(dissenting). Plaintiffs bring this suit for the partition of 22 acres of land situated in the oil fields of Caddo parish and for the value of one-fifth of the oil produced therefrom; the one-fifth interest in the land having been held to belong to them by final judgment of this court, in the case of Liles v. Pitts et al., 145 La. 650, 82 South. 735. Petitioners allege that their said undivided fifth interest was wrongfully included in a lease by W. E. Barnhart, their co-owner, to the Gulf Refining Company of Louisiana. Article 5 of the petition further alleges as follows:
“That, acting under said lease, the said Gulf Refining Company of Louisiana entered upon said lots of land, including petitioner’s interest therein, and wrongfully took from said land great quantities of oil and gas to an amount in value, as they are informed -and therefore charge, exceeding one-half million dollars, the part taken from petitioner’s one-fifth interest exceeding the sum of $100,000, and the said Barnhart and the said Gulf Refining Company of Louisiana are liable, in solido, to your petitioners for their one-fifth part of the whole quantity of oil and gas, or the proceeds thereof, taken from said land, less their one-fifth part of the cost of production.”
Petitioners further allege that they gre entitled to have the books of the Gulf Refining Company produced, and accounting made of the operations upon said property. They also make the surety on the appeal bond in the former ease of Liles v. Pitts, supra, par-’ ty defendant, and seek judgment against it in solido with the other defendants to the amount of said bond.
Barnhart was a nonresident, a curator ad hoc was appointed to represent him, and petitioners prayed for an accounting, for a partition by licitation, and for judgment against said defendant and Gulf Refining Company “for one-fifth of the amount received by said Barnhart and said Gulf Refining Company for oil and gas taken from said premises, less the reasonable cost of producing same,” and for judgment against the surety on the former appeal bond for the funds received by Barnhart during the pend-ency of said appeal, up to the amount of said bond.
Subsequently, by amended petition, judgment in solido against Barnhart and Gulf Refining Company was sought “for one-fifth, of the value of all,oil and gas taken from said premises, less the reasonable cost of producing the same.” And a third amendment claimed interest from judicial demand.
Certain exceptions were filed by Gulf Refining Company, which have become unimportant to the issues of the case. The curator ad hoe for Barnhart excepted to the jurisdiction ratione personse, and the Surety Company filed exceptions of no cause or right of action and prematurity.
The answers, both of the Refining Company and of the curator ad hoe, admitted that plaintiffs had been decreed the owners of an undivided one-fifth interest in the land, but alleged good faith, and the prescription of one year under article 3536 of the Civil Code as to the oil and gas taken more than one year prior to the filing of the suit.
Gulf Refining Company by amendment sought a separate appraisement of its rights as lessee, and a pro rata distribution of the proceeds of the property according to interests of the several parties. It also attempted to call Barnhart in warranty, and asked to be made whole on its contract with him out of his interest.
*439Barnhart made no personal appearance, but the curator ad hoc filed a general denial.
Gulf Refining Company filed an account of its operations, which is not attacked; nor is there any dispute as to the other facts. There was judgment ordering the property sold to effect a partition, the proceeds to be paid to Barnhart and plaintiffs in the proportions of four-fifths to the former and one-fifth to the latter. There was also a moneyed judgment against Gulf Refining Company for $7,173.26, with interest from July '20, 1919, as the value of the oil and gas taken from the land, less cost of production, during the period of one year next preceding the filing of this suit and up to August 31, 1919. As to all prior claims the plea of prescription of one year was sustained.
There was further judgment in favor of Gulf Refining Company and against Barn-hart for the sum of $1,200, as the value of one-fifth of the royalties paid to him within the said period of one year, and for the further sum of $600, for one-fifth of the bonus paid for the lease.
The Refining Company was also given permission to remove all of its pipe, machinery, etc., except such as was attached to and formed part of the wells on the property.
Both plaintiffs and the Gulf Refining Company have appealed.
Opinion.
But two issues of law are presented:
(1) The plea of prescription of one year; and
(2) The adjustment sought by the Gulf Refining Company against Barnhart.
The Plea of Prescription.
Plaintiffs’ counsel say that the plea of prescription was improperly sustained for the following reasons:
(1) The demand is not one sounding in damages ex delicto, but for money unduly received, under article 2301 of the Civil Code.
(2) “In a partition suit, incidental demands arising between the parties are only prescribed by the prescription that would prescribe the action itself.”
(3) “Prescription does not run against incidental demands for rents and revenues arising during the pendency of a petitory action to establish title to the property from which they arise. The right of action for revenues rests upon the title to be established and does not accrue until judgment is rendered and title established.”
The allegations of article 5 of the petition, quoted above, and the prayer, disclosed that the demand is for the net value, after paying cost and expenses of producing and marketing of one-fifth the oil and gas. However, the suit is not a ratification of the lease which Barnhart gave to the Refining Company, in so far as it affects the one-fifth interest of the plaintiffs, nor is it a demand to be paid their part of the consideration flowing to the lessor thereunder, but a claim for one-fifth of the proceeds of the entire production, including that received both by lessor and lessee. To the extent that it exacts of the Refining Company more than the one-eighth which it agreed to pay Barnhart, the suit is a repudiation of the lease.
