(92 So.) tiff sold a part of the land in which defend-, who had the right to impose upon it any ant had acquired the mineral rights. On servitude or real obligation that he might the 22d of August, 1912, plaintiff sold to have seen fit to impose upon it, had, by his John Murray and his wife the S. W. 4 of acknowledgment of the servitude or real obliS. W. 4 of section 28 in township 21 north, gation in favor of the party in whose favor range 15 west, and that part of the N. W. it had been previously granted, imposed the of S. W. 4 that is on the south side of the obligation anew, as a condition of the new center line of Black bayou, in the same sec- title, acquired by the purchaser of the land. tion. Defendant then owned half of the min- Those decisions would be appropriate if John eral rights in the S. W. 4 of the S. W. 4 Murray or his wife should, within 10 years of the section, and all of the mineral rights from the date of their purchase from plainin that part of the N. W. 4 of S. W. 4 that tiff, contest defendant's right to the mineral is on the south side of the bayou, together oil or gas in the land which they, John Murwith the mineral rights in that part of ray and his wife, bought from plaintiff. But plaintiff's land on the north side of the bayou, the acknowledgment made by plaintiff, in her being the remaining part of the N. W. 4 of sale of a part of her land to John Murray S. W. 4 and all of the S. W. 4 of N. W. 4 and wife, that the minerals or mineral rights of section 28. It was acknowledged in the in that part of the land had been sold to the deed that John Murray and his wife took the Producers' Oil Company, was nothing more land subject to the previous sale of the min- than a statement of fact, with regard to the erals or mineral rights to the Producers' Oil land she was selling to John Murray and Company, defendant herein. The acknowl- wife. It did not purport to be-and was not edgment or reservation was stated thus: —a waiver or an interruption of the prescription that was accruing against the mineral rights which the Producers' Oil Company had acquired in the land that plaintiff retained. There was no change or impairment of her title to that part of her land lying on the north side of Black bayou; that is, the land in which the mineral rights are now contested. "The vendor herein specially reserves and excepts from this sale all of the oil, gas and other minerals in and under said land, with the right of ingress and egress in order to mine and produce the same; the oil, gas and other minerals under said land, with the right to enter upon said land at any time for the purpose of removing the same, having been heretofore sold by J. M. Sellington to the Producers' Oil Company, as shown by act of sale recorded in the recorder's office, Caddo parish, La." The decision in Nabors Oil & Gas Co. v. Louisiana Oil Refining Cor., 151 La. 361, 91 South. 765, is more appropriate to this case In Baker v. Pena, 20 La. Ann. 52, it was than is the ruling that was made in Frostsaid: "Where a servitude is once established on property, it takes 10 consecutive years of nonuse by the party in whose favor it is established, to entitle the party on whom it is imposed to prescribe against the right. * # "A recognition of the right of servitude by the party owing it will interrupt prescription, which only begins to run again from that date, and must continue for 10 years from the date of the interruption before it is prescribed." In Frost-Johnson Lumber Co. v. Nabors Oil & Gas Co., 149 La. 100, 88 South. 723, it was held that an acknowledgment made in a deed by which a party bought land subject to a previous sale of the mineral rights, acknowledging that the seller had sold the mineral rights to a party named in the deed, interrupted the prescription of 10 years, and that the 10 years commenced anew from the date of the acknowledgment. But the theory of that decision, like the ruling in Baker v. Pena, was that the purchaser of the land, Johnson Lumber Co. v. Nabors Oil & Gas Co., "Saving and excepting and reserving unto the said vendor, his heirs and assigns, all oil and gas and other valuable minerals that may be under the surface of said land." In the sale of the land, by Sample to Mose ley, there was no reference to the previous sale of the mineral rights. Whatever rights Sample reserved in his sale of the land to Moseley were reserved to Sample himself, and to his heirs and assigns. The Nabors Company did not attempt to exercise or assert the rights acquired from Sample, within 10 years from the date of the company's purchase of the rights, but did assert the rights, in the suit against the Louisiana Oil Refining Corporation, within 10 years after the sale by Sample to Moseley. This court held that the reservation made by Sample in his sale of the land to Moseley did not interrupt the 10-year prescription against the rights which he had previously granted to the author in title of the Nabors Company. It was said: "The language of the reservation, in favor of the seller of the land, and his heirs and assigns, is too plain to admit of the construction that it was intended to inure to the benefit of plaintiff's author in title, to whom the mineral rights had already been sold. Even though it might have been so intended by S. G. Sample, it was not so acknowledged or recognized by Hill Moseley. In that respect, this case must be distinguished from the case of Frost-Johnson Lumber Co. v. Nabors Oil & Gas Co., 149 La. 100, 88 South. 