On Rehearing.
Both sides applied for a rehearing of this case and it was- granted upon all issues. It has been resubmitted on the same record.
However, after careful consideration, I am of the view that only the question of whether the sale by the plaintiff and defendant, or their predecessors, to Union Power Company on December 23, 1920, of the gas rights in the lands in question, constituted an acknowledgment of all the rights of defendant sufficient to interrupt the running of prescription as it applied to Blocks B and E, referred to in the original opinion, should be reviewed. I believe that the arguments made on behalf of plaintiff, with respect to the other tracts* *965are substantially the same as those presented heretofore, with the additional suggestions, that, if the act of sale to Union Power Company, referred to above, is held to be an acknowledgement of the defendant’s rights only under the transfer of 1917 and not the creation of a new servitude confined to gas, then at the end of the ten year period, during which the Federal Petroleum’s rights were to run from 1917, the Union Power Company, in the absence of development, would have had only “one-half a servitude” as to the gas, while that flowing from the plaintiff would have continued until 1930. For this latter reason, it is insisted that plaintiff’s contention that the legal effect of the act of 1920 was to create a new servitude, confined to gas, alone, must be maintained. As to this contention, I may say that it overlooks the fact that the plaintiff’s joining in this sale had the effect of transferring to the Union Power Company, for the full life of the servitude under the Louisiana law, the rights of everyone connected with the property, since the plaintiff or its predecessors in title, were the owners of the fee, as well as one-half the minerals. Therefore if defendant’s interest had reverted to plaintiff in 1927, the latter could scarcely have questioned the right of Union Power Company to exercise its servitude as to the gas.
Upon further consideration, I am convinced that there is no distinction, in principle, between the present case and those cited by defendant in its application for a new trial, except that they involve contracts of lease, with fixed periods running beyond the original ten year life of the servitudes, whereas in the sale to Union Power Company, although the time for exercising the rights was not fixed in the act, Codal provisions and interpretative jurisprudence have conclusively limited it to ten years. In Mulhern v. Hayne et al., 171 La. 1003, 132 So. 659, 660, the plaintiff had purchased from defendant certain lands, in which the latter reserved one-half the minerals, just as was done here. The servitude arising therefrom not having been exercised, after approximately seven years, both parties “joined * * * in the execution of an oil and gas lease, affecting the entire property” to a third person, which, through mesne conveyances, passed to one of the defendants in that suit. There was no drilling or exercising of the servitude within the original period of ten years, which began with ,the reservation of one-half the minerals in the sale of defendants to plaintiff and the conventional time of the subsequent lease had not expired when the suit was filed. The case went up from a judgment sustaining an exception of no cause of action. By agreement, in submitting the exception, the lease in which both parties had joined in favor of the third' person was offered and considered and on its face showed that it had not expired when the suit was filed. In disposing of the matter, the Supreme Court of the State said:
“This court has heretofore adjudicated several cases in which it is held that a reference in a deed to a prior reservation of mineral rights is not such an acknowledgment as would interrupt an accruing prescription. It was so held in Lewis v. Bodcaw Lumber Company, 167 La. 1067, 120 So. 859, and in La Del Oil Properties, Inc. v. Magnolia Petroleum Co., 169 La. 1137, 126 So. 684.
“This case, however, is entirely different from the Bodcaw and La Del Cases. Here there is no deed in which reference is made to the ownership of minerals reserved in a prior deed. Here the plaintiff, as the ow'ner of one half of the minerals, joined the persons in whose favor the other half of said mineral rights had been reserved, in the execution of a lease, of all the oil and gas, to a third person, for a term of years extending beyond the prescriptive period, and to an indefinite future period, beyond that time, in the event oil or gas is produced from the leased land. By joining in this lease plaintiff thereby recognized all of the rights of his colessors, and he cannot escape the effect of his written acknowledgment, which, in our opinion, we must hold to be an interruption of the then accruing prescription.
“ ‘Prescription ceases likewise to run whenever the debtor, or possessor, makes acknowledgment of the right of the person whose title they prescribed.’ C.C. art. 3520.
“In the case of Nabors Oil & Gas Company v. Louisiana Oil Refining Company, 151 La. [361] 397, 91 So. 765, 778, this court held as follows:
“ ‘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.’
*966“Plaintiff’s suit is based upon the ten-year prescription liberandi causa. The pleadings affirmatively show that the lease from plaintiff and his colessors to the Louisiana Petroleum Corporation was recorded more than two years before the expiration of the prescriptive period pleaded in this suit. We are of the opinion that the judgment appealed from is correct. The plaintiff has cited many authorities' adjudicating issues which are not raised in this case, viz., the holder of a mineral lease has only the right to extract the minerals from the soil; this right is a servitude prescribed by nonuser of ten years; and the burden of proving use during the prescriptive period is upon the holder of the right.”
It is true that in the cited case, the lease which the joint owners executed included both oil and gas, whereas in the present instance the conveyance to the Union Power Company was of gas alone, but it would seem illogical, I think, to say that this act constituted the acknowledgment in writing contemplated by the Code and decisions of the Court, while the one now under consideration (dated December 23, 1920) did not, merely because only a part of the rights or servitude under the original reservation was conveyed. It was as much necessary to recognize the first act or rights acquired thereunder in the one instance as in the other, and I do not see how the subsequent transfer could have been made without admitting the existence of the source of the vendor’s (Federal Petroleum Company) interest. See also Bremer v. North Central Texas Oil Company et al., 185 La. 917, 171 So. 75. I am, therefore, convinced that the defendant is entitled to have its rights maintained in the said Blocks B and E. This serves to remove the supposed incongruity suggested in the brief by counsel for plaintiff, that the Union Power Company, under the transfer of December 23, 1920, would have had only half a servitude at the end of the first ten year period. As stated in the former opinion, the defendant or its assignees drilled a number of wells in 1929 and 1930, well within the ten year period, beginning December 23, 1920.
For the reasons assigned, the finding in favor of defendant heretofore made should be amended so as to include Blocks B and E, and as so amended, the judgment is reinstated and made final.
Proper decree should be presented.