Article by Luther L. McDougal III
Since the landmark decision in Frost-Johnson Lumber Co. v. Salling's Heirs, it has been clear that Louisiana follows the nonownership theory of oil and gas and thus does not recognize a separate mineral estate in oil and gas. Any attempt to sell or reserve the ownership of oil and gas results in the creation of a mineral servitude. The most important legal consequence of the mineral servitude classification is that, unlike a mineral estate, which can be created in perpetuity with no obligation on the owner to use his rights, a servitude is subject to prescription of nonuse for ten years. Until the adoption of the Louisiana Mineral Code, the courts of Louisiana were forced, except for occasional, limited, statutory provisions, to adapt the provisions of the Louisiana Civil Code to resolve problems concerning mineral servitudes. Of course, mineral servitudes presented considerably different problems from the servitudes envisioned by the redactors of the Civil Code. Over time the Louisiana courts, through a pragmatic consideration of these differences, developed the doctrines applicable to mineral servitudes, which now can be viewed as a limited personal servitude. Today, most of the doctrines applicable to this new and different servitude are codified in the Mineral Code.
Article 21 of the Mineral Code defines a mineral servitude as a right in land owned by another to explore for, produce, and reduce minerals to possession and ownership. This right, which is somewhat akin to a common-law profit à prendre or easement, is a real right that can be owned separately from the ownership of the land. As the Louisiana Supreme Court stated in its 1984 opinion in Steele v. Denning, a mineral servitude ‘is a dismemberment of the title insofar as it creates a secondary right in the property separate from the principal right of ownership of the land.’ The court continued: ‘the creation of a mineral servitude effectively fragments the title such that different elements of ownership are held by different owners . . . .’ This separate right, the mineral servitude, is fully alienable and heritable. Until a separate mineral servitude is created, the ‘landowner has the exclusive right to explore and develop his property for the production of such minerals and to reduce them to possession and ownership.’
Once a mineral servitude is created, the owner of the servitude is not required to exercise the rights he has thereby acquired. However, if he does not exercise them within ten years or obtain an acknowledgement or extension of his rights within ten years, his servitude will be extinguished. Once the rights are extinguished, they cannot be resurrected; a new servitude has to be created. If the owner of a mineral servitude exercises his rights, he can use only so much of the surface as is ‘reasonably necessary to conduct his operations.’ He is also under an obligation to restore ‘the surface to its original condition at the earliest reasonable time’ to the extent practicably possible. An exercise of his rights within ten years after the creation of the servitude, if the exercise meets the requirements of the Mineral Code, will interrupt the running of prescription of nonuse and thereby prevent the extinguishment of the servitude at the end of ten years from the date of creation.
A mineral servitude owner who exercises his rights has the same freedom as a landowner in conducting his operations, but he is also subject to the same restrictions applicable to a landowner. In addition, the mineral servitude owner can protect his rights from interference or damage in the same way as can a landowner.
About the Author
Luther L. McDougal III. W. R. Irby Professor of Law, Tulane University.
Citation
61 Tul. L. Rev. 1097 (1987)