(dissenting).
Plaintiffs, alleging that a lease executed by the State Mineral Board constitutes a cloud on their title to land covered by the lease, seek to have the lease decreed null, void, and of no effect and ordered cancelled from the records of Plaquemines Parish, *531Louisiana, insofar as it purports to cover and affect property claimed by them. Named as defendants are the State Mineral Board and the State’s mineral lessees. The State has not been made a party to this suit, and the question of whether it is an indispensable party depends here upon the nature of the action.
Plaintiffs have characterized the suit as one to remove cloud from title. It is my view, however, that plaintiffs have instituted a petitory action. In Foscue v. Mitchell, 190 La. 758, 182 So. 740, this court said:
“In determining whether a suit is a jactitation suit or a petitory action, the averments of the petition and answer must be construed in connection with their respective prayers, which fix the character of plaintiff’s action and the nature of the relief sought by the defendant. Siegel v. Helis, 186 La. 506, 172 So. 768; Rudd v. Land Company, 188 La. 490, 177 So. 583.”
Let us now examine the allegations of plaintiffs’ petition. In Paragraph 13 it is alleged “ * * * that all defendants herein arc claiming and asserting that the said lease is being maintained in full force and effect by production of oil, gas and other minerals from the properties covered by said lease including the properties owned by' petitioners * * * ”. In Paragraph 16 it is alleged that petitioners reserve “ * * * all rights to recover for any oil, gas or other minerals which may have been removed from said property by any and all defendants * * * ”. If the very lease which plaintiffs seek to have cancelled has been maintained in full force and effect by production of oil and gas by the State’s lessees, then necessarily these lessees are in actual, physical possession of the property. How else can the lessees produce oil and gas from the property except by physically going thereon, drilling a well or wells, and then continuing the operations necessary for production? As far as I can ascertain, this is the first case in the jurisprudence of this state that approves and recognizes that an action to remove cloud from title may be instituted against a defendant in possession.
Moreover, in Paragraph 15 of the petition it is alleged “That under the laws of the State of Louisiana your petitioners are entitled to have the title to their respective interests in the property described * * * recognized and decreed valid, and to be decreed the owners thereof * * * ”. Thus the allegations of plaintiffs’ petition show that they seek to be decreed the owners of their respective interests in the properties, which their pleadings show are in possession of the lessees of the State. What they have instituted, then, is unquestionably a petitory action. See C.C.P. Art. 3651.
*533The State Mineral Board, named as one of the defendants, is the agent for the State with authority to grant mineral leases on lands belonging to the State. The mineral board does not have title to state lands but acts as the State’s agent in making such leases. R.S. 30:124; see State v. Texas Co., 205 La. 417, 17 So.2d 569. It is clear that the lease which plaintiffs seek to have cancelled is one granted by the State of Louisiana through its agent, the mineral board, and that the State is in possession of the property through its lessees, which are producing oil and gas from the property. It is my conclusion that since this is a petitory action, the State is an indispensable party, C.C.P. Art. 641, and must be made a party defendant. What was said in Daigle v. Pan American Production Co., 236 La. 578, 108 So.2d 516, is pertinent here:
“ * * * the mineral board does not have title to land or mineral rights, title thereto remaining in the state. The action to establish title to real estate (LSA-R.S. 13:5062) and the petitory action which plaintiff seeks to bring against the State Mineral Board, being concerned solely with the question of title to real rights claimed for the state, the state is a necessary party, and plaintiff is without legal right or cause to maintain them as against the State Mineral Board. * * * ”
I respectfully dissent.
Rehearing denied;
HAMITER, J., concurs.