The Toklan Royalty Corporation, one of the appellants in this interpleader proceeding, assigns error to the holding of the *Page 216 district court that its one-fourth mineral interest in the SE1/4 of NE1/4 of Section 21, Township 23 North, Range 8 West, Claiborne Parish, has been lost by the prescription of ten years liberandi causa. Its rights stem from the sale, on July 5, 1921, made by R. P. Bond to S.C. Clark of a one-fourth mineral interest in the E1/2 of SW1/4, W1/2 of SE1/4, and S1/2 of NE1/4, all in Section 21. After that transaction one I. R. Bordages acquired from Clark his entire one-fourth mineral rights in the SE1/4 of NE1/4 of Section 21 (that presently under consideration); and, by mesne conveyances, the Toklan Royalty Corporation obtained such rights from Bordages.
All of the lands affected by Clark's purchase from Bond are contiguous. Moreover, in 1922, producing wells were drilled to and completed in the Buckrange Sand on each quarter-quarter section of the property, except the two comprising the E1/2 of SW1/4; and in the year 1942, some of the wells, particularly those located on the W1/2 of SE1/4, were still producing. There was no production, however, on the SE1/4 of NE1/4 (that in which Toklan Royalty Corporation acquired mineral rights) after 1929, the wells on that particular tract having been abandoned in 1929 or previously.
It is the contention of appellant, Toklan Royalty Corporation, that the sale from R. P. Bond to Clark created a servitude; that the servitude was indivisible, since it embraced contiguous lands; and that, in *Page 217 view of its indivisibility, the production upon the W1/2 of SE1/4 of Section 21 inured to the benefit of the transferees of Clark and operated as an interruption of prescription as to the entire servitude, including appellant's mineral interest in the SE1/2 of NE1/4 of Section 21.
The jurisprudence of this court is to the effect that under the provisions of the Revised Civil Code a mineral servitude results from a sale of land with a reservation of a mineral interest therein or from a conveyance by the landowner of a mineral interest in his land. With that conclusion I find myself in complete disagreement. Only two kinds of servitudes — the personal and the predial — are provided for in the Civil Code, as hereinafter shown, and it is my individual and personal belief that neither is created by the mentioned transactions. However, that jurisprudence, in a long line of decisions, has established a rule of property, and I shall recognize and respect it until changed by the Legislature, either through the adoption of a mineral code, which is very much needed in this state, or otherwise.
Since a conveyance or reservation of a mineral interest is made in favor of an individual (not in favor of an estate) it has been referred to variously by this court as the creation of a personal servitude, or of a real right in the nature of a personal servitude, or of a real right of the sort called usufruct. The personal servitude, being one of the two kinds of servitudes *Page 218 recognized by our Civil Code (Article 646), is that attached to the person for whose benefit it is established. It is of three sorts: usufruct, use and habitation.
Notwithstanding that the mineral servitude has been likened unto a personal servitude, the articles of the Civil Code dealing with that classification seldom have been employed by the court in determining mineral interests; the provisions relating to the other recognized kind, the predial or real servitude which is established on one estate for the benefit of another estate, frequently have been applied. Application of the latter provisions, found under Title IV of Book II which treats "Of Predial Servitudes or Servitudes of Land", has been justified apparently on the ground that the articles of that title are declaratory of general principles respecting real rights. Thus, in Sample v. Whitaker, Jr., et al., 172 La. 722,135 So. 38, 40, Article 802 was applied, as well as Articles 656, 657, 783, 789 and 790, the court observing: "While Article802 of Civil Code, relative to the suspension of prescription where the servitude is owned by both majors and minors, is found among those articles of the Code treating of real or predial servitudes, yet its provisions, as observed by plaintiffs, are merely declaratory of a general principle to the effect that, as to an indivisible real right or servitude, where the prescription applicable to it is suspended as to one of several joint owners of the right, it is suspended as to all of them, and this necessarily *Page 219 so, because an indivisible right or obligation cannot be extinguished in part and exist in part."
In Ford v. Williams, 189 La. 229, 179 So. 298, it was held that a mineral servitude is heritable, the court citing and relying on Sample v. Whitaker, Jr., et al., supra, and refusing to follow the provision of Civil Code Article 646, that "Personal servitudes are those attached to the person for whose benefit they are established, and terminate with his life * * *"; also it refused to follow Civil Code Article 758, reading "When the right granted is merely personal to the individual, it expires with him, unless the contrary has been expressly stipulated."
