The 2013-2014 Mineral Law Institude Writing Competition has officially opened! Details about prizes and submissions are included below. The Writing Competition Issue is included below those details.
The author of the winning submission will receive a $1000 prize and have his/her work published in the Mineral Law Newsletter, on the MLI website, and in the LSU Journal of Energy Law and Resources online companion journal, Energy Law Currents. The second place winner will receive a $300 prize and have his/her work published on the MLI website and in Energy Law Currents. The third place winner will have his/her work published on the Mineral Law Institute (MLI) website and in Energy Law Currents.
All 2L or 3L students currently enrolled full-time at the LSU Paul M. Hebert Law Center are eligible, including students graduating in the spring or summer of 2014. Previously published pieces or pieces slated for publication are ineligible.
Submissions will be considered by a panel of energy and mineral law experts selected by the Mineral Law Institute.
Students should submit a well-reasoned, researched response in article format to the attached prompt to firstname.lastname@example.org no later than 12:00pm on Friday, March 7, 2014.
All submissions should be double-spaced with 1 inch margins, appear in Times New Roman 12 point font, and should be approximately 15 pages in length. Please include a cover page providing your name, contact information, and year in law school.
Writing Competition Issue
Mineral Code art. 24 (Louisiana Revised Statute 31:24), which governs who may grant a servitude, provides that “a mineral servitude may be created only by a landowner who owns the right to explore for and produce minerals when the servitude is created.” This suggests that a landowner whose land is burdened by a mineral servitude cannot create a servitude on top of a servitude – that is, if there exists a mineral servitude entitling the servitude owner to explore for and keep all minerals produced from particular land, the owner of that land cannot create a new mineral servitude covering that land while the existing servitude remains in effect. Further, Mineral Code article 76 (Louisiana Revised Statute 31:76) states: “The expectancy of a landowner in the extinction of an outstanding mineral servitude cannot be conveyed or reserved directly or indirectly.” Thus, there is no reversionary interest that can be made an object of commerce. See Min. Code art. 76 cmt. The person who is the landowner at the time a mineral servitude terminates typically receives the benefit of that termination, which removes a burden from his land.
On the other hand, Mineral Code article 77 (Louisiana Revised Statute 31:77) codifies an after-acquired title doctrine with respect to the purported conveyance of mineral servitudes. The article states: “If a party purports to acquire a mineral servitude from a landowner when the right purportedly acquired is outstanding in another and the landowner either subsequently acquires the outstanding right or is the owner of the land at the time it is extinguished, the after-acquired title doctrine operates to vest the right in the party who purported to acquire it to the full extent of his title.” Thus, if a landowner enters a transaction in which he purports to grant a servitude to a person, but the grant cannot be given effect because of a pre-existing servitude, article 77 would seem to make the grant of a servitude enforceable when the pre-existing servitude terminates, at least in certain circumstances.
Articles 76 and 77 can come into tension. Suppose that there is a landowner (“Landowner”) whose land (the “Land”) is subject to an existing mineral servitude (the “Original Servitude”) for 100% of any minerals produced from the Land. The Landowner enters a transaction (the “Transfer”) in which he purports to transfer a mineral servitude (the “New Servitude”) to someone (“Purchaser”) who is not the owner of the Original Servitude. The instrument by which the Transfer is effected does not mention the Original Servitude or refer to the rights purportedly granted to Purchaser as being a reversionary right. The instrument (which will sometimes also be referenced as the “Transfer”) simply states that Landowner is transferring a mineral servitude to Purchaser.
Although the Transfer does not acknowledge that a mineral servitude already burdens the Land, evidence shows that Landowner and Purchaser each knew that the Land was burdened by the Original Servitude, and each understand that Louisiana law generally would prohibit Landowner from either creating a new servitude at the time of the Transfer or from transferring a reversionary interest. Further, the parties structured their transaction the way that they did so that the after acquired title doctrine might have application, in the event that the Original Servitude terminated. Finally, suppose that approximately one year after the Transfer, the Original Servitude terminates. Landowner still owns the Land, but he has had second thoughts about the Transfer. Relying on article 76, he now contends that it the Transfer is void, making the New Servitude void and unenforceable. Purchaser, on the other hand, argues that article 77 makes the New Servitude enforceable.
In Rodgers v. CNG Producing Co., 528 So.2d 786, (La. App. 3rd Cir. 1988), the Third Circuit concluded that article 76 should govern, but there was a dissent, and the Louisiana Supreme Court has not resolved the disputed issue. What is the proper resolution of the dispute between Landowner and Purchaser?