723; where the purchaser of the land expressly acknowledged that the mineral rights had already been sold to the Louisiana Coal & Lumber Company; where, for that reason, it was held that the prescription liberandi causa was interrupted, and that the 10 years commenced anew from the date of the interruption. and "Of course, the reservation made by S. G. Sample, in his sale of the land to Hill Moseley, could not have prejudiced the mineral rights which plaintiff's author in title had already acquired from Sample. If those rights had been exercised within 10 years from the date when they were acquired by plaintiff's author in title from S. G. Sample, the reservation which he afterwards made, in his sale of the land to Hill Moseley, would not have availed him. But the reservation made by Sample in his sale to Moseley did not prolong the period of prescription which was running against the rights which Sample had already conveyed to plaintiff's author in title. When those rights were lost by prescription, the reservation which Sample had made in his own favor, and in favor of his heirs and assigns, was yet in effect. That reservation has not been asserted and is not in contest in this case." and it is now ordered, adjudged, and decreed that the plea of prescription of 10 years, urged by plaintiff, be, and the same is hereby, sustained; and it is therefore ordered, adjudged, and decreed that the mineral rights acquired by defendant, Producers' Oil Company, from James M. Sellington, by the deed dated the 3d of November, 1906, and recorded in Conveyance Book 42, p. 472, in the recorder's office of Caddo parish, La., are prescribed and forfeited, in so far as they affected the S. W. 4 of N. W. 4 of section 28, and that part of the N. W. 4 of S. W. 1⁄4 on the north side of Black bayou, in the same section, in township 21 north, range 15 west. Defendant is to pay the costs of this suit. No. 25169. (152 La. $8) (Supreme Court of Louisiana. May 29, 1922. I. (Syllabus by Editorial Staff.) Canals 16, 17—Obligation of owner of right of way held extinguished by purchase of dominant estate; "debtor;" "creditor;" "obligor;" "obligee." Under Civ. Code, arts. 783, 805, 2217, the obligation to fence a right of way for a canal and bridge the canal, created by the deed conveying the right of way, was extinguished, where the owner of the right of way afterwards bought the farm through which it extended, for Civ. Code, art. 2217, providing that, when the qualities of debtor and creditor are united in the same person, there arises a confusion of right, which extinguishes the obligation, uses "debtor" and "creditor" as synonymous with "obligor" and "obligee," in view of article 3556, pars. 20, 21, defining these terms. [Ed. Note.-For other definitions, see Words and Phrases, First Series, Obligor; First and Second Series, Creditor; Debtor; Obligee.] Easements 34-Servitudes extinguished by common ownership not revived by re-establishment. The other transaction referred to by defendant, in the contention that the prescription of 10 years was interrupted by an acknowledgment on plaintiff's part, is a sale made by plaintiff to Lee Charlesville, dated the 25th of June, 1917, of 10 acres of land in the W. 1⁄2 of W. 1⁄2 of section 28, township The record does 21 north, range 15 west. not show the location of the 10 acres, ex-2. actly; but, for the purpose of our ruling, we assume that it is a part of the land in which Civ. Code, art. 785, providing that, if things defendant acquired the mineral rights. At are re-established in such a manner that they the end of the description of the land sold to Lee Charlesville is this statement: "This may be used, servitudes will only have been suspended, and resume their effect, unless barsale being of the surface rights only." What red by prescription, only applies to servitudes we have said with regard to the reservation extinguished or suspended by destruction of in the sale to John Murray and wife is also either of the estates or change in their condiapplicable to the statement in the sale to tion, under article 783, subd. 1, and not to servLee Charlesville that the sale was of the sur-itudes extinguished by confusion or common face rights only. The statement does not ownership, under subdivision 3. purport to have been-and cannot be inter-3. preted as an acknowledgment of an obligation, with regard to mineral rights on land which was not being sold to Lee Charlesville, and which was not referred to in the deed. The judgment appealed from is annulled, Vendor and purchaser 265(1)-Sales; vendor's lien held to affect property as a whole, though ownership divided by vendee. A vendor's lien resulting from the sale of a farm to one who divided the ownership by granting a canal right of way through the farm (92 So.) affected the property as a whole, including that | pellant has a cause