which to declare the statute of this state valid. In the case of Walls v. Midland Carbon Co., decided last December, the Chief Justice and two Associate Justices of the Supreme Court of the United States, being of the opinion that the statute of Wyoming was unconstitutional, dissented from the majority opinion. It is not reasonable to assume that they based their dissent upon the doctrine that oil and gas, while at large beneath the surface of the earth, are the subject of private ownership, because the opinion to the contrary in Ohio Oil Company v. Indiana, was written by the Chief Justice and concurred in by every member of the court. The probable reason for the dissent of the Chief Justice and the two associate justices In Walls v. Midland Carbon Co. was that the company did reduce to possession the carbon black and the gasoline which were extracted from the gas, and that it was impossible to manufacture carbon black and at the same time utilize all of the heat contained in the gas consumed, and was therefore impossible to comply with the statute, in the manufacture of carbon black. I assume that such a statute could not stand the test in a state in which the local court of last resort would maintain that the owner of the. surface of a tract of land owns absolutely the oil and gas beneath the surface, before it is reduced to possession or brought under control.
A reversal of the judgment which we rendered in this case, and in the companion case of Frost-Johnson Lumber Co. v. Nabors Oil & Gas Co. a year and four months ago, and a consequent reversal of the well-settled jurisprudence on which those decisions were based, I say with respect, would not be justified by any reason given in either the opinion *845submitted by tbe Chief Justice or in tbe opinion submitted by Mr. Justice PRO-VOSTY.
Tbe quotation taken by Mr. Justice PRO-YOSTY from tbe article in tbe. Michigan Law' Review is neither evidence nor legal authority for this case. Tbe article was written by an attorney at law, not a geologist, and was only a part of his argument in support of bis idea, which is contrary to that of the United States Supreme Court and that which has been heretofore consistently expressed by this court, as to whether oil and gas are not subject to private ownership before they are reduced to possession.
With regard to the quotation taken from Brown v. Spilman, 155 U. S. 665, 15 Sup. Ct. 245, 39 L. Ed. 304, quoting in turn an Indiana case, quoting in turn a Pennsylvania case, I have already pointed out that the Supreme Court of Indiana has since declared that it did not adopt the doctrine of the Pennsylvania court that petroleum gas and oil belong to the owner of the land and are a part of it so long as they are on it or in it, etc.
I adhere to the view expressed in our original opinion in this case that it is mere choplogic to say that, as “the ownership of the soil carriers with it all that is directly above and under it,” therefore the ownership of the soil carriers with it all things that are not otherwise susceptible of ownership, so long as they are above or under fhe soil. The last paragraph of article 505 of the Civil Code makes it very plain that, with regard to mineral oil and gas and subterranean water, the owner of the surface does not own them, but has the right to explore for them and to become the owner of all that he may reduce to possession, subject to such modifications as may result from the laws and regulations concerning mines. If it were not so — that is, if ownership in oil and gas and mineral water underneath the surface is vested in the owner of the surface by the language of the first paragraph of article 505 — what reason was there for inserting the third paragraph, expressly permitting the owner of the surface to dig as deep as he deems proper and to draw from the lower regions “all the benefits that may accrue.”
Mr. Justice PROYOSTY argues that oil and gas, while at large beneath the surface of the earth, ought to be subject to private ownership, because pigeons, bees and fish are by statute made the subject of private ownership; and he quotes article 519, viz.:
“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.”
What the article means and says is that, when pigeons, bees or fish go from one place of abode to another, they belong to the owner of their new place of abode, provided they have not been attracted there by fraud or artifice.
The reason why they, while at large, are subject to private ownership, is that the statute declares them so. There might have been as good reason for the lawmakers to declare oil and gas and . mineral water while running at large beneath the surface of the earth, the subject of private ownership, as there was for declaring pigeons, bees, and fish the subject of private ownership. But the fact is that the lawmakers did not include mineral oil or gas or mineral water in the category of pigeons, bees, and fish. And the article referring to pigeons, bees, and fish contains a very strong reason why we cannot include mineral oil and gas in the same category with them. The article declares that a person cannot become the owner of pigeons, bees, or fish by attracting them to his pigeon house, beehive, or fishpond by fraud or artifice. On the other hand, the doctrine is recognized, not only *847by the settled jurisprudenge of this court, but universally, that a man can become the owner of the oil and gas beneath the land of another, by coaxing it from under the land of his neighbor, even by such artifice as a force pump. That doctrine is expressly recognized in the opinion written by Mr. Justice Provosty in the case of Higgins Oil & Fuel Company v. Guaranty Oil Company, decided after the present case was submitted for decision. The doctrine cannot possibly be reconciled with the doctrine that the owner of the surface of a tract of land owns the oil and gas running at large beneath the surface.
