On Second Rehearing.
ST. PAUL, J.The issues involved herein have been fully stated in the several opinions heretofore filed herein, and need not be restated.
I.
When the original opinion was handed down by Mr. Justice O’NIELL on January 5, 1920, this court then held for the ninth time that oil and gas in place are not subject to absolute ownership as specific things apart from the soil of which they form part, and that a grant or reservation of such oil and gas carried only. the right to extract such minerals from the soil.
It would serve no useful purpose to analyze the eight decisions which preceded; they have been gone into, first in that original opinion, and still more fully in the dissenting opinion handed down by the same justice on the first rehearing. Those eight cases are the following: (1) Wadkins v. Atlanta & Shreveport Oil Co., 1913, not reported; (2) Rives v. Gulf Refining Co., 133 La. 178, 62 South. 623; (3) Cooke v. Same, 135 La. 616, 65 South. 758; (4) Elder v. Ellerbe, 135 La. 995, 66 South. 337; (5) Strother v. Mangham, 138 La. 437, 70 South. 426; (6) Saunders v. Busch-Everett Co., 138 La. 1049, 71 South. 153; (7) Hanby v. Texas Co., 140 La. 190, 72 South. 933; (8) Higgins Oil & Fuel Co. v. Guaranty Oil Co., 145 La. 233, 82 South. 206, 5 A. L. R. 411.
It would therefore seem that, if a rule of property is ever to be established on that subject, those decisions should stand as law in this state.
II.
[11] It is said that this court has held otherwise in De Moss v. Sample, 143 La. 243, 78 South. 482, and Calhoun v. Ardis, 144 La. 311, 80 South. 548. But we do not find it so ; for an opinion is authority only in so far as the ratio dicendi is necessary for a decision of the precise issue involved in the case.
In the De Moss Case the vendors had reserved “the oil, gas and mineral rights in and to the property sold.” The vendee contended that the deed conveyed the property in its entirety, because:
*857“The so-called reservation of mineral rights was of an uncertain thing, which could not be sold, and, if passed, was passed without consideration on the part of the defendants [vendors!.”
The issues as stated above are taken from the opinion of the court (143 La. 245, 78 South. 482), and the only parts of the whole opinion which are at all pertinent to those issues are the following two paragraphs:
143 La. 245, 78 South. 483:
“The agreement entered into between the parties is clear and unambiguous in its terms. It therefore has the effect of a law upon them, and its terms must be performed in good faith, unless the agreement is in violation of law. As the law does not forbid the owner of land to reserve to himself the minerals lying under the surface thereof, or the right to thereafter enter upon said lands for the purpose of exploring for those minerals, such reservation properly became the subject, or motive, of the contract between the parties.”
143 La. 249, 78 South. 484:
“A sale or reservation of the mineral rights on property, of course, does not constitute a sale or reservation of so many tons of coal, iron ore, barrels of oil, or-feet of gas; nevertheless such a contract may convey or reserve the exclusive right to exploit the property for any of the mineraís designated in the act of conveyance or reservation; and to say that such a contract is void for lack of certainty as to the thing sold, or reserved, or contrary to any principle of public policy of the state, would, in a way, relegate the most valuable property in the state to the category of property de hors commerce.”
As to the alleged want of consideration, that received no notice whatever from the court, and deserved none.
All the rest of the opinion has nothing whatever to do with the case; and of course the parties to the suit were so little interested in the academic part of the opinion that they did not even apply for a rehearing.
Tn the Calhoun Case the vendor had retained “all the mineral rights under said property”; but the vendee claimed all the oil mined by the vendor on the ground:
That “no consideration passed from Ardis [the vendor] to plaintiff [the vendee] for .said mineral rights; * * * that it is not legally possible to sell land separate from the oil and gas that might be beneath it, that the oil and gas attempted to be reserved cannot be identified and are not susceptible of private ownership until reduced to possession.”
To the first proposition the court answered:
“This reservation being of a thing that form-; ed part of the estate, such part was excluded from the sale, and there could be no consideration due by Ardis * * * for that which, having never belonged to plaintiff, remained under the ownership of Ardis.”
To the second proposition the court answered that the point had been set at rest in De Moss v. Sample, supra.
Neither of those cases called for any decision upon the question whether or not a sale of mineral rights (or, if gentlemen please, a sale of the minerals themselves) conveyed a corporeal thing or an incorporeal right; for in the De Moss Case the question raised was whether the thing reserved was certain and alienable; and we see how the court answered that. And in ,the Calhoun Case there was not the slightest suggestion that the defendant claimed title to anything but an incorporeal right, to wi't— “all the mineral rights under said property,” as stipulated in the deed.
These cases cannot therefore be considered as authority upon the point now before the court.
III.
[12] We therefore hold that it is the settled jurisprudence of this state that oil and gas in place are not subject to absolute ownership as specific things apart from the soil of which they form part; and a grant or reservation of such oil and gas carries only the right to extract such'minerals from the soil.
And we find with much satisfaction that our jurisprudence is in complete harmony *859with that which prevails throughout the land.
The Supreme Court of the United States has so held at least four times: Brown v. Spilman, 155 U. S. 665, 15 Sup. Ct. 245, 39 L. Ed. 304; Ohio Oil Co. v. Indiana, 177 U. S. 190, 20 Sup. Ct. 576, 44 L. Ed. 729; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 31 Sup. Ct. 337, 55 L. Ed. 369, Ann. Cas. 1912C, 160; Walls v. Midland Carbon Co., 254 U. S. 300, 41 Sup. Ct. 118, 65 L. Ed. 276 (1920).
In Warvelle on the Law of Real Property, a book of elementary principles for students, we find:
“Section 32. Oils and Gases— Earth oils and volatile gases occupy much the same position in the law of real property as water, and, like water, are not the subjects of property except while in actual occupancy. They are usually classed as minerals, possessing in some degree a kindred nature, and so long as they remain in place, are fully included in the comprehensive term ‘land.’ Unlike other minerals, however, they have the power as well as the tendency to escape without the volition of the owner, and in this respect they possess substantially the same attributes as water. Hence ownership therein partakes very much of the nature of an incorporeal interest, and a grant of oils or gases is practically no more than a mere license to sink shafts and extract same, and is governed by the general rules which apply to licenses”—citing Williams v. Gibson, 84 Ala. 228, 4 South. 350, 5 Am. St. Rep. 368; Stoughton’s Appeal, 88 Pa. 198; Murray v. Allred, 100 Tenn. 100, 43 S. W. 355, 39 L. R. A. 249, 66 Am. St. Rep. 740; Westmoreland Gas Co. v. De Witt, 130 Pa. 235, 18 Atl. 724, 5 L. R. A. 731; People’s Gas Co. v. Tyner, 131 Ind. 277, 31 N. E. 59, 16 L. R. A. 443, 31 Am. St. Rep. 433; Williamson v. Jones, 43 W. Va. 562, 27 S. E. 411, 38 L. R. A. 694, 64 Am. St. Rep. 891; Gerkins v. Kentucky Salt Co., 100 Ky. 734, 39 S. W. 444, 66 Am. St. Rep. 370; Kelley v. Ohio Oil Co., 57 Ohio St. 317, 49 N. E. 399, 39 L. R. A. 765, 63 Am. St. Rep. 721; Dark v. Johnston, 55 Pa. 164, 93 Am. Dec. 732.
In American and English Encyclopedia of Law (2d Ed.) vol. 21, p. 417, we find:
“Natural gas is not subject to absolute ownership; it belongs to the owner of the land and forms part of it, so long as it is on the land and subject to his control; but when it escapes and goes into other land, or comes under the control of another, the title of the former owner is lost”—citing People’s Gas Co. v. Tyner, 131 Ind. 281, 31 N. E. 59, 16 L. R. A. 443, 31 Am. St. Rep. 433; Townsend v. State, 147 Ind. 628, 47 N. E. 19, 37 L. R. A. 294, 62 Am. St. Rep. 477; State v. Ohio Oil Co., 150 Ind. 30, 49 N. E. 809, 47 L. R. A. 627 (see 177 U. S. Supra); Westmoreland Nat. Gas Co. v. De Witt, 130 Pa. St. 235, 18 Atl. 724, 5 L. R. A. 731; Wood County Pet. Co. v. W. Va. Transportation Co., 28 W. Va. 210, 57 Am. Rep. 659.
In Ruling Case Law, vol. 18, p. 1206, verbo “Mining,” § 110, we find:
“The owner of land has no specific title to them (oil and gas) until they have been removed from the earth, or reduced 'to actual possession”—citing Ohio Oil Co. v. Indiana, 177 U. S. 190, 20 Sup. Ct. 576, 44 L. Ed. 729; State v. Ohio Oil Co., 150 Ind. 21, 49 N. E. 809, 47 L. R. A. 627; Rupel v. Ohio Oil Co., 176 Ind. 4, 95 N. E. 225, Ann. Cas. 1913E, 836; Dark v. Johnston, 55 Pa. 164, 93 Am. Dec. 732; Bender v. Brooks, 103 Tex. 329, 127 S. W. 168, Ann. Cas. 1913A, 559; Smith v. Root, 66 W. Va. 633, 66 S. E. 1005, 30 L. R. A. (N. S.) 176.
In the very latest work on the subject, “Oil and Gas Rights” by R. S. Morrison and Emilio De Soto, of the Colorado bar, published by the Bender-Moss Company of San Francisco, and copyrighted in 1920, the authors say in their preface:
“It is intended to sot forth the latest decisions and principles concerning the rights of the owner in fee of lands not affected by the act [of Congress] containing oil and gas deposits, the rights of lessors and lessees of oil and gas lands, and of all persons who have contractual relations concerning the same, and to treat upon the various topics and subjects incident to the laws governing the owning, leasing, production, sale, and transportation of oil and gas, with the latest -text of the statutes of the different states which have legislated upon oil and gas rights.”
Therein we find the following (page 20):
“In a case in Pennsylvania considering the fugacious nature of oil and gas, they were eonvpared to animals ferae naturae, the property in which does not become absolute until they *861arc reduced to possession. Westmoreland, etc., Natural Gas Co. v. De Witt, 130 Pa. 235, 249, 18 Atl. 724, 5 L. R. A. 731. * * *
“This precedent has been, followed in numberless cases until it has beome a rule of property, and it is entirely too late to question it. We have nevertheless never yielded our assent to the logic of the analogy or the distinction which it forces into the law. It has led in its application to novel if not startling decisions. The whole subject of drainage and protection is affected by it as well as many questions of pleading and practice.”
And as basis of tlie foregoing the authors cite the following: McNish v. Stone, 152 Pa. 457, and note; Venture Oil Co. v. Fretts, 152 Pa. 451, 25 Atl. 732; Florence Oil Co. v. Orman, 19 Colo. App. 79, 73 Pac. 628; Kolachny v. Galbreath, 26 Okl. 772, 110 Pac. 902, 38 L. R. A. (N. S.) 451; Beardsley v. Kansas N. Gas Co., 78 Kan. 571, 96 Pac. 859; Kelly v. Keys, 213 Pa. 295, 62 Atl. 911, 110 Am. St. Rep. 547; Priddy v. Thompson, 204 Fed. 955, 123 C. C. A. 277; Lindlay v. Raydure (D. C.) 239 Fed. 928; Rich v. Doneghey (Okl.) 177 Pac. 86, 3 A. L. R. 352; Frank Oil Co. v. Belleview Gas Co., 29 Okl. 719, 119 Pac. 260, 43 L. R. A. (N. S.) 487; Campbell v. Smith, 180 Ind. 159, 101 N. E. 89; Louisville Gas Co. v. Kentucky Heating Co., 132 Ky. 435, 111 S. W. 374; Gillespie v. Fulton Oil Co., 239 Ill. 326, 88 N. E. 192; Poe v. Ulrey, 233 Ill. 56, 84 N. E. 46; Dark v. Johnston, 55 Pa. 164, 93 Am. Dec. 732; Wagner v. Mallory, 169 N. Y. 501, 62 N. E. 584; Ohio Oil Co. v. Indiana, 177 U. S. 190, 20 Sup. Ct. 576, 44 L. Ed. 729; Mfrs’ Gas Co. v. Indiana, 155 Ind. 461, 57 N. E. 912, 50 L. R. A. 768; Heller v. Dailey, 28 Ind. App. 555, 63 N. E. 490; New American Oil Co. v. Troyer, 166 Ind. 402, 76 N. E. 253, 77 N. E. 739; Bryson v. Crown Oil Co., 185 Ind. 156, 112 N. E. 1; Brookshire Oil Co. v. Casmalia Ranch Oil Co., 156 Cal. 211, 103 Pac. 927; Lanyon Zinc Co. v. Freeman, 68 Kan. 691, 75 Pac. 995, 1 Ann. Cas. 403; Brown v. Spilman, 155 U. S. 665, 670, 15 Sup. Ct. 245, 39 L. Ed. 304.
It will be observed that the authors are not friendly to the doctrine which these cases hold, but they do not pretend that there is even a single decision holding to the contrary; and they concede, though ungracefully, that—
“This precedent has been followed in numberless cases until it has become a rule of property and it is entirely too late to question it.”
IV.
The famous and much-criticized comparison between oil and gas and animals ferae naturae in Westmoreland Gas Co. v. De Witt, 130 Pa. 235, 18 Atl. 724, 5 L. R. A. 731, is in full as follows:
“Gas, it is true, is a mineral; but it is a mineral with peculiar attributes, which require the application of precedents arising out of ordinary mineral rights, with much more careful consideration of the principles involved than of the mere decisions. Water also is a mineral; but the decisions in ordinary eases of mining rights, etc., have never been held as unqualified precedents in regard to flowing, or even to percolating, waters. Water and oil, and still more strongly gas, may be classed by themselves, if the analogy be not too fanciful, as minerals ferae naturae. In common with animals, and unlike other minerals, they have the power and the tendency to escape without the volition of the owner. Their ‘fugitive and wandering existence within the limits of a’ particular tract is uncertain,’, as said by Chief Justice Agnew, in Brown v. Vandegrift, 80 Pa. 147, 148. They 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 when they escape, and go into other land, or come under another’s control, the title of the former owner is gone.”
This incidental comparison of oil and gas with animals ferte naturse was unfortunate and has afforded a powerful weapon to those who seek to overthrow the irresistible logic of a groat decision. For, as said by Mr. Justice Provosty in Higgins Oil & Fuel Co. v. Guaranty Oil Co., 145 La. 233, 246, 82 South. 206, 211 (5 A. L. R. 411):
“The analogy between the subterranean oil and subterranean or percolating waters is, we believe, near complete. * * * ”
*863But ridicule is indeed,a powerful weapon for destruction, though without constructive value whatever, and hence is always appealed to by those who would overthrow a principle, but are unable to do so by force of logic.
Y.
[13] As to the nature of the right reserved, we liken it to the right to draw water from another’s land; and that is a right of servitude. But we think it would be unprofitable to discuss generally whether,such a right can or cannot be established in favor of a person and Ms heirs. For this much is certain, that many such grants and reservations of oil and mineral rights have been made in this state, whether under the name of leases or otherwise, and we will not disturb valuable rights, acquired in good faith and for valuable consideration, without being able to point out conclusively that such contracts are forbidden by law; and this, we confess, we are unable, as we are unwilling, to do.
We may hold, and we do hold, that no matter what the intention of the parties be, the owner of lands cannot convey or reserve the ownership of the oils, gases, and waters therein apart from the land in which they lie; and we so hold, because the owner himself has no absolute property in such oils, gases, and waters, but only the right to draw them through the soil and thereby become the owner of them. The intention of the parties has therefore nothing whatever to 'do with that holding; the principle involved being that no one can convey to another any greater right than he himself has.
But, in the matter of burdening his lands with some real obligation i-> favor of a person and his heirs, there is not the least doubt that the owner can do so unless some positive law' prohibits it.
Now the right to establish a servitude in favor of a person and Ms heirs seems to be forbidden by C. C. arts. 646, 709. But, on the other hand, it seems to be allowed by C. C. arts. 607, 758, 2013.
And with these conflicting provisions before us we cannot say that the law clearly prohibits the creation of a servitude upon lands in favor of a person and his heirs. And hence the intention of the parties should govern in such matters.
We therefore hold that the right granted or reserved in such eases is a servitude, and hence prescribed by nonuser for 10 years.
Decree.
The decree herein first rendered, to wit, on January 5, 1920, is therefore now reinstated and made the final judgment of the court.
RROVOSTY, O. J., and LAND and BAKER, JJ., dissent.