of action to compel desold as the right of way. fendant to construct the fences and maintain 4. Canals 16, 17-Obligation to fence and the bridge, we shall assume that defendant bridge held not revived by conveyance of dom-owns, not the strip of land itself, but only Inant estate by common owner. a canal right of way. It is admitted in appellant's brief-and in fact it must be conceded-that he has no claim for damages if he has not the right to compel defendant to fence the so-called right of way. Where owner of a right of way for a canal through a farm acquired title to the farm, the obligation to fence the right of way and bridge the canal, imposed by the deed granting the right of way, was not revived, under Civ. Code, art. 806, by the conveyance of the farm by its receivers, subject to a vendor's lien existing before the grant of the right of way. The pertinent facts alleged in the petition are as follows: In 1902, Hope Philips and the heirs of his deceased wife sold the farm, without any reservation or mention of any 5. Easements 34-Servitude; when revived right of way across or upon it, to J. Frankby abandonment on account of mortgages. lin Schell. In 1903, Schell sold the entire Civ. Code, art. 806, providing that the aban- farm, without any reservation or mention of donment or relinquishment of an estate on aca right of way across or upon it, to the Uncount of mortgages revives servitudes extin-ion Rice & Irrigation Company. The comguished or suspended by common ownership, pany transferred the property to Schell, as applies only to mortgages bearing on only one of the two estates, and antedating the sale that trustee, and he, as trustee, in 1906, conveyed effected the confusion and consequent suspen- tion Company, the canal right of way, 350 to a new corporation, styled Union Irrigafeet wide, extending across the farm. In the deed of conveyance, the Union Irrigation Company obligated itself, its successors and sion of the servitude. Appeal from Sixteenth Judicial District Court, Parish of St. Landry; B. H. Pavy, Judge. Suit by John M. Dufilho against Joseph Bordelon. From a judgment dismissing the suit, plaintiff appeals. Affirmed. Peyton R. Sandoz, of Opelousas, for appellant. Dubuisson & Burleigh, of Opelousas, for appellee. assigns, to construct and maintain a fence By Division B, composed of Justices tion Company is not alleged. The so-called O'NIELL, LAND, and BAKER. O'NIELL, J. Plaintiff has appealed from a judgment dismissing his suit on an exception of no cause of action. The suit is to compel defendant to fence both sides of a so-called canal right of way, extending across plaintiff's farm, to compel him to repair a bridge across the canal right of way, and to recover damages for his having taken down his fence at one end of the right of way, where it intersects a public road, allowing cattle to come in and trespass upon the farm. It is alleged in the petition that defendant owns the so-called right of way, 350 feet wide, extending entirely across plaintiff's farm. Whether he owns the strip of land itself, or only a right of way for maintaining an irrigation canal, is made doubtful by the arguments and admissions in appellant's brief. It is admitted that that part of the so-called right of way that extends across appellant's farm is only a comparatively small section of what was once an irrigation canal route, or right of way, 350 feet wide and many miles long. Its use as a canal was abandoned and the canal company went out of business several years ago. However, for the purpose of determining whether ap right of way was never fenced. In 1914, Schell, as trustee for the Union Rice & Irrigation Company, sold the farm to the Union Irrigation Company; that is, the company that already owned the canal right of way. It is contended by defendant, who now owns the right of way, that the obligation of the Union Irrigation Company to fence the right of way and to maintain a bridge across the canal was extinguished by the company's becoming the owner of both the right of way and the farm itself. The Union Irrigation Company went into the hands of receivers, who, in 1915, sold the farm to H. P. Dart, Jr., and W. K. Dart, trustees. They sold the farm to Benjamin Riseman, in 1920, and he sold it to plaintiff in the same year. It is said in appellant's brief that the receivers' sale of the farm to the Darts, as trustees, was made subject to the canal right of way; but there is no such allegation in the petition, nor is it alleged that the sale by the Darts, as trustees, to Riseman, or the sale by him to plaintiff, was made subject to the canal right of way. It may be assumed, however, and we do assume, in deciding whether plaintiff has a cause of action, that the receivers of the Union Irrigation Company sold to the Darts, as trustees, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes only that part of the farm that was not em- | sion has not lasted long enough to extinguish braced within the canal right of way, or the servitude by prescription; that is, 10 route, 350 feet wide, dividing the farm. Two years, according to articles 789, 3529, and years after the sale of the farm to the Darts, 3546. See Frost-Johnson Lumber Co. v. Salas trustees, the receivers sold the canal right ling's Heirs, 150 La. 756, 91 South. 