The fact that oil and gas are a very valuable commodity is a matter of no importance whatever. Except for the (¡cuestión of prescription, the ownershixs of the exclusive right to drill and explore for oil and gas under a particular tract of land, and to become the owner of all that may be found and reduced to possession, is just as valuable as would be a fictitious ownership of the oil and gas beneath the surface. The Chief Justice and Mr. Justice PROVOSTY, in the opinions which they have submitted, recognize that a contract conveying or reserving the exclusive right to explore for the oil and gas beneath a particular tract of land creates a servitude upon the land, which is lost by prescription if it be not exercised within 10 years. If a landowner should sell to his neighbor the exclusive right to the mineral water under the seller’s land, the contract would, of course, create a servitude upon the land, which servitude would be lost by prescription if not exercised within 10 years. If the contract should be so worded as to purport to sell the mineral water running at large beneath the surface, or supposed to be there, it would not alter the substance or effect of the contract, or prevent the servitude from prescribing in 10 years. What difference is there, in principle, between a servitude to draw mineral water and a servitude to draw mineral oil or gas from beneath the surface of a tract of land? It will not do to say that mineral oil and gas are more valuable than mineral water. .They are all articles of commerce, and, under particular circumstances, if not generally speaking, the mineral water is the most valuable of the three. They were all classed alike in the three decisions rendered by the Supreme Court of the United States on this, subject, Ohio Oil Co. v. Indiana, Lindsley v. Natural Carbonic Gas Co., and Walls v. Midland Carbon Co.
I cannot see how it imposes any hardship upon the owner of a right to extract the mineral oil or gas from the land of another to require that he shall exercise his right within 10 years or allow it to go back into commerce. That has been the law of this state from the beginning of her history. Those who have invested in such rights have done so knowing the law. If the law should be changed how by a reversal of the judgment which we rendered in this case a year and four months ago, it would not only inflict -serious loss upon all investors who have had faith in our jurisprudence, but would also tend to paralyze the oil and gas industry of this state; for it would recognize a species of perpetual incumbrance upon real estate which has never yet found an abiding place in our civil law system.
There is nothing new in the general proposition quoted by Mr. Justice PROVOSTY from article 496 of the Civil Code that the ownership and the possession of a thing are entirely distinct, and that the right of ownership may exist independently of the exercise of it. That article is in the chapter headed “General Principles.” It is, of course, subject to the special provisions with regard to prescription. The general statement that the ownership of a servitude may exist without the exercise of it is not a denial of the special provision that, if it be *849not exercised within 10 years, it shall be forfeited or lost by prescription.
Mr. Justice PROYOSTX virtually concedes that a contract purporting to sell the oil and gas supposed to be under a tract ol land is merely a sale of the hope of finding the oil and gas. That is exactly what was said in Cooke v. Gulf Refining Co., 127 La. 592, 53 South. 874. A sale purporting to convey the oil and gas beneath the seller’s land is a sale, not of the oil and gas themselves, but of the incorporeal right or hope of finding the oil, “together with the right to have” what gas 'and oil may be found and reduced to possession. The doctrine is illustrated in the opinion in that case by quoting the illustration in article 2451 of the Code of a fisherman selling the result of a haul of his net before casting it.
It is certain that, if a landowner should make a contract purporting to sell on terms of credit all of the oil and gas beneath his land, and the purchaser should find none there, the buyer’s obligation to pay would remain as valid as if he had found millions of dollars worth of oil or gas; and the only reason why it would be valid is that the purchaser would not have bought the oil or gas itself, but would have bought only the incorporeal right or hope of finding them.
