Reconciling Louisiana Mineral Code Articles 76 and 77

There is a hole in Louisiana mineral law. Put bluntly, the poor legislative drafting of Louisiana Mineral Code articles 76[1] and 77[2](“article 76” & “article 77”) created an unnecessary ambiguity concerning the conveyance of reversionary interests in mineral servitudes. Article 76 states, “The expectancy of a landowner in the extinction of an outstanding mineral servitude cannot be conveyed or reserved directly or indirectly.”[3] Article 77 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.[4]

Articles 76 and 77, read in pari materia, seem to create a loophole in which crafty parties (or perhaps their savvy attorneys) may gain the same effect as the restriction placed by article 76. Such a situation is illustrated by the following hypothetical:

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 the transaction 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.[5]

The circumstances exhibited in the above fact pattern as applied to the articles using statutory interpretation methodology, jurisprudence, and bare logic, suggest two conclusions: (1) the mineral code contains unnecessary ambiguities and (2)  the laws  actually intend for indirect conveyances of reversionary rights to be permissible (subject to proper circumstances).

General Legal Doctrines

The object of the abovementioned Transfer is a mineral servitude.[6]  As a mineral right, a mineral servitude is an incorporeal immovable subject to the law of sales.[7] Only a landowner who also owns the right to explore for and produce minerals may create a mineral servitude.[8] Because the mineral servitude burdens the land on which it lays, the right to create and grant such a burden only lies with the landowner. A landowner may create a mineral servitude through two methods­— outright conveyance of the mineral servitude or conveyance of the parcel of land with a reservation of mineral rights both create mineral servitudes.[9]

Mineral Code article 18 dictates the servitude holder and the landowner cannot be the same.[10] A contrario, if a mineral servitude exists, the landowner does not have the rights to explore or produce. Those rights represented by the servitude[11] revert to the owner of the land upon the extinction of the mineral servitude.[12]Mineral servitudes may be extinguished by liberative prescription, confusion, renunciation, expiration of servitude term, the occurrence of a dissolving condition, or extinction of the right of him who established the servitude.[13]

Because a mineral servitude is subject to the law of sales, the sale must be made in writing, either by authentic act or private signature.[14] The parties to the act of sale or promise of sale are bound from the time the act is made.[15] The act of sale must be consensual between the parties and follow certain descriptive requirements as to the thing sold and price paid.[16] There is an implied warranty associated with every act of sale of immovable property.[17]

Mineral Code Article 76

Article 76 of the Louisiana Mineral code provides, “The expectancy of a landowner in the extinction of an outstanding mineral servitude cannot be conveyed or reserved either directly or indirectly.”[18] Under Civil Code article 2448,[19]  sales of incorporeal immovables are permitted absent prohibitions by law; article 76 is one such prohibition. The official commentary states that article 76 was drafted in light of the Louisiana Supreme Court’s decision in Hicks v. Clark[20]; “ insofar as it provides that the reversionary interest is not an object of commerce.”[21] The “expectancy” is not the same in the civilian tradition as it is in the common law tradition.[22] The jurisprudence, however, has used the term “reversion” to describe the re-unification of the landowner’s full rights upon the extinction of the servitude.[23]

Classification of the reversionary interest is difficult, in that it may be classified either as a hope or a future thing. The Civil Code defines these two terms in light of their sale. The sale of a future thing is the sale of something not yet in existence,[24]  while the sale of a hope may be the object of a sale.[25]

Article 76 cannot be read as referring to a future thing. The sale of a future thing is the sale of something that has not yet come into existence. The purported mineral servitude cannot exist at the time of the purported sale because the land is already burdened by an existing servitude. It is a legal impossibility for two servitudes exist over the same thing at the same time.[26] The purported servitude cannot exist until the previous one is extinguished because the old servitude serves as an obstacle to the new one. The landowner has little control over when the old mineral servitude is extinguished, except in cases of acknowledgement.[27] If the servitude holder interrupts prescription, extinction of the servitude by liberative prescription is suspended until the interruption ceases. If the landowner offers to buy back the servitude, his efforts may be thwarted by an uninterested servitude holder. The landowner may not restrain the servitude holder from full enjoyment.[28] Because the extinction of the servitude is fundamentally uncertain for the landowner, the reversion is uncertain, which would make the reversion a hope, not a future thing.

In Hicks v. Clark,[29] the Louisiana Supreme Court addressed the issue of “whether a landowner who has mineral servitudes outstanding against his estate can sell the land and reserve the reversionary rights, or as the owner sell to another the reversionary rights. . . . ”[30] The plaintiffs in the suit favored a finding that such a reservation/sale was permissible. In their arguments, they equated a reservation/sale of reversionary interests with a sale of a hope.[31] The court found that if the sale was a sale of a hope, then the reversionary interest could be potentially imprescriptible and against public policy.[32] Because the court in Hicks v. Clark found the sale of a reversionary interest as a sale of a hope to be invalid, article 76 must equate the sale of an “expectancy” with the sale of a hope.

The latter half of article 76 contains the legal prohibition to the sale of expectancies; expectancies “. . . cannot be conveyed or reserved either directly or indirectly.” “Reserved” refers to the conveyance of the land to another, with the withheld interest retained by the seller.

Conveyance of land with a reservation of the rights to explore and produce minerals creates a mineral servitude in favor of the seller of the land.

There is some ambiguity as to the meaning of “directly or indirectly.”  A direct conveyance of an expectancy would be just that, direct—language which might be similar to “I, Landowner, sell to you, Purchaser, the reversionary interest of Blackacre when the current servitude extinguishes” or “I, Landowner, sell to you, Purchaser, Blackacre with reservation of all reversionary rights upon the land.” Both are expressly prohibited by article 76. If the reversionary interest was an article in commerce, the reversion could potentially be removed from the land itself, so as to damage the whole mineral rights regime.[33] If the expectancy could be reserved, then the problem of prescription might occur.[34]What constitutes indirect conveyance/reservation is not settled. The ambiguity of “indirectly” itself might lead to the conclusion that the inquiry of whether an act violates article 76 is necessarily fact-intensive. Furthermore, the mere inclusion of article 77 mitigates the trier of fact from putting too much emphasis on article 76 without applying article 77 as well.

Application: Article 76

The “Transfer” in the hypothetical would certainly not be described as a direct sale of a reversionary interest. There is no evidence that the instrument used would be considered a direct transfer of a reversionary interest to Purchaser. Indeed the opposite is true;  by not mentioning the Old Servitude in the instrument, the Transfer was specifically designed to make the after-acquired title doctrine applicable. By not mentioning the Old Servitude, Landowner would implicitly warrant the peaceable possession of the New Servitude. At the time of the Transfer, the object is a sale of a hope because the Old Servitude had not prescribed yet. However, upon the extinction of the Old Servitude, Landowner is obliged to deliver possession of the hope. In this case, any obstruction of that obligation would be considered a breach.

Mineral Code Article 77

According to Mineral Code Article 77,

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.[35]

Article 77 is a mechanical statute and must be broken down and analyzed to grasp its true intention.

1. Element 1: “If a party purports to acquire a mineral servitude from a landowner. . .”

This requires a purchaser-party who purports to have acquired a mineral servitude from a seller-party. The acquisition does not need to be through a sale. An “acquisition” presumably refers to all legal means in which a party may acquire a mineral servitude, as a real right, (transfer, donation, conveyance, etc.). “Purports” is defined as “To express or claim, esp. falsely.”[36] If the purchaser-party purports acquisition of a mineral servitude, the purchaser-party is falsely claiming to have bought a mineral servitude from the only one who may create one, the landowner.

By this definition, “purports” necessarily assumes that the servitude transfer was invalid. Because article 77 speaks to a “purported” acquisition, it carves out an exception allowing for indirect sales of expectancies. The proceeding clauses define the circumstances for the exception.

1. Element 2: “. . . when the right purportedly acquired is outstanding in another . . .”

This element is inherently temporal in its construction. The sale of the purported mineral servitude to the purchaser-party must have been made when the right was outstanding in another. This infers another factor—the conveyance must have been made when the landowner did not have the ability to sell the right. This is a so-called “oversale.”[37]

1. Element 3: “. . . the landowner either subsequently acquires the outstanding right or is the owner of the land at the time it is extinguished . . .”

A landowner’s “acquisition” presumably carries the same definition as before and refers to all legal means of acquiring mineral rights. “. . . or is the owner of the land at the time [the mineral servitude] is extinguished” is an indirect reference the reversionary interest tied to the land.

1. Element 4: “. . . 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.”

The language of the article is not permissive. After the statutory requirements are met, article 77 then mandates that the after-acquired title doctrine will operate in favor of the purported buyer. By referencing the reversionary right of the third element, the legislature implicitly warranted the oversale of mineral servitudes by operation of the after-acquired title doctrine. The landowner loses his reversionary right as a function of his oversale and application of the after-acquired title doctrine.

The After-Acquired Title Doctrine

The after-acquired title doctrine is invoked when a seller transfers title to property to which he has no title. The doctrine operates to vest the property in the purported buyer after the seller gains proper ownership.

Two interpretations may befall the “operation of the acquired-title doctrine” clause in article 77. One interpretation would have the “operation” of the doctrine as non-permissive— once all prior requirements are met, the title vests into the purported buyer. This interpretation is supported by the rest of the statute, which states that the doctrine “operates to vest the right in the party . . . .”

The second interpretation would make “operate” a final hurdle which the purchaser must clear. By this reading, a further inquiry into the principles of the doctrine is mandated. This interpretation is supported by article 77’s official commentary in the comment’s reference to the requirement of good/bad faith.[38]Because the first interpretation is unambiguous, the second must be reconciled.

The courts applying the after-acquired title doctrine have made clear that it is a device that functions as a means of enforcing warranty sales.[39] Before the Mineral Code, there was more ambiguity as to when the doctrine would apply for mineral servitudes.[40] Article 77, however, provides the elements for the applicability of the doctrine. The jurisprudence focuses on several relevant issues as to the doctrine, the first of which is knowledge of the parties of the existing servitude. Knowledge between the parties can manifest in three ways: (1) if the landowner knew of the oversale but the purchaser did not know, (2) if the seller thought he had title but in fact did not, or (3) if both the landowner and purchaser knew of the oversale. The essential question is in which situation does the after-acquired title doctrine still apply. Because the hypothetical states both the Landowner and Purchaser knew of the outstanding servitude, only the third situation will be addressed.

The official commentary of article 77 leaves it unclear whether the parties’ prior knowledge is dispositive to the application of the doctrine,[41] but the comment states, “Article 77 does not require either or both parties to be in good faith.”[42] If one or both parties are not required to be in good faith, and if a party’s knowledge of the invalidity vitiates good faith, then according to the commentary a lack of knowledge is not required by either party, or put inversely, both parties may know of the invalidity (the preexisting servitude) during the transaction.

The commentary specifically addresses the possibility that intentional oversales might occur, but does not seem to mind if they do.[43]Instead, the focus is on the duration of the prescriptive period. This concern is in line with the public policy spouted in Hicks, the basis of article 76, where the court restricted reversionary rights based on the potential for an imprescriptible period.

It is recognized that the commentary is not the law, but since the passing of the Mineral Code, few courts have directly applied 76 and 77.[44]In Dillon v. Morgan,[45] the plaintiff bought from defendant a parcel of land subject to a reservation by the defendant of one-half of the minerals. When the transaction occurred there was a pre-existing mineral servitude over one-half of the minerals. The pre-existing one-half servitude was created by sale with reservation between the defendant and the previous landowner, so there was no question that the defendant had knowledge of the preexisting servitude. The existence of the pre-existing servitude was not apparent[46] and was not declared to exist by the defendant in the deed with the plaintiff.[47] The court found that the defendant breached his implied warranty of sale[48] and was obligated to deliver proper title.[49] The court equated the defendant’s actions to that of an “oversale” of minerals,[50]the remedy of which is the application of the after-acquired title doctrine, as codified in articles 77, 78, and 79. The defendant in Dillonraised a defense of invalidity in accordance with article 76. The court found that even though that this argument had “equitable merit,”[51] the defendant was still at fault for having committed the oversale itself; “the Plaintiff in this case did not oversell the minerals. Instead, it was the Defendant . . . .” The seller partially evicted the buyer by conveying to him a deed, which only expressed the defendant’s reservation, not the pre-existing reservation, and by doing so warranted to the plaintiff only the seller’s servitude. In warranting only one-half of the minerals, plaintiff expected that he would be receiving the other half along with the land, which was in fact still outstanding. Because the plaintiff was not able to exercise his rights over the minerals, he was evicted from actual possession. The court found the landowner’s oversale as cause of the buyer’s eviction, and thus ruled that the landowner warranted title to the mineral servitude. By warranting the extent of the oversale, the court effectively transferred the landowner’s reversionary interest to the purchaser by operation of the after-acquired title doctrine.

In Dillon, the circuit court focused on the language of the deed itself, not extrinsic evidence concerning the knowledge of the buyer.[52] By this it can be inferred that emphasis should be placed on the language of the deed itself, with little or no emphasis placed on the parties’ knowledge of the existing servitude. This has been the pattern of much of the jurisprudence surrounding the acquired-title doctrine.[53] The Third Circuit Court of Appeals decided a similar case in Rodgers v. CNG Producing,[54] in which the conveyance of the purchaser’s reversionary interest was the subject of the dispute. In Rodgers, the dispute arose when the purchaser bought land subject to an outstanding servitude from the seller-landowner in one instrument then sold the reversionary interest in the minerals back to the seller in a separate instrument on the same day.[55] The court found that the two instruments actually served as a single instrument and thus violated article 76.[56] Integral to the holding was the majority’s adoption of the trial court’s interpretation of article 77:

As I understand it, Article 77 of the Mineral Code was adopted to simply recognize the equitable principle of after-acquired title for the purpose of protecting an innocent purchaserfrom an oversale of mineral rights by a land owner [sic]. In this case, the Thompsons, the prospective purchaser of the mineral rights had full knowledge of all facts from the very beginning of the transaction.[57]

By adopting the interpretation of the trial court, the majority effectively assigned the good faith requirement to article 77. This interpretation of article 77 adds an additional requirement to the statute itself—the purchaser must be completely ignorant to the existence of previous servitudes. In actuality, this would severely limit the application of article 77 to unsophisticated buyers. Adding good faith and ignorance requirements goes against the commentary and the history of article 77.

The Louisiana Mineral Code was drafted in 1974 and enacted in 1975. The Louisiana State Law Institute, in their official recommendations for the Mineral Code,[58] infused the good faith requirement into the wording of what came to be article 77.

However, if a party in good faith purports to acquire a mineral servitude from a landowner at a time when the rights purportedly sold or otherwise alienated are outstanding in othersand if the landowner either subsequently acquires the mineral servitude rights themselvesor is the owner of the land at the time the servitude is extinguished, the after-acquired title doctrine operates to vest the rights in the party who purported to acquire them.[59] (emphasis added to highlight differences with current code)

The commentary for that recommendation goes further:

“In view of the decision rendered in Hicks v. Clark, supra, it is felt that it would be best not to permit the after-acquired title doctrine to apply to transactions in which both parties are aware that an oversale is taking place. Thus, it is recommended that the doctrine be applicable only when the overpurchaser is in good faith. This recommendation also deals with the problem of when prescription commences to run in the event of an oversale.”[60]

Presumably the legislature knew of Recommendation 66 when it passed articles 76 and 77. The obvious similarities in language are evidence of this. The legislature’s omission of the knowledge and good faith requirements in article 77 further evidences that neither is necessary for the application of the after-acquired title doctrine. The Recommendation repeats the worry in Hicks concerning prescription, but the rule concerning prescription after applying article 77 is dealt with in article 79.[61]

Application: Article 77 (and the After-Acquired Title Doctrine)

Article 77 fits nicely when applied to the aforementioned hypothetical. The first requirement is that there is a party other than the landowner who purports to have acquired a mineral servitude from the landowner. In the hypothetical, Purchaser (“P”) claims that he bought the mineral servitude in the Transfer. Second, Article 77 requires that the right was acquired when the right was not vested in the landowner. The mineral servitude was not owned by the Landowner at the time of the Transfer; it was outstanding. Because there may not be two servitudes possessing the same property at once, it was impossible for Landowner to have perfected the sale until the extinction of the Old Servitude. Third, Article 77 requires that the landowner subsequently acquire the right or be the owner of the land at the time the outstanding right is extinguished. In other words, either the landowner acquires proper title to the outstanding right by legal transfer, or he acquires the rights by operation of his reversionary right upon extinction. In the hypothetical, the Landowner is still the owner of the land upon the extinction of the Old Servitude, and thus he is the beneficiary of the reversionary interest. Only after satisfying these three elements will the after-acquired title doctrine operate to vest P with the servitude. It should be irrelevant that Landowner and Purchaser had knowledge of the existing servitude as seen before in Dillon v. Morgan, the legislative history, and the commentary.

Preferred Citation: Nicholas Antaki,  Reconciling Louisiana Mineral Code Articles 76 and 77, LSU J. Energy L. & Res. Currents (February 2, 2015), https://jelr.law.lsu.edu/?p=1147.

[1]La. Rev. Stat. Ann.  § 31:76 (1974).

[2]Id. § 31:77 .

[3]Id. § 31:76.

[4]Id. § 31:77.

[5]Second Annual Mineral Law Institute Writing Competition at Paul M. Hebert Law Center, LSU Journal of Energy Law and Resources (Nov. 13, 2013) https://jelr.law.lsu.edu/2013/11/13/second-annual-mineral-law-institute-writing-competition-at-paul-m-hebert-law-center/.

[6]“A mineral servitude is the right of enjoyment of land belonging to another for the purpose of exploring for and producing minerals and reducing them to possession and ownership.” La. Rev. Stat. Ann.  § 31:21 (1974).

[7]“A mineral right is an incorporeal immovable. It is alienable and heritable…all sales, contracts, and judgments affecting mineral rights are subject to the law of registry.” Id. § 31:18.

[8]“Except as provided in article 25, 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.” Id. § 31:24.

[9]See Luther L. McDougal III, Louisiana Mineral Servitudes, 61 Tul. L. Rev. 1097, 1101 (1987).

[10]See supra note 3.  [I think this cite is wrong. This sentence talks about art 18 but you are citing to note 3 which is R.S. 31:76]

[11]“A mineral servitude is the right of enjoyment of land belonging to another for the purpose of exploring for and producing minerals and reducing them to possession and ownership.” La. Rev. Stat. Ann.  § 31:21 (1974).

[12]Hicks v. Clark, 72 So. 2d 322, 325 (La. 1954).

[13]La. Rev. Stat. Ann.  § 31:27 (1974).

[14]La. Civ. Code. Ann. art.  2440 (2013).

[15]Id. art. 2442.

[16]Id. art. 2439.

[17]“The seller is bound to deliver the thing sold and to warrant to the buyer ownership and peaceful possession of, and the absence of hidden defects in, that thing.  The seller also warrants that the thing sold is fit for its intended use.” Id.  art. 2475; “The seller warrants the buyer against eviction…” Id. art. 2500.

[18]La. Rev. Stat. Ann.  § 31:76 (1974).

[19]“All things corporeal or incorporeal, susceptible of ownership, may be the object of a contract of sale, unless the sale of a particular thing is prohibited by law.” La. Civ. Code. Ann. art. 2448 (2013).

[20] La. Rev. Stat. Ann.  § 31:76 Cmt. (1974); Hicks v Clark, 72 So.2d 322 (La. 1954).

[21]La. Rev. Stat. Ann.  § 31:76 Cmt. (1974).

[22]“Expectancy” in the Common Law is defined as “1.  Property. An estate with a reversion, remainder, or an executory interest.” Bryan A. Garner, Black’s Law Dictionary 697 (10^th ed. 2014).

[23]Hicks v. Clark, 72 So. 2d at 325.

[24]La. Civ. Code. Ann. art. 2450 (2013).

[25]Id. art. 2451.

[26]“The usufructuary has a right to the enjoyment of predial servitudes due to the estate of which he has the usufruct…” Id. art. 565. Two servitudes with overlapping or identical rights would necessarily impede upon both servitudes’ rights of enjoyment.

[27]See McDougal, supra note 9, at 1156.

[28]La. Civ. Code. Ann. art. 565 (2013).

[29]Hicks v. Clark, 72 So. 2d 322 (La. 1954).

[30]Id. at 324.

[31]Id.

[32]

Under the appellants [Hicks] contention that the sale of a reversionary interest is the sale of a hope, the owner of an estate by conveying all of the oil, gas, and other minerals lying thereunder would create a servitude, and in the same act in which this servitude was created he could also convey unto his vendee the reversionary right, and thus the vendee would acquire the hope of the extinguishment of his own servitude… If the appellants are correct in their contention that the sale of the reversionary right is a sale of a hope, the hope could thus be fulfilled anytime in the future, and the mineral servitude which would become effective would cause the land to be burdened with a mineral servitude for a longer period that 10 years without user, contrary to the public policy of this state that the right to explore for oil, and other minerals in the absence of use reverts to the land in a period of 10 years.

Id. at 325.

[33]See John B. Hussey, Jr., Mineral Rights and the After-Acquired Title, 18 La. L. Rev. 312, at 315 (1958).

[34]Id.

[35]La. Rev. Stat. Ann. § 31:77 (1974).

[36]Bryan A. Garner, Black’s Law Dictionary [Insert page number] (10^th ed. 2014).

[37]See Rodgers v. CNG Producing Co, 528 So. 2d 786, 790 (La. Ct. App. 3 Cir. 7/7/88).

[38]La. Rev. Stat. Ann.  § 31:77 Cmt. (1974).

[39]See Hussey, supra note 33.

[40]Id. at 314.

[41]La. Rev. Stat. Ann. § 31:77 Cmt. (1974).

[42]Id.

[43]Id.

[44]Dillon v. Morgan, 362 So. 2d 1130 (La. Ct. App. 2 Cir. 8/28/78) (en banc); CNG Producing Co, 528 So. 2d 786 (La. Ct. App. 3 Cir. 7/7/88).

[45]Morgan, 362 So.2d 1130. [ADD PINCITE HERE OR USE “SEE” IF NO PINCITE]

[46]See Richmond v. Zapata Dev. Corp., 350 So. 2d 875 (1977) (implied warranty is mitigated by apparent servitudes upon the land).

[47]Morgan, 362 So.2d  at 1131.

[48]“Warranty is in essence a continuing guarantee to the buyer by the seller-warrantor and one of its principle objectives is maintaining the buyer in peaceable possession of the property.” Id. at 1132.

[49]“By whatever name [estoppel, warranty, or deed], the principle is sound that a seller should not be allowed to obligate himself to deliver and to warrant title and peaceable possession to a buyer of a thing and then by his own act or claim to derogate from, or to assert rights contrary to, his obligations.” Id.

[50]Id. at 1133.

[51]Id.

[52]Morgan, 362 So.2d at 1135 (Price, J. dissenting).

[53]See McDonald v. Richard, 203 La. 155 (1943); St. Landry Oil & Gas Co. v. Neal, 166 La. 799 (1928).

[54]CNG Producing Co, 528 So. 2d 786.

[55]Id. at 789.

[56]Id. at 790.

[57]Id. at 789 (emphasis added).

[58]George Hardy III, Suggested Principles of Louisiana Mineral Law – A Basis for Reform –Expose Des Motifs, Recommendation No. 66, La. St. L. Inst. 98 (1971).

[59]Id.

[60]Id. at 99.

[61]

If the landowner who purported to create the servitude remains the owner of the land at the time of the extinction of the previously outstanding rights, the party in whose favor the doctrine operates has whatever time remains between the date of vesting of title in him and ten years from the date of the transaction by which he purported to acquired in which to exercise his rights.

La. Rev. Stat. Ann. § 31:79 (1974).