Among the numerous other cases in which mineral interests were determined in accordance with the codal articles relating to predial or real servitudes are: Louisiana Petroleum Company v. Broussard, 172 La. 613, 135 So. 1 (Articles 796 to 800, inclusive); Clark v. Tensas Delta Land Company, 172 La. 913,136 So. 1 (Articles 655 and 656); Bremer v. North Central Texas Oil Company, 185 La. 917, 171 So. 75 (Article 789); Superior Oil Producing Company v. Leckelt, 189 La. 972, 181 So. 462 (Articles 738 to 741, inclusive, 743, 793); State v. Fontenot, 192 La. 95,187 So. 66 (applying the doctrine of Sample v. Whitaker, Jr., et al., and Ford v. Williams, supra); Hightower v. Maritzky,194 La. 998, 195 So. 518 (Articles 738, 740, 741, 792); Ohio Oil Company v. Cox, 196 La. 193, *Page 220 198 So. 902 (Articles 656, 802); Hodges v. Norton, 200 La. 614,8 So.2d 618 (Article 656); Standard Oil Company of Louisiana v. Futrel, 204 La. 215, 15 So.2d 65 (applying the doctrine of Sample v. Whitaker, Jr., et al., and Ford v. Williams, supra).
Citing and relying on Sample v. Whitaker, Jr., et al., Ohio Oil Company v. Cox, and Hodges et al., v. Norton, all mentioned above, the Toklan Royalty Corporation maintains, to quote from the brief of its counsel, "that where a servitude is established upon one continuous tract of land, an indivisible servitude is created and that operation upon any part of the land serves to interrupt prescription of the servitude upon any other portion thereof." Unquestionably, the decisions thus relied on, which correctly determined the respective factual situations presented, are authority for the recognized general legal principle that a servitude is indivisible.
The source of the indivisibility of servitude theory, as pointed out in the opinions of the cited cases, is Civil Code, Article 656 (found under the title governing predial or real servitudes), which reads:
"The rights of servitudes, considered in themselves, are not susceptible of division, either real or imaginary. It is impossible that an estate should have upon another estate part of a right of way, or of view, or any other right of servitude, and also that an estate be charged with a part of a servitude. *Page 221
"The use of a right of servitude may be limited to certain days or hours; but thus limited, it is an entire right, and not part of a right.
"From thence it follows that a servitude existing in favor of a piece of land, is due to the whole of it, and to all the parts of it, so that if the land be sold in parts, every purchaser of a part has the right of using the servitude in toto." (Italics ours.)
This article contemplates, among other situations, the establishment of a road across a servient estate for the benefit of a dominant estate owned jointly by two or more persons, and a subsequent division of the dominant estate among its several owners. After the division each owner has the privilege of continuing to use the road as an entirety. Of course, the use of the servitude may be limited to certain days or hours. But each owner can only and must possess an entire right to the road, not a part of a right, because, as pointed out in the article, a physical dividing of the right of way is an impossibility. In other words the right of servitude, considered in itself, is not susceptible of division.
Again, there might arise under that article a situation where A, the owner of 30 acres of land, grants in favor of an adjoining estate, consisting of 60 acres of low, swampy land and owned by B, C and D, the privilege of removing from his (A's) property 300 yards of earth to be used in filling the dominant estate. Among those *Page 222 co-owners (B, C and D) the servitude thus established is for an entire, indivisible right; it would be impossible for each to enjoy a part of the right of servitude. And as long as the dominant estate is owned jointly, any one of the co-owners can remove earth from any part of the 30 acres, and his use of the servitude would constitute a use by the others.
But even though the right of servitude itself is not susceptible of division, those co-owners may divide the advantage of the servitude. Civil Code Article 657 states:
"Though the right of servitude be indivisible, and must be established for the whole, and not for a part, nothing prevents the advantage resulting from it from being divided, if it be susceptible of division; as, for example, the right of taking a certain number of loads of earth from the land of another, or of sending to pasture a certain number of animals on the land of another."