Mr. Justice PROYOSTX says in his opinion that the Sailings must have intended to reserve a perpetual right to the oil and gas; that is, a right that would never be lost by prescription. A simple answer to that statement is that the parties must have intended that the right should be exercised within the time in which the law required it to be exercised, to avoid its being lost by prescription. It matters not, however, what the parties intended in that respect, because article 3549 of the Civil Code declares that prescription liberandi causa cannot be waived in advance of its having accrued. The law declares that such prescription shall run notwithstanding the voluntary declaration of the obligor to the contrary. Such prescription may be interrupted by an acknowledgment of the obligor, in which case it starts anew from the date of .interruption. That is what we decided in Frost-Johnson Lumber Co. v. Nabors Oil & Gas Co. (No. 22183) 88 South. 723.2 It is surely a matter of no importance whether the parties to the contract in which the mineral rights in question were reserved did or did not intend that the right should be subject to the law of prescription liberandi causa.
In the opinion submitted by Mr. Justice PRO YO STY, as well as in that which has fcjpen submitted by the Chief Justice, the right to drill and explore for the oil and gas, and to become the owner of what oil and gas may be found and reduced to possession, is regarded as a mere incident of the ownership of the oil and gas themselves. On that premise it is argued by the Chief Justice and by Mr. Justice PROYOSTX that the surface estate owes a perpetual servitude to the corporeal or physical property in the oil and gas. In support of the proposition, articles 653 and 795 are cited, which declare that a predial servitude which results from the relative situation of the servient estate to the dominant estate is not subject to prescription “so long as no change takes place in regard to the two estates, whatever change may take place in the owners.” Those two articles, as the Code expressly declares, pertain only to predial servitudes, or “charges laid on an estate for the use and utility of another estate, belonging to another owner.” The articles have nothing to do with servi-tudes in favor of persons. To argue that the servient estate owes a perpetual servitude to the oil and gas beneath the surface is a begging of the question whether the oil and gas beneath the surface, or supposed to be there, are subject to ownership, as physical *851or corporeal property, separate and apart from tlie ownership of the land itself. If it be decided that the oil and gas in that situation are subject to separate ownership, as physical or corporeal property, there is no reason whatever for saying that the surface estate owes a perpetual servitude to the oil and gas to allow the owner of the latter to bring it to the surface. Por it is too well settled now to admit of argument that the ownership of physical or corporeal property cannot.be lost by prescription lib-orandi causa, by the failure of its owner to have it in his possession for ever so long a time. See Harang v. Golden Ranch Land & Drainage Co., 143 La. 983, 79 South. 768.
The reason why oil and gas, as property, while running at large beneath the surface of the earth, are not subject to the laws of prescription relating to the possession of property, is that oil and gas, while running at large beneath the surface of the earth, are not susceptible of possession or dominion of any character, separate and apart from the possession of, or dominion over, the land itself. It would be absurd for the law to establish rules of prescription relating to. a man’s possession of oil and gas at large beneath the surface of the land of another person or supposed to be there.
The majority members of the court are now reversing our original judgment herein, not only upon the question whether oil and gas, while at large beneath the surface of the earth, are subject to ownership separate and apart from the land, but also upon the language of the reservation in the act of sale in question. In the original opinion handed down in this case we found that, although the sellers of the land reserved ownership of the solid minerals, they did not even pretend to reserve ownership of the oil and gas, but reserved merely “the exclusive right and privilege to enter upon the land * * * and bore and explore for gas and oil and to utilize and sell the gas and oil that might be found or discovered in said lands,” etc. We found that that clause in the reservation would have been altogether superfluous and without meaning if the parties had intended that oil and gas should be included in the original reservation of the minerals described as coal, fossils and precious stones, and other solid minerals, or minerals in place, ejusdem generis. In reserving merely the right to exidore for oil and gas, instead of undertaking to reserve absolute ownership of the oil and gas, the parties were observing the law which has been thoroughly established by the jurisprudence of this court, that the oil and gas while at large beneath the surface, are not subject to ownership separate and apart from the land.
The Chief Justice, in the opinion submitted by him, invokes certain general rules for the interpretation of doubtful contracts, such as the rule stated in articles 1950, 1955, and 1903 of the Civil Code, 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.”
That rule pertains to doubtful contracts generally. In interpreting a contract of sale, why should we not invoke the rule applicable particularly and especially to contracts of sale, viz. article 2474 of the Civil Code, which declares:
“The seller is bound to explain himself clearly respecting the extent of his obligations; any obscure or ambiguous clause is construed against him.”