207. of way to J. W. Billingsley, from whom de Hence it is argued that confusion, cr comfendant acquired title, whether directly or mon ownership of the two estates, does not through mesne conveyances is not alleged, really extinguish, but merely suspends, the and not important. It is said in appellant's servitude. In support of the argument, brief that Billingsley intended to operate the counsel cites article 785 of the Code, viz.: canal, from which, if the allegation were made in the petition, we would infer that Billingsley bought the entire canal route, many miles long. All of the deeds that we have mentioned were promptly recorded in the conveyance records. [1] When the Union Irrigation Company, being already the owner of the canal right of way, bought also the farm, the obligation of the company to fence the right of way and to maintain the bridge across the canal was extinguished. It is not alleged or contended that there was any contractual obligation or stipulation, in the subsequent sale of the right of way, or thereafter in the sale of the farm, to fence the right of way or to maintain the bridge across the canal. When the Union Irrigation Company had bought the right of way, but had not yet bought the farm, the company's obligation to fence the right of way and to maintain the bridge across the canal was an obligation in favor of the owner of the farm. Therefore, when the company itself became the owner of the farm, the obligation fell under article 2217 of the Civil Code, viz.: "When the qualities of debtor and creditor are united in the same person, there arises a confusion of right, which extinguishes the obligation." The words "debtor" and "creditor" are used as synonymous with "obligor" and "obligee," according to the twentieth and twenty-first paragraphs of article 3556 of the Code. If the obligation to fence the right of way and to maintain the bridge across the canal was a servitude imposed upon the right of way in favor of the adjacent farm, the obligation was extinguished as soon as the two estates had a common owner, according to the first paragraph of article 805 of the Code, viz.: "Every servitude is extinguished when the estate to which it is due and the estate owing it are united in the same hands." The article last quoted is merely a repetition or an explanation of that part of article 783, enumerating the seven means by which servitudes may be extinguished, which declares: "Servitudes are extinguished: (3) By confusion. [2] Counsel for appellant argues that a servitude that is extinguished by confusion is revived if the two estates are afterwards "If the things are re-established in such a manner that they may be used, the servitudes will only have been suspended, and they resume their effect, unless, from the time they ceased to be used, sufficient time has elapsed for prescription to operate against them." That article refers only to servitudes that have been extinguished or suspended by the first method mentioned in article 783; that is, by the destruction of either of the two estates, or by such a change in the condition of either estate that the servitude cannot be exercised. Article 783 is the first of the series of articles constituting section 5, entitled "How Servitudes are Extinguished." Immediately following that article are the articles explaining in full and dealing with, respectively, each of the seven means of extinguishing servitudes. Articles 784-788 explain (1) extinguishment by destruction of either estate; articles 789-804 explain (2) extinguishment by prescription; articles 805812 explain (3) extinguishment by confusion; articles 813-815 explain (4) extinguishment by abandonment of the estate that owes the servitude; articles 816-820 explain (5) extinguishment by a voluntary release or renunciation on the part of the owner of the estate to which the servitude is due; article 821 explains (6) extinguishment by expiration of the term for which the servitude was established or by the happening of an event the occurrence of which was stipulated as a condition on which the servitude should ter minate; and article 822 explains (7) extinguishment by the destruction or limitation (ab initio) of the right of the person who granted the servitude. The arrangement of these articles explaining "How Servitudes are Extinguished" is such, and the language is so plain, that it leaves no doubt whatever that each set of articles deals exclusively with one specified means by which servitudes nothing whatever to do with extinguishment are extinguished. Articles 784-788 have by confusion, or with any other means of extinguishment than extinguishment by de struction of either estate, or by such a change in the condition of either estate as to prevent an exercise of the servitude. If such a condition of either estate is only temporary, a re-establishment of the original condition of the estate will revive the servitude, which will then be regarded as having been suspended, not extinguished. That is the plain (92 So.) [3-5] It is said in appellant's brief that the