This codal provision commences by recognizing the mandate of the preceding Article 656 that a servitude shall be for a whole right, an entire right, not for a part of a right. Then it authorizes a dividing of the advantage resulting from the servitude when that advantage is of the kind that is susceptible of division, such as the right of taking a certain number of loads of earth from the land of another.
To continue with the above hypothetical case, suppose the dominant estate owned *Page 223 by B. C and D is partitioned in kind, each of those co-owners receiving a specific 20 acres of it; and then D sells his entire 20-acre tract to X. Further, at the time of that partition and sale (in order that each may have dirt for filling his particular parcel of low land) B agrees to take 100 yards of earth from the East 10 acres of A's servient estate, C agrees to take a like amount from the center ten acres, and X (who succeeded to all of D's rights) agrees to take a like amount from the west 10 acres. Would such an agreement be effective? Clearly it would be under the provisions of Article 657. By that agreement the right of servitude is not divided; the complete privilege of enjoying the servient estate remains. Neither has there been an increase of the burden on the land, since only 300 yards of earth (the amount contemplated by the servitude) can be removed from the whole 30-acre tract. Instead of increasing the burden, the agreement, as hereinafter pointed out, might possibly result in a decrease of it. That which is divided by the agreement is only the advantage resulting from the servitude, "the right of taking a certain number of loads of earth from the land of another." As said in Civil Code Article657 an advantage of that kind is susceptible of division, and nothing prevents its being divided.
Let us consider now certain articles of the Civil Code which relate to the loss by prescription of a servitude and its advantage, found under the title respecting predial *Page 224 servitudes and in the section entitled "HOW SERVITUDES ARE EXTINGUISHED", employing for the purpose of the consideration the same hypothetical case.
Article 783 provides in part that:
"Servitudes are extinguished:
* * * * * * "By prescription resulting from nonusage of the servitude during the time required to produce its extinction."
* * * * * * According to Article 789, "A right to servitudes is extinguished by the nonusage of the same during ten years."
In the hypothetical case, before a partitioning of the dominant estate, if any one of the co-owners uses the right of servitude, removing dirt from any part of the servient estate as he has the right to do, his enjoyment of it interrupts the current of the ten year non-user prescription with respect to all of the co-owners; for, as stated in Article 801, "If the estate in whose favor a servitude is established belongs to several and has never been divided, the enjoyment of one bars prescription with respect to all."
But after the partitioning of the dominant estate, and after the execution of the agreement relative to the removal of earth from designated areas of the servient estate, each of those who were co-owners, or his successor in title including X, must make *Page 225 use of the particular area allotted to him, otherwise prescription will run on the servitude, as well as its advantage, in so far as his allotted area is concerned. Supporting this statement is Civil Code Article 803, reading in part:
"Partition of dominant estate — Prescription. — When the estate to which the servitude is due ceases to be undivided, by means of a partition, each of those who were the coproprietors, only preserves the servitude by the use he makes of it, and the others lose it by non-usage during the time required for prescription.
* * * * * *." And if the ten year non-user prescription is permitted to accrue on any of the designated areas, the servitude to the extent of that unused portion is extinguished; and it is reduced to that which has been preserved, by enjoyment of the right thereby afforded, from the accruing of prescription. To quote Article 798, "If * * * the owner has enjoyed a right less extensive than is given him by his title, the servitude, whatever be its nature, is reduced to that which is preserved by possession during the time necessary to establish prescription."
Dealing with prescription as applied to the right of servitude to draw water from a well, and perhaps of much significance here since the instant appeal involves the drawing of oil from wells, are the following provisions found in Civil Code Article *Page 226 799 and the second paragraph of Article 803:
"799. Use of incidental right — Loss of all rights. — If the owner has merely enjoyed an accessory right, which was necessary to his right of servitude, he will not be considered as having used his right of servitude.
"For example, if he who has the right of drawing water from the well of his neighbor, has passed often through the land of the latter, and gone to the well without drawing any water during the time required for prescription, he will have lost his right of drawing water without acquiring that of passage, which was merely accessory to the right of drawing water."
* * * * * * "803.
"If a servitude be due to several persons, but on different days, as the right of drawing water, he who does not exercise his right, loses it, and the estate subject to the servitude becomes free from it, as respects him."
Testing the claim of appellant, Toklan Royalty Corporation, by the above analysis of the mentioned codal articles, it appears that a mineral servitude was created by the sale on July 5, 1921, from R. P. Bond, the landowner, to S.C. Clark of a one-fourth mineral interest in the E1/2 of SW1/4, W1/2 of SE1/4 and S1/2 of NE1/4, all in Section 21. What Clark purchased was a whole right, an entire right, to take one-fourth *Page 227 of the minerals from Bond's described land; he did not acquire one-fourth of a right (an impossibility) to take such minerals. As was said in Clark v. Tensas Delta Land Company, 172 La. 913,136 So. 1, 2, "According to article 656 of the Civil Code, it is not possible for a person to have only a part of a servitude on another person's land, although, according to article 657, the benefits or advantages resulting from a servitude may be divided * * *." To paraphrase, by employing the example given in Civil Code Article 657, Clark possessed an entire right (not a part of a right) of taking a certain number of loads of earth from the land of another.
When, thereafter, Clark sold and assigned to I. R. Bordages all of his one-fourth mineral interest in and to the SE1/4 of NE1/4 of Section 21, a new servitude was not created; involved was merely the transfer of an entire (not of a part) incorporeal real right under the servitude established by the sale from Bond, the landowner, to S.C. Clark. See Deas v. Lane,202 La. 933, 13 So.2d 270. Neither was the Clark servitude divided; the transfer effected only a division of the advantage of the servitude. By the transaction Clark divested himself of the privilege of taking one-fourth of the minerals from the designated and particularly described 40 acres, along with his right of use and possession of that tract; Bordages acquired those rights, the entire advantage of the servitude to the extent of the mentioned area. *Page 228
It is on the rights thus received by Bordages that the instant claim of Toklan Royalty Corporation is founded, appellant having acquired, by mesne conveyances, Bordages' one-fourth mineral interest in and to said SE1/4 of NE1/4 of Section 21.
Admittedly, there has been no enjoyment of the servitude to the extent of that 40-acre tract since 1929, in which year the last well thereon was abandoned and the last production obtained. However, continuous production to date has been had on the W1/2 of SE1/4 of Section 21, a part of the contiguous tract on which the Clark servitude was established. Because of such continuous production and the contiguity of the property, appellant invokes the indivisibility of servitude theory and contends that the current of prescription has been interrupted as to the 40 acres in question.
As before shown, to preserve a servitude, it must be used; a lack of use is the basis for losing it by prescription; it is extinguished by its non-usage during ten years. Civil Code Articles 789 and 3546. And when an entire right in only a determinate part of a servitude is enjoyed or used, thus protecting such part from accruing prescription, to that which is preserved the servitude is reduced. Civil Code Article 798. Moreover, by the reduction necessarily there results a corresponding decrease in the burden on the servitude.
S.C. Clark, immediately after his acquisition from R. P. Bond, the landowner, had the right to enjoy the advantage of the *Page 229 servitude on all of the land affected. His was the privilege of withdrawing one-fourth of the minerals therefrom. But on selling and assigning to Bordages (Toklan Royalty Corporation's author in title), without any reservation whatever, his one-fourth mineral interest in the SE1/4 of NE1/4 of Section 21, he relinquished his right to the use, possession and control of that 40 acres; and his rights under the servitude became less extensive.
Bordages, by the transaction, obtained complete control of the servitude to the extent of that 40-acre area, and he, or his assigns, had the entire and exclusive right of enjoying the advantage (one-fourth of the minerals) that it afforded. Such advantage was so enjoyed from 1922 to 1929, during which period producing oil wells occupied the property. But for more than ten years after 1929 the advantage of the servitude respecting the 40 acres was not enjoyed by Bordages or his assigns (including Toklan Royalty Corporation), as was possible, and to that extent the servitude has been extinguished by prescription.
The use (continuous production to date on the W1/2 of SE1/4 of Section 21) made of the remaining portion of the servitude is unavailing to Toklan Royalty Corporation. For more than ten years neither Clark, who originally acquired the servitude, nor any one holding title from him to that remaining portion, has been a co-owner of, or has held any interest whatever in, the *Page 230 servitude respecting the SE1/4 of NE1/4 of Section 21, now claimed by such appellant.
My conclusion on this appeal is not at variance with the final result of any case in our jurisprudence. True, in some of the opinions there has been used the broad, general language that a "mineral servitude is indivisible and it must stand or fall as a whole". But an examination will reveal that every decision that decreed a suspension or interruption of the ten year non-user prescription under the indivisibility theory was based on a factual situation presenting the element of coproprietorship or co-ownership; in each case someone owned a fractional interest throughout the whole servitude against which prescription was pleaded.
Thus there are cases in which was applied Civil Code Article802, reading, "If among the coproprietors there be one against whom prescription can not run, as for instance, a minor, he shall preserve the right of all the others." Among these are Sample v. Whitaker, Jr., et al.; State v. Fontenot; Ohio Oil Company v. Cox, and Standard Oil Company v. Futral, all cited supra. In each it was held that prescription on the entire servitude was suspended by the intervention of a legally incapacitated person, both as to him and the major owners. But it is to be noted that the legally incapacitated person, in each instance, owned a fractional interest throughout the whole servitude; he was a co-owner with the *Page 231 others, and Civil Code Article 802 was correctly applied.
In Hodges v. Norton, supra, which concerned the interruption of prescription by drilling operations, there was present also the mentioned element of coproprietorship or co-ownership. The widow and heirs of Edmond W. Hodges owned a fractional interest throughout the entire servitude; their ownership was common to that of all other owners of rights in the servitude. And the decision that prescription was interrupted by the drilling operations is sustained by Civil Code Article 801, reading: "If the estate in whose favor the servitude is established belongs to several and has never been divided, the enjoyment of one bars prescription with respect to all." That can not be said of the mineral servitude presently under consideration. No person owns an undivided interest throughout the servitude as originally established by the sale from R. P. Bond to Clark.
It is true that the conclusion which I reach herein is in conflict with the holding of this court on the original hearing in Byrd v. Forgotson, 213 La. 276, 34 So.2d 777, with which I dissented; but that decision is not yet final as the case is now pending on an application for a rehearing.
The cases of Patton v. Frost Lumber Industries, 176 La. 916,147 So. 33, and Connell v. Muslow Oil Company, 186 La. 491,172 So. 763, stand simply for the proposition *Page 232 that once a landowner has granted a mineral servitude on his land he can not thereafter divide the servitude, in which he has no interest, by a partitioning of the land's surface area. Of course this is sound, for, as pointed out by the court, to effect a division of the servitude in that manner would be to force a mineral servitude owner to carry on innumerable drilling operations to keep his servitude alive. Obviously, these cases are not relevant here.
To show that it is not entirely correct to say that "a mineral servitude is indivisible, and it must stand or fall as a whole", we need only analyze certain decisions of this court in which servitudes, to use the expression of Civil Code Article 798, were actually reduced to that part which was preserved. First we consider the Sample v. Whitaker cases, both of which arose out of the same transaction. In a single deed of date November 20, 1911, S. G. Sample sold and conveyed to York Whitaker, Jr., with reservation of all of the mineral rights thereto, a continuous tract of land containing 160 acres and described as the S1/2 of the NE1/4 and E1/2 of the SE1/4, Section 5, Township 13 North, Range 13 West, DeSoto Parish, Louisiana. By this deed one mineral servitude on the entire 160 acres was established in favor of Sample. Later, York Whitaker, Jr., sold to Isaac Whitaker, without mentioning the reservation, the S1/2 of NE1/4 (80 acres). After the elapse *Page 233 of more than ten years from the date of the creation of the servitude, Sample and his children (his wife having died in the meantime and the property belonged to the community estate) sued in two separate actions to be recognized as the owners of the mineral rights in the entire 160 acres, they impleading in one York Whitaker, Jr., and in the other Isaac Whitaker. The Isaac Whitaker suit, in which the defendant had pleaded the prescription of ten years acquirendi causa, was the first to reach this court. 171 La. 949, 132 So. 511. Holding that a mineral servitude can be extinguished by the prescription thus pleaded, we remanded the case so that evidence could be received on the plea. Subsequently, the York Whitaker, Jr., suit, involving defendant's plea of prescription of ten years liberandi causa, was considered by us on appeal. 172 La. 722,135 So. 38 (cited supra). The court applied the provisions of Civil Code Article 802, as above shown; it overruled defendant's plea of prescription; and it decreed to be in full force and effect the servitude in favor of the Samples on the 80 acres belonging to York Whitaker, Jr. Therein it was said that the servitude was indivisible and that the minority of some of the co-owners had suspended prescription as to both the majors and the minors. Less than a year later the Sample v. Isaac Whitaker action (that previously remanded) returned here. 174 La. 245,140 So. 36. On the hearing the court maintained the plea of ten years' prescription *Page 234 acquirendi causa respecting the Isaac Whitaker 80-acre tract and rejected the demands of the Samples. The effect of that decision, obviously, was to reduce the Sample servitude — the servitude that was established on the entire 160 acres of contiguous lands when S. G. Sample, on November 20, 1911, and by a single deed, transferred the lands to York Whitaker, Jr., reserving all of the minerals.
Similarly the decision in Arent v. Hunter et al., 171 La. 1059,133 So. 157, 162, effected a reduction of a servitude. In that case Hunter and McCormick, as owners in fee of a large tract of land, granted to the Producers' Oil Company a mineral lease on five non-contiguous parcels of the land. Later, those fee owners sold the land, reserving unto themselves all of the mineral rights therein, thus creating in their favor a single mineral servitude on the entire tract. Eventually, by numerous transactions, plaintiff Arent became the owner of the land and also of all of the mineral rights therein, except those in and under the five non-contiguous parcels covered by the Producers' Oil Company lease. The excepted mineral rights were still owned by Hunter and McCormick; all others had been sold or renounced by them to Arent. On one of the non-contiguous parcels there was obtained a producing gas well. In his suit against Hunter and McCormick to be declared the owner of the mineral rights in all of the five non-contiguous parcels, Arent pleaded the prescription of ten *Page 235 years liberandi causa. The court, in maintaining the plea as to all of the parcels except that on which the well was drilled, observed: "Long prior to January 16, 1928, the day on which the prescription was interrupted, Hunter and McCormick had sold or renounced to the plaintiff, Arent, the owner by a prior purchase of the tract of land itself, all the mineral rights on the 987.26 acres of the tract not included in the grant to the Producers' Oil Company, which served to connect the five separate parcels of land covered by the grant. Therefore, when Arent, the owner of the land, also became the owner of the servitude resting thereon, the title of the latter became merged with the title of the former and was extinguished by confusion. Civ. Code Art. 783. When this occurred, Hunter and McCormick owned no mineral rights on the Seale place, except those on the five noncontiguous parcels of land covered by the grant to the Producers' Oil Company. The servitude upon the five noncontiguous parcels of land became five distinct servitudes, and the exercise of the servitude on one of the parcels by the withdrawing of gas from the well drilled thereon some nine years before, did not constitute an exercise of the servitude upon the four noncontiguous parcels. * * *"
Again in Spears v. Nesbitt, 197 La. 931, 2 So.2d 650, this court effected a reduction of a mineral servitude, holding that prescription, because of non-usage, had accrued *Page 236 as to one portion of it, but not as to the remainder, which was continued in full force.
To summarize, with reference to the claim involved in the instant appeal, Clark, who acquired the servitude from Bond, could not divide the right that he received. As pointed out above the right of servitude, considered in itself, is not susceptible of division; it is indivisible. It is impossible to transfer to another a part of a right. But Clark could and did divide the advantage of his right of servitude. To Bordages he conveyed the entire advantage of the servitude as to the SE1/4 of NE1/4 of Section 21, which ultimately was acquired and owned by appellant, Toklan Royalty Corporation. Thus Bordages, or his successor, had a full and complete right to explore for and reduce to possession the minerals under the 40 acres, with the obligation, of course, of distributing the minerals obtained according to the ownership thereof. Since, however, that advantage was not enjoyed for more than ten years, and during that period there existed with respect to it no coproprietor relationship between its owner and a legally incapacitated person or any one owning an interest in the used portion of the original servitude, the advantage has been lost by prescription and the servitude to that extent extinguished and reduced, just as was held by the district court. This conclusion is supported not only by the provisions of the Civil Code, but also by logic. *Page 237 Clearly it would be unreasonable to hold that the efforts or status of a person who is without any interest whatever in the advantage of a servitude can interrupt or suspend the current of prescription as to that advantage.
For the foregoing reasons I concur in the decree rendered on the appeal of the Toklan Royalty Corporation. Also, I concur in the decree as it respects the other appeals in this interpleader proceeding.