On Rehearing.
O’NTELL, J.The main issue in this ease has been disposed of by the opinion and decree rendered on the 17th day of this month in the case of the Frost-Johnson Lumber Company v. Heirs of Lottie A. and Ernest N. Sailing (No. 22,916) 91 South. 207,1 on the final hearing of the case. It was decided that mineral oil and gas at large beneath the surface of the earth were not subject to private ownership, as physical or corporeal property, separate and apart from the land. It was held that a contract by which the owner of the land had undertaken to sell the oil and gas supposed to be under his land, or had sold the land and attempted to reserve to himself the ownership .of the oil and gas supposed to be under the surface, did not convey or reserve the ownership of the oil or gas itself, as physical or corporeal property, but conveyed or reserved only a real right, or servitude, to explore for oil and gas and to become the owner of whatever oil or gas might be discovered and reduced to possession. Hence it was held that the right so conveyed or reserved, being a servitude upon the land, was subject to the prescription liberandi causa, by which servitudes are forfeited or extinguished if not exercised during a period of ten years.
[7, 8] Under the doctrine announced in the case cited, the mineral- rights acquired by the plaintiff in this case, through mesne conveyances from S. G. Sample, were lost by prescription, unless the prescription was interrupted in favor of plaintiff by the reservation made by Sample in his' sale of the land to Hill Moseley. The sale- by Sample to the author in title of the plaintiff in this suit was made on the 15th of February, 1904. *395The oil and gas lease made by plaintiff to the defendant Louisiana Oil Refining Company was made on the 6th of May, 1914; that is, after the expiration of ten years from the time when plaintiff’s author in title had acquired the mineral rights from S. G. Sample. In the meantime, no attempt had been made by the plaintiff corporation or its authors in title to exercise any right upon the land; which, on the 15th of April, 1905, was sold by Sample to I-Iill Moseley. The Louisiana Oil Refining Company, being advised that the mineral rights claimed by plaintiff had been forfeited or lost by prescription before the lease was made, obtained an oil and gas lease from the widow and heirs of the deceased Hill Moseley, on the 24th of July, 1914. In the meantime, but after the expiration of ten years from the time when plaintiff’s author in title had acquired the mineral rights from S. G. Sample, the Louisiana Oil Refining Company had drilled a well that produced gas in paying quantities. On the 20th of February, 1915, the Louisiana Oil Refining 'Company transferred to the Southwestern Gas & Electric Company, codefendant herein, the lease that had been acquired from the widow and heirs of Hill Moseley, “as well as any and all other oil and gas leases” which the transferror had of record on the land, or in which the transferror had an interest.
The reservation of the mineral rights, in the deed made by S. G. Sample to Hill Moseley, was not an acknowledgment or recognition on the part of Moseley that the mineral rights had already been sold to the author in title of the plaintiff in this suit. The reservation was in this language, viz.:
“Saving and excepting and reserving unto the said vendor, Ms heirs and assigns, all oil and gas and other valuable minerals that may be under the surface of said land,” etc.
The language of the reservation, in favor of the seller of the land, and his heirs and assigns, is too plain to admit of the construction that it was intended to inure to the benefit of plaintiff’s author in title, to whom the mineral rights had already been sold. Even though it might have been so intended by S. G. Sample, it was not so acknowledged or recognized by Hill Moseley. In that respect, this case must be distinguished from the case of Frost-Johnson Lumber Co. v. Nabors Oil & Gas Co., 149 La. 100, 88 South. 723 ; where the purchaser of the land expressly acknowledged that the mineral rights had already been sold to the Louisiana Coal & Lumber Company; and where, for that reason, it was held that the prescription liberandi causa was interrupted, and that the ten years commenced anew from the date of the interruption.
Of course, the reservation made by S. G. Sample, in his sale of the land to Hill Moseley, could not have prejudiced the mineral rights which plaintiff’s author in title had already acquired from Sample. If those rights had been exercised within ten years from the date when they were acquired by plaintiff’s author in title from S. G. Sample, the reservation which he afterwards made, in his sale of the land to Hill Moseley, would not have availed him. But the reservation made by Sample in his sale to Moseley did not prolong the period of prescription which was running against the rights which Sample had already conveyed to plaintiff’s author in title. When those rights were lost by prescription, the reservation which Sample had made in his own favor, and in favor of his heirs and assigns, was yet in effect. That reservation has not been asserted and is not in contest in this case.
[9] The expressions in the opinion originally handed down in this case, to the effect that the stipulations in the contract of sale of the mineral rights, by S. G. Sample to plaintiff’s author in title, that the rights conveyed were to be exercised “at all times,” or “at any time,” made the rights imprescriptible, was not concurred in by a majori*397ty of the members of this court, as then constituted. Such a doctrine would be in direct conflict with the rule that an obligor cannot be bound by an agreement that his obligation shall not be extinguished by prescription liberandi causa. The period of prescription may be interrupted by a written acknowledgment on the part of the obligor; but, when so interrupted, it begins anew from the date of the acknowledgment. There are several pertinent articles of the Civil Code on that subject.
Article 345? declares:
“The prescription by which debts are released, is a peremptory and perpetual bar to every species of action, real or personal, when the creditor has been silent for a certain time without urging his claim.”
The word “creditor,” in the article' quoted, is synonymous with the word “obligee,” as defined in article 3556, No. 20, viz.:
“Obligee or creditor is the person in favor of whom some obligation is contracted, whether such obligation be to pay a sum of money, or to do or not to do something.”
Article 3460, referring to prescription liberandi causa, declares':
“One cannot renounce a prescription not yet acquired, but it is lawful to renounce prescription when once acquired.”
Article 3549 declares:
“In eases of prescription releasing debts, one may prescribe against a title created by himself; that is, against an obligation which he has contracted.”
From the provisions quoted from the Code, it is obvious that S. G. Sample, in his sale of the mineral rights to plaintiff’s author in title could not have bound himself — much less the subsequent owners of the land — by an agreement on his part that the real obligation or servitude which was then imposed upon his land should not be subject to the prescription liberandi causa.
[10] A majority of the members of this court did not concur in the expressions in the opinion originally handed down in this case, to the effect that the Louisiana Oil Refining Company after acquiring the oil and gas lease from plaintiff, could not acquire an oil and gas lease from the widow and heirs of Hill Moseley, as owners of the land, when the lessee( was informed that plaintiff had lost its oil and gas rights by prescription before the original lease was acquired. In that respect, the doctrine that an ordinary lessee, as of a house or farm, cannot dispute the title of his lessor during the term of the lease, has no application to a contract by which a person acquires mineral rights, in the form or name of a contract of lease. Such a contract, in that respect, is more like a sale than an ordinary lease. Surely a purchaser of mineral rights, on discovering.that the seller had no title, is at liberty to buy the mineral rights from the one who has the title.
■Inasmuch as the issues which are now decided were not so decided in the original judgment rendered by this court, and especially as only three members of the court who took part in the original decision of the case are taking part in this decision, we have concluded that, under section 4 of our Rule 14 (67 South, xi1), the right should be reserved to plaintiff to apply for a rehearing.
The judgment appealed from is annulled, and plaintiff’s demands are rejected, and its suit is dismissed at its cost, reserving to plaintiff the right to apply for a rehearing within the delay days which the law allows.
PROVOSTX, O. J., and LAND and BAKER, JJ., dissent. MONROE, C. J.,had retired when the foregoing opinion was agreed on, and took no part therein.
150 La. 756.
136 La. xii.