“He who receives what is not due him, whether he receives it through error or knowingly, obliges himself to restore it to him from whom he has unduly received it,” says the Code, art. 2301. This provision is found in section 3, title V, under the heading “Of Quasi Contracts.” Preceding articles define a quasi contract as follows:
“Art. 2293. All persons, such even as are incapable of consent, may, by the quasi contract, resulting from the act of a third person, become either the object or the subject of an obligation, because the use of reason, although necessary on the part of the person whose act forms the quasi contract, is not requisite in those by whom, or in whose favor, the obligations resulting from the act, are contracted.”
*441Article 2294 reads:
“All acts from which there results an obligation without any agreement, in the manner expressed in the preceding article, form quasi contracts. But there are two principal kinds which give rise to them, to wit: The transaction of another’s business, and the payment of a thing not due.”
See, also, articles 2305, 2311, and 2312.
These articles together with others appearing in this chapter, show the obligation to restore or repay what has been unduly received springs from some one of the relations giving rise to a quasi contract, which relations originate from contracts, either express or implied, or from some special duty expressly imposed by law with respect to a person or thing. It may, though not necessarily, partake of the nature of a tort; but every tort does not give rise to a quasi contract. There must be something more in the way of legal relation than the mere liability to repair a wrong. 1
In the present case that element existed, though at first unknown to Barnhart, by virtue of the undivided ownership of the plaintiffs in the property leased to the Refining Company. What defendant did was “lawful and purely voluntary,” and with the bona fide belief that he owned the whole property. Yet, as was ultimately determined in the former suit, Barnhart owne£ only four-fifths; the other one-fifth being the property of plaintiffs. That good faith was sufficient under proper possession, continued for ten years, to have vested in him the title to the whole, or even until the filing of the suit claiming ownership by plaintiffs, to.give him the fruits and revenues of the property. C. C. arts. 502, 503. However, from the date of that suit, he ceased to be in good faith, in the sense of the Code, and became liable to the plaintiffs for the fruits and revenues of the property, in the proportion of their interest. C. C. art. 503. True, it has been held that oil and gas, or other minerals, do not fall within the category of fruits and revenues spoken of by the Code. Elder v. Ellerbe, 135 La. 990, 66 South. 337. Yet, even as to fruits and revenues, as well as to claims of one evicted for improvements, prescription does not run during the pendency of a petitory action for the recovery of the fee of the realty. Woodcock v. Baldwin, 110 La. 270, 34 South. 440; Destrehan v. Fazende, 13 La. Ann. 307.
In the present case, the petitory action, claiming title to one-fifth interest in the property, was not one upon a personal liability of the defendants; but the assertion of title to a one-fifth of every part of the realty, including all real rights, such as those which Barnhart had granted to the Refining Company. The bringing of the oil and gas to the surface merely changed its location, and, if it had remained upon the property, the final judgment in the petitory action would have been as complete a recognition of plaintiffs’ one-fifth interest therein as it was of the soil, and it would have been, therefore, a proper object of the suit for partition. Did the fact that the other co-owner and his lessee sold or reduced the minerals to money destroy this right which the plaintiffs would otherwise have had? I think the clear purpose and effect of the law, as announced in article 503 of the Code, is that the rights of the parties shall be determined as of the date the suit for title is filed, and the final judgment must relate back to the service of citation in the petitory action. Hence all claims and counterclaims of the parties, incidental to the question of title, were suspended and remained in abeyance until that question ,was determined. As to the plaintiffs, such claims were included in the assertion of title; on the part of defendant, those for reimbursement for improvements could not arise until his assertion of ownership had failed. The proper proceeding to settle all incidental rights after deter*443mination of the issue of title was in the action of partition. Le Bleu v. North American Land & Timber Co., 46 La. Ann. 1473, 16 South. 501.
My conclusion is that, while the claim for the oil and gas would have prescribed within one year, in the absence of suit on the part of plaintiffs, the petitory action had the effect of interrupting or suspending such prescription until the question of title had been finally settled. It was a judicial assertion of every right in and to the property which a fee-simple title to the undivided interest could vest in the owner, and the judgment in plaintiffs’ favor converted the right of action into one for an accounting governed by different rules of prescription.
With respect to the separate appraisement and sale of the lease rights, I know of no way in which that can be done, since plaintiffs are entitled to have the whole property divided, without regard to the rights as between Barnhart and the Refining Company. In other words, plaintiffs are not parties to the lease, and the whole property will have to be sold, if indivisible in kind, free therefrom. The Refining Company does not own an undivided interest in the property, but the lease rights on an undivided interest. As to plaintiffs and Barnhart, the proceeds can and will be divided in proportion to their fractional interest. The lease cannot be valued and sold separately, for it would still operate upon only four-fifths of the land. Plaintiffs being entitled to have the property sold as a whole, it follows that no one can say what part of the price would represent the value of the lease rights upon an undivided four-fifths. For the same reason it would be impossible to say how much of the four-fifths of the proceeds of the entire property represented the fee, or how much the mineral rights. If it were possible to appraise and sell separately the respective interests of plaintiffs and Barnhart, then the relative rights of the lessor and lessee might be determined. But this would not necessarily produce a partition of the property, for there might be different purchasers of the two interests; and again the sale value of the whole property might be thereby diminished to the detriment of the co-owners, and especially of the plaintiffs ,who are strangers to the lease.
The distinction between a case like this and that of .improvements is that one owning or possessing a privilege upon the latter, enjoys his rights with respect to the entirety of the improvements, and adversely to the owner or owners of the soil; whereas, in the present instance, the Refining Company has only such rights as the owner of an undivided interest could convey, and which as to the other co-owners is wholly void.
For the reasons assigned, I respectfully dissent from the conclusion of the majority.
LAND, X, recused.