Bear in mind it was the Sailings who sold the land to the Frosts. If the language of the reservation of the “exclusive right and privilege to enter upon the land * * * and bore and explore for gas and oil,” etc., is at all doubtful, or obscure or ambiguous, and if it be possible that the intention was *853to reserve absolute ownership of the oil and gas, the doubt or obscurity or ambiguity must be construed against the Sailings heirs. I do not have any doubt that the language of the contract reserved only the exclusive right to drill and explore for the oil and gas, and did not reserve or attempt to reserve ownership' of the oil and gas under or supposed to be under the surface of the land they sold. It appears to be conceded in the majority and concurring opinion that there is no doubt that the sellers reserved absolute ownership of the oil and gas under or supposed to be under the land they sold. If there was no doubt about that hr the mind of the majority members of the court they would not have subscribed to the original opinion handed down in this case. The doubt ought to be resolved in favor of the buyer, as the Civil Code requires.
I do not concur in the opinion submitted by the Chief Justice, with regard to plaintiffs pleadings, viz.:
“The pleadings in the case, therefore, present no issue upon the susceptibility vel non of oil and gas to ownership, 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.”
It would seem strange indeed if we should find now, after having had this case under advisement for two years, that the issue which has been so thoroughly and so ably argued by so many attorneys, and on which we have written several opinions, is not presented at all for decision.
In support of my opinion that the attorneys for the plaintiff in this case did not, in their plea of prescription, acknowledge that plaintiff had no cause or right of action, I now quote the plea of prescription in full, viz.;
“In the above numbered and styled cause, now comes the plaintiff, Erost-Johnson Lumber Company, and show’s:
“That all of the defendants are claiming rights to the minerals in and under the property in litigation herein, under the stipulation in the deed of date July 2, 1908, from Ernest N. Sailing and Lottie A. Sailing to E. A. and E. W. Frost, wherein said vendor purported to reserve to himself the right to exploit the said land for and to take the minerals therefrom; that all of the rights reserved by the vendor in said instrument were real rights in.' said land or servitudes thereon; that no attempt was made within 10 years from the date of said deed to exercise any of said rights; and that the same are therefore now barred by the proscription of 10 years liberandi causa, which prescription plaintiff now pleads in bar of any rights of the defendants and as perfect-, ing the absolute and unconditional ownership of plaintiff in all of said property.
“Wherefore plaintiff prays that this plea of prescription be maintained, and for general relief,” etc.
It is worthy of note that a regular two months’ session of the General Assembly has been held since we handed down our opinion in this case and in the companion ease of Frost-Johnson Lumber Co. v. Nabors Oil & Gas Co.; and a constitutional convention has been in session now two months. Yet no change whatever has been made in the provisions of the Civil Code as we interpreted them in those two cases, and as we. had been interpreting them since we rendered the decision in Wadkins v. Atlanta Oil & Gas Company, eight years ago. It is quite certain that the lawmaking power would have corrected our error, if it had been thought that we were in error, in our interpretation of the articles of the Code.
It is not likely that a reversal of the judgment which we have rendered in this case, by a reversal of opinion of only one member of the court, would warrant the members of the legal profession in advising tbeir clients, or in believing themselves, that the decision of this case would be a better guide than our past jurisprudence to the contrary. Any change in the personnel of the court would be *855apt to cause the court to advert and adhere to the past jurisprudence. It is well known that the constitutional convention now in session is making provision for at least three new members to come upon this bench. Besides, a successor to Mr. Justice PROVOSTY has already been elected; in fact, he was elected before the constitutional convention was called, and will take his seat within the year. Although the opinions of the court over which Mr. Justice PROVOSTY’S successor has been presiding are not officially published, it is a matter of public record and of general knowledge that, before we handed down our original opinion in the present case, Mr. Justice-Elect Overton followed our previous' jurisprudence, and held that oil and gas at large beneath the surface of the earth were not subject to ownership as physical or corporeal property, separate and apart from the ownership of the land itself. I take it, therefore, that Mr. Justice Over-ton would be as apt to adhere to the judicial opinion which he has already formed and expressed, and adhere to the well-established jurisprudence upon which his opinion was founded, as to adopt a contrary opinion, without anything new in the way of light upon the subject.
For the foregoing reasons, and for the reasons expressed in the original opinion which we handed down in this case, I do not concur in either the opinion submitted by the Chief Justice or in the opinion submitted by Mr. Justice RROVO'STY, proposing to reverse our former opinion and decree in this case and our previous jurisprudence on the subject.
149 La. 100.
149 La. 100.