(dissenting in part). I do not concur in the opinion of the Chief Justice that prescription liberandi causa can be waived by agreement between the obligor and obligee. In other words, I do not concur in the opinion that the expression, in the contract in question, that the real right to explore for oil and gas was to be enjoyed or exercised “at all times” or “at any time hereafter,” had the effect of preventing the running of the prescription of ten years by which servitudes or real rights are lost.
Article 3549 of the Civil Code declares, in terms, that the prescription liberandi causa runs against or notwithstanding the obligors’ voluntary act. If it were not so, a promissory note might validly contain a stipulation that the debt should never prescribe.
Prescription liberandi causa may be interrupted, and, when it is, the prescription starts anew from the date of interruption. In this case the prescription was interrupted by the acknowledgment in the act of sale *393made by Sample to Hill Moseley, on April 5, 1905; and tbe ten years’ prescription began anew on that date. The fact that drilling operations were commenced within ten years from that date is the controlling fact in this case. For that reason alone the mineral rights acquired by the plaintiff herein by mesne conveyances from Sample were not lost by prescription. To that extent, I concur in the opinion of the Chief Justice; and I am of the opinion that it was and is unnecessary to go further into the question of prescription.
Inasmuch as the defendant gas company is not dispossessed or deprived of the well No. 1 and the five acres surrounding it, defendant is not entitled to any judgment against the oil company as a warrantor, for the cost or value of the well.
As to wells No. 2 and No. 3, plaintiff has elected to keep them, and therefore owes the defendant gas company compensation for the cost or value of those two wells. The oil company, however, as warrantor, does not owe compensation for those two wells. It appears that the defendant gas company did not ask for compensation from the plaintiff herein for wells No. 2 and No. 3; but that is no reason why the defendant gas company should have compensation from the warrantor. I doubt that there is any compensation due the defendant gas company for those two wells, because it appears from the record that the gas company has collected more for gas sold from those wells than the two wells cost. But, if there is compensation due for those two wells, it is due by plaintiff, not by the warrantor, oil company.
I do not concur in the opinion of the Chief Justice that the mineral lease which plaintiff seeks to annul is governed by the rules pertaining to an ordinary lease of a house or farm. Nor do I agree that it was inconsistent for the defendants to obtain a lease from a subsequent owner of the land, Hill Moseley, when defendants believed that the rights of the original lessor had been lost by prescription and had inured to the benefit of Hill Moseley, the owner of the land itself.