On Application for Rehearing.
PER CURIAM.In an application for a rehearing, counsel contend, among other things, that our holding in this case seriously affects the jurisprudence established in Spears v. Nesbitt, 197 La. 931, 2 So.2d 650; Ohio Oil Co. v. Ferguson, 213 La. 183, 34 So.2d 746 and Elson v. Mathewes, 224 La. 417, 69 So.2d 734.
Counsel are in error in this contention. We have merely held here, in line with International Paper Co. v. Louisiana Central Lumber Co., 202 La. 621, 12 So.2d 659, that a jactitory action may not be maintained as to mineral rights when there is outstanding of record a mineral servitude covering the land of which the plaintiff is in physical possession as owner, unless the servitude has prescribed because of nonuser. It appearing in this case that there has been a user of the original servitude, the jactitory suit must fail. However, this does not mean that our decision should be construed as holding that the contention raised by appellants relative to a reduction of the area of the servitude by the acts of the defendant may not be well founded. This question is open for determination in other litigation between the parties.
The application for a rehearing is refused.