guished by confusion, we doubt that plainsale by Hope Philips to J. Franklin Schell tiff would be entitled to the relief prayed for was made on terms of credit; that the price, in this case; that is, that defendant should or a part of it, was represented by Schell's be condemned to construct and maintain a promissory notes, which were secured by fence on each side of the canal right of way vendor's lien, and which passed into the and to maintain the bridge across the canal. hands of third parties; that the subsequent There is no prayer, specifically, for a mansale of the farm by the receivers of the Un- datory injunction, and we doubt that it ion Irrigation Company to the Messrs. Dart would affect the situation if there were such was made subject to an order of the court a prayer. An appropriate demand for enrecognizing the vendor's lien; and that the forcing the obligation, if it existed yet, Messrs. Dart were the attorneys for the would be that defendant should be condemnholders of the vendor's lien notes. There ed to pay the cost of fencing the right of are no such allegations in plaintiff's petition. way and of repairing the bridge, or surrenIf such allegations had been made, they der the property subject to the alleged serviwould not warrant the conclusion that the tude. Article 655 of the Code declares that receivers' sale had the effect of reviving the one of the essential elements or characterisalleged servitude upon the canal right of tics of a servitude is that it does not oblige way in favor of the adjacent farm. If there the owner of the estate subject to it to do was a vendor's lien resulting from the sale anything, but merely obliges him to abstain made by Hope Philips to J. Franklin Schell, from doing a particular thing or to permit the lien affected the property as a whole, in-it to be done on his estate. And article 775 cluding that part which was afterwards sold by Schell as a canal right of way, because the sale by Philips to Schell was made before the farm was divided in ownership, or before the alleged servitude was created. If the title to the farm had been taken from the Union Irrigation Company by a forced sale made in foreclosure of the vendor's lien, the purchaser would have acquired a complete title for the entire farm, and there would have been no revival of a servitude on one part in favor of another part of it. Under such circumstances, article 806 of the Code, cited by appellant's counsel, would not be applicable. That article declares merely that if, in a joint ownership of two estates, one of which previously owed a servitude to the other, the title of the common owner be conditional or defeasible as to either estate, the confusion or joint ownership Rehearing refused by Division C, composonly suspends the servitude until the happening of the condition, or until the evictioned of Justices DAWKINS, ST. PAUL, and THOMPSON. of the holder of the defeasible title. The article mentions, in illustrating how a servitude that has been only suspended by confusion may be revived: (1) The case of a person's exercising a right of redemption of a title held by the common owner; (2) the happening of a condition under which the title to one of the estates was to be forfeited by the common owner; (3) the case of an heir's being evicted from one of the estates by a nearer relation, or heir at law of the deceased; and (4) the case of an abandonment or relinquishment of the common owner's title to either estate on account of a mortgage upon it. This last illustration, of course, refers only to a mortgage bearing upon only one of the two estates and antedating the sale that effected the confusion and consequent suspension of the servitude. Even if the alleged obligation to fence the canal right of way and to maintain the bridge across the canal had not been extin declares that, even when the owner of the estate that owes the servitude is bound by his title to construct, at his own expense, whatever is necessary for the use and preservation of the servitude, he may, at any time, relieve himself of the obligation by giving up the estate that owes the servitude to the owner of the estate to which the servitude is due. All of which is consonant with article 783, No. 4, and articles 813-815, providing for the extinguishment of servitudes by abandonment of the estate that owes it. Our conclusion, however, is that the alleged obligation was extinguished by confusion when the owner of the canal right of way became also the owner of the farm to which the obligation was due. The judgment is affirmed, at appellant's cost. (152 La. 97) No. 25082. CONTINENTAL BANK & TRUST Co. v. (Supreme Court of Louisiana. May 29, 1922. (Syllabus by Editorial Staff.) 1. Appeal and error 994 (2) Judgment resting on credibility of witnesses not disturbed. Where the facts as to whether a bank ac quired a note before or after maturity and whether it knew of the want of consideration were tried first before a jury, and afterwards by the judge, with a decision favorable to plaintiff in each instance, the judgment resting on the credibility of witnesses, with whose repu For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |