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Permalink Reply by Two Dogs, Pirate on December 2, 2011 at 6:01

Anything is possible in the State of Louisiana. On January 1, 1921 the state claimed ownership to all navigable bodies of water, and they also made into law that any land severed from the state from that point on, minerals would be reserved to the state forever.

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Permalink Reply by Skip Peel - Mineral Consultant on December 2, 2011 at 6:47

The rights-of-way for many parish roads were donated or otherwise acquired from private land owners with no reservation of minerals.  Mineral rights to servitudes created when the surface estate was severed from the mineral estate depend upon the wording in the conveyance document.  The is no "one rule or law that fits all".  A determination may only be made by reading the specific conveyance instrument recorded with the parish Clerk of Court.

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Permalink Reply by HBP on December 2, 2011 at 8:52

Skip is right when he suggests its a case by case basis on the wording. 

Some good reading on how the court has recently approached it would be the Webb, et al vs. Franks Investment, et al case filed in Caddo (many filings, so not a quick read).  It was an interesting outcome considering the Parish essentially came out years back and said they did NOT own interest in roads conveyed in the manner similar to the one in the case - however, you have to read the case to understand why that may not matter.  There is also a similar case on the same issue in Caddo around the same time, but I cannot think of its name.

It appears the Webb case is on appeal, so we may still get some more guidance on the issue.

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Permalink Reply by Andrew on February 11, 2013 at 9:26

UPDATE: The Second Circuit's opinion on the Webb case was recently published. This will probably go to the Louisiana Supreme Court, given the confusing and unsettled nature of the law in this area. In his concurrence, Judge Carraway all but begged the supreme court to take the case.

Webb, et al v. Franks Investment

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Permalink Reply by Skip Peel - Mineral Consultant on February 11, 2013 at 13:13

Thanks for posting the ruling, Andrew.  Whose opinion to you find most compelling?  Judge Caraway or Judge Moore?

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Permalink Reply by Skip Peel - Mineral Consultant on February 12, 2013 at 6:25

I also find intent of the parties to be a question that may only have an arbitrary answer.  In my mind many dedications were made with full focus on the benefits of a good road maintained by local or state government.  In that day surