Black River Crawfish Farms, LLC v. Jack A. King, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-672

BLACK RIVER CRAWFISH FARMS, LLC

VERSUS

JACK A. KING, JR., ET AL.

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APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CONCORDIA, NO. 47,021
HONORABLE GLEN WADE STRONG, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion,
and John E. Conery, Judges.

EXCEPTION OF NO RIGHT OF ACTION
GRANTED; DISMISSAL AFFIRMED.

Paul M. Adkins
William Timothy Allen, III
Blanchard, Walker, O’Quin & Roberts
P. O. Drawer 1126
Shreveport, LA 71163-1126
Telephone: (318) 221-6858
COUNSEL FOR:
Defendants/Appellees - John Martin King, Trustee of Billy D. King
Trust, Deborah Ann King Rudolph, Trustee of Billy D. King Trust,
Michael Todd King, Trustee of Billy D. King Trust, and Stephen Paul
King, Trustee of Billy D. King Trust

James J. Davidson, III
Davidson, Meaux, Sonnier, McElligott, Fontenot, Gideon & Edwards
P. O. Drawer 2908
Lafayette, LA 70502
Telephone: (337) 237-1660
COUNSEL FOR:
Plaintiff/Appellant - Black River Crawfish Farms, LLC

John Michael Veron
Veron, Bice, Palermo & Wilson
P. O. Box 2125
Lake Charles, LA 70602-2125
Telephone: (337) 310-1600
COUNSEL FOR:
Plaintiff/Appellant - Black River Crawfish Farms, LLC

Virgil Russell Purvis, Jr.
Smith, Taliaferro & Purvis
P. O. Box 298
Jonesville, LA 71343
Telephone: (318) 339-8526
COUNSEL FOR:
Plaintiff/Appellant - Black River Crawfish Farms, LLC

Dennis Woodford Hallack
Hallack Law Firm
P. O. Box 1706
West Monroe, LA 71294
Telepone: (318) 323-7706
COUNSEL FOR:
Defendant/Appellee - Big Pine Petroleum, Inc.

THIBODEAUX, Chief Judge.

Black River Crawfish Farms, LLC (Black River) filed suit against

several mineral servitude owners, asserting restoration claims pursuant to La.R.S.

31:22 (hereinafter “Article 22”) for the contamination of its property resulting from

historical oil and gas exploration activities. Thereafter, certain alleged servitude

owners, John Martin King, Michael Todd King, Stephen Paul King, and Deborah

Ann King Rudolph, as Trustees of the Billy D. King, M.D. Revocable Trust (King

Trustees), filed a peremptory exception of prescription of nonuse. The trial court

granted the exception, dismissing Black River’s claims with prejudice. Finding no

error in the trial court’s reasoning as to the effect of the extinguishment of the

mineral servitude by prescription of ten years nonuse, we affirm the dismissal of

Black River’s claims against the King Trustees after first noticing and sustaining

an exception of no right of action against Black River.

I.

ISSUES

Black River asks this court to decide:

(1) whether the trial court’s reasons for holding that
Black River’s restoration claims under Article 22
were prescribed by nonuse are supported by the
law and the evidence;

(2) whether the trial court’s reasons for holding that
Black River’s claims against the King Trustees
were barred by the subsequent purchaser rule are
supported by the law;

(3) whether the trial court’s reasons for holding that
the King Trustees were not jointly and severally
liable with the other servitude owners and oil and
gas operators who contaminated Black River’s

property are supported by the law and the
evidence; and

(4) whether the trial court erred by holding that the
doctrine of judicial estoppel did not bar the King
Trustees from disavowing their mineral servitude
on the eve of trial, after the window for discovery
had closed?

II.

FACTS AND PROCEDURAL HISTORY

This mineral law case involves 189 acres of land located in Concordia

Parish, Louisiana, of which Black River is the current and undivided owner. It is

undisputed that in 1946, Billy D. King and his siblings, Jack A. King and Mary

King Carpenter, each owned an undivided one-third interest in the Horseshoe

Plantation, which consisted of 1406 acres in Concordia Parish. That year, the

siblings executed a mineral lease pursuant to which a producing well (BD King

well) was drilled in 1953.

By deed dated September 4, 1953, Jack A. King conveyed his

ownership interest in the land to his brother Billy D. King, while reserving a one-

third mineral servitude over the property. On August 19, 1957, Mary King

Carpenter executed a deed transferring her ownership interest in the Horseshoe

Plantation to Billy D. King, while likewise reserving a one-third mineral servitude

over the property. That same month, by deed dated August 21, 1957, Billy D.

King transferred ownership of 320 acres of the plantation to Stella Calhoun,

reserving a one-third mineral servitude in his favor over the 320-acre tract.

On April 20, 1988, Stella Calhoun sold approximately 189 acres of

the 320-acre tract to Concordia Fisheries, Ltd. The deed contained no reservation

of any interest in the underlying minerals, as at that time the three King siblings

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each held one-third mineral servitudes in the tract. In 1996, Billy D. King

transferred his one-third mineral servitude to the Billy D. King, M.D. Revocable

Trust (trust). On November 19, 2003, Concordia Fisheries, Ltd. sold the 189-acre

tract to Black River. Again, there was no reservation of minerals in that

transaction or assignments of any personal rights.

On February 22, 2012, Black River filed the present litigation against

various defendants who were alleged to be mineral servitude owners, operators,

and/or mineral lessees of its property, seeking restoration pursuant to Article 22,

among other claims.1 The King Trustees were sued solely in their capacities as the

alleged owners of the mineral servitude created by Billy D. King’s reservation of

his one-third mineral interest in the transfer to Stella Calhoun in 1957.

In response, the King Trustees initially filed a peremptory exception

of no right of action, contending that Black River’s claims were barred under the

subsequent purchaser rule. They argued that the right Black River sought to

enforce was a personal right belonging to the person who owned the land at the

time the damage occurred, citing Eagle Pipe and Supply, Inc. v. Amerada Hess

Corp., 10-2267, 10-2272, 10-2275, 10-2279, 10-2289 (La. 10/25/11), 79 So.3d

246.2 Because the transfer to Black River in 2003 did not contain an assignment of

1
This appeal only involves Black River’s claims against the King Trustees. Therefore,
we pretermit any discussion of the remaining defendants or the rights that Black River may have
against those defendants.
2
In this plurality opinion, the supreme court reaffirmed the subsequent purchaser rule,
recited as

a jurisprudential rule which holds that an owner of property has no right or
actual interest in recovering from a third party for damage which was inflicted on
the property before his purchase, in the absence of an assignment or subrogation
of the rights belonging to the owner of the property when the damage was
inflicted.

Id. at 256-57.

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any personal rights, the King Trustees claimed that Black River had no right to

bring the litigation against them. Alternatively, they argued that, regardless, no

rights were passed to Black River because the mineral servitude and correlative

obligations arising therefrom had prescribed by ten years nonuse in 2000, three

years prior to Black River’s purchase of the property.

Black River, however, contended that the mineral servitude created by

the 1957 deed created a real right, which carried with it corresponding real

obligations and, as such, was not governed by the subsequent purchaser rule. The

trial court agreed, stating that a mineral servitude

is a real right that passes with the transfer of land and
gives rise to rights and duties of the landowner and the
servitude owner. A mineral servitude is a real obligation
that attaches to the land and a real obligation passes to a
subsequent acquirer without need of a stipulation to that
effect.

After the trial court denied the exception, Black River filed its motion

for partial summary judgment, seeking to establish the mineral servitudes

burdening its property. The King Trustees, in turn, filed their peremptory

exception of prescription of nonuse, arguing that their mineral servitude was last

exercised, at the latest, in 1990, some thirteen years prior to Black River’s

acquisition of the property. Accordingly, they again asserted that the mineral

servitude, forming the sole basis for Black River’s claims against them, had lapsed,

along with the correlative obligation to restore the property ten years following the

last exercise of the servitude rights and three years before Black River acquired the

property.

In support of their position, the King Trustees relied upon the

undisputed expert report rendered on August 17, 2016, by Black River’s expert,

4

RBB Consulting, LLC. The report identified a total of four wells drilled on the

property and provided the status of each well. Three of the four wells were “dry

plugged,” the latest one in 1981. The only well that actually produced, the BD

King, “was spudded in 1953 and operated as a producing oil well until it was

converted into a saltwater disposal well in 1982.” It then operated as an injection

well from 1982 until it was plugged and abandoned in 1989. Another well was

drilled on January 23, 1990, but it was a dry hole that was immediately plugged

and abandoned on January 26, 1990.3

After hearing oral argument on both the motion and the exception and

taking the matter under consideration, the trial court granted the motion for partial

summary judgment “recognizing Black River as the current surface owner of the

property and that three mineral servitudes created in 1953 and 1957 burdened

Plaintiff’s property.” But it denied all the remaining issues Black River sought to

establish. The trial court also granted the King Trustees’ exception, holding that

the mineral servitude was extinguished by prescription of ten years nonuse, at the

latest, in January 2000. In so ruling, the trial court reasoned: “As there was no

real right in existence in 2003 when Black River acquired the property, no

correlative real obligation to restore the property was transferred to Black River.”

Black River now appeals the granting of the exception and the dismissal of its

claims against the King Trustees.

3
This well was drilled on property burdened by the servitudes but not part of Black
River’s 189-acre tract.

5

III.

STANDARD OF REVIEW

An appellate court reviews the factual findings of a trial court under

the manifest error-clearly wrong standard of review. Rosell v. ESCO, 549 So.2d

840 (La.1989). The trial court’s legal conclusions on questions of law, however,

are reviewed de novo. City of Bossier City v. Vernon, 12-78 (La. 10/16/12), 100

So.3d 301.

IV.

LAW AND DISCUSSION

“All that must be considered in the peremptory exception of

prescription is whether there is sufficient evidence to show that the alleged time

period has run under the requirements of the particular code articles involved.”

Montgomery v. Breaux, 297 So.2d 185, 187 (La.1974). The time period at issue

herein is set forth in La.R.S. 31:27, which provides, in pertinent part: “A mineral

servitude is extinguished by . . . prescription resulting from nonuse for ten years.”

“Prescription of nonuse of a mineral servitude commences from the date on which

it is created” and “is interrupted by good faith operations for the discovery and

production of minerals.” La.R.S. 31:28 and 31:29. “Prescription commences

anew from the last day on which actual drilling or mining operations are

conducted.” La.R.S. 31:30.

No one disputes that the evidence clearly and reasonably shows that

the mineral servitude owned by the trust has not been exercised since January

1990, and, therefore, was extinguished by prescription of nonuse in January 2000,

ten years after the last dry hole was drilled, plugged, and abandoned. Accordingly,

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we find no error in the trial court’s evaluation of the evidence and its conclusion as

to the accrual of prescription. We note, however, that although styled as a

peremptory exception of prescription of nonuse, the objection raised by the King

Trustees is really one of no right of action, which, as an appellate court, we may

notice on our own motion. La.Code Civ.P. art. 927.

“The function of the exception of no right of action is to determine

whether the plaintiff belongs to the class of persons to whom the law grants the

cause of action asserted in the suit.” Hood v. Cotter, 08-237, p. 17 (La. 12/2/08), 5

So.3d 819, 829. This is so because “[a]n action can only be brought by a person

having a real and actual interest, which he asserts.” Howard v. Adm’rs of Tulane

Educ. Fund, 07-2224, p. 8 (La. 7/1/08), 986 So.2d 47, 54.

In ruling on an exception of no right of action, a court first looks to

the pleadings, though evidence may also be considered, if properly introduced. Id.

Black River, in its petition and amending petition, seeks to enforce the alleged

mineral servitude owner’s duty to restore the surface of the land set forth in Article

22, which provides:

The owner of a mineral servitude is under no
obligation to exercise it. If he does, he is entitled to use
only so much of the land as is reasonably necessary to
conduct his operations. He is obligated, insofar as
practicable, to restore the surface to its original condition
at the earliest reasonable time.

“A real action is one brought to enforce rights in, to, or upon immovable property.”

La.Code Civ.P. art. 422. “An action to enforce an obligation is the property of the

obligee.” La.Code Civ.P. art. 426. Thus, the question central to the resolution of

this matter is whether Black River has the right to enforce this obligation against

the King Trustees.

7

Essential to the determination of this question is a proper

understanding of the nature of the real obligation at issue herein. Under our

modern civilian doctrine, “[a] real obligation is a duty correlative and incidental to

a real right.” La.Civ.Code art. 1763. “[A] real right can be understood as

ownership and its dismemberments.” Eagle Pipe, 79 So.3d at 258.

“Perfect ownership consists of the use, the enjoyment, and the

disposal of the thing—the usus, fructus, and abusus.” In re Morgan R.R. & S.S.

Co., 32 La. Ann. 371, 374 (1880). These rights of ownership—“[t]he rights of use,

enjoyment, and disposal”—may be dismembered by operation of law or intent of

the owner. Id. at 375. A mineral servitude is one such dismemberment of

ownership that confers a real right on the mineral servitude owner: “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.R.S.

31:21. As a correlative obligation governing the dismemberment of the usus and

fructus rights of ownership of the land, the owner of a mineral servitude “is

obligated, insofar as practicable, to restore the surface to its original condition at

the earliest reasonable time.” La.R.S. 31:22.4

Significantly, however, “a real obligation does not exist in the absence

of a real right.” Eagle Pipe, 79 So.3d at 261. “Prescription of nonuse is a mode of

extinction of a real right other than ownership as a result of failure to exercise the

right for a period of time.” La.Civ.Code art. 3448. Upon accrual of prescription,

4
We note that, although Black River’s petition seeks redress for the contamination of its
property due to historic oil and gas operations conducted thereon, the plain language of Article
22 strictly sets forth a duty “to restore the surface” only. This duty, by its explicit terms, is not
equivalent to the environmental contamination and remediation now regulated and governed by
the provisions of La.R.S. 30:29 (Act 312), enacted in response to the seminal case of Corbello v.
Iowa Prod., 02-826 (La. 2/25/03), 850 So.2d 686.

8

the real right is “no longer in existence[,]” and no real obligations correlative to

that right remain. Wise v. Watkins, 222 La. 493, 62 So.2d 653, 656 (1952).

By operation of law, the real right of the mineral servitude at issue

herein was extinguished by “prescription resulting from nonuse for ten years,” at

the latest, in January 2000. La.R.S. 31:27. At that time, the real right, along with

any correlative obligations arising therefrom, no longer existed.

Furthermore, when the servitude was extinguished in January 2000,

the dismembered portions of ownership, the mineral rights, reverted to the

landowner. Neumin Prod. Co. v. Tiger Bend, Ltd., 10-1307 (La.App. 3 Cir. 3/9/11),

58 So.3d 1088, writ denied, 11-717 (La. 5/20/11), 63 So.3d 984. At that time,

Concordia Fisheries, Ltd. became “the owner of the minerals on the property as the

owner of the surface of the property.” Id. at 1093. Pursuant to the rule of

confusion, as both the owner of the land and the minerals, Concordia Fisheries, Ltd.

could not be bound to render a performance to itself:

When the qualities of obligee and obligor are
united in the same person, the obligation is extinguished
by confusion. Indeed, an obligation is a legal relation
whereby an obligor is bound to render a performance to
an obligee. Since no one may be bound to render a
performance to himself, when obligee and obligor are the
same person the obligation no longer has a purpose and
therefore comes to an end. Thus, confusion is one of the
manners in which obligations are extinguished, and also a
legal obstacle that makes an obligation ineffective.

S. Litvinoff & R. Scalise, 5 La. Civil Law Treatise: Law of Obligations § 20.1 (2d

ed. 2016) (footnotes omitted). In this manner, the real obligation set forth in

Article 22 was extinguished by confusion in 2000 when the ownership of the

surface estate was reunited with the ownership of the minerals, thus uniting the

qualities of the obligee and the obligor in the same entity, Concordia Fisheries, Ltd.

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Consequently, by January 2000, all real rights and correlative

obligations arising from the mineral servitude were extinguished by law. It

logically follows, therefore, that because neither the real right nor the correlative

obligation existed when Black River acquired the property in 2003, Black River

never acquired the right to enforce the real obligation to restore the surface. 5

Accordingly, our review of the petitions and the evidence of record reveals that

Black River does not have a right of action to seek restoration against the King

Trustees.

V.

CONCLUSION

For the foregoing reasons, we render judgment sustaining the

peremptory exception of no right of action, properly noticed on our own motion,

and affirm the trial court’s dismissal of Black River’s claims against the King

Trustees.

Costs of this appeal are assessed to the Plaintiff/Appellant.

EXCEPTION OF NO RIGHT OF ACTION GRANTED;

DISMISSAL AFFIRMED.

5
In finding that Black River has no right of action, we pretermit discussion of Black
River’s remaining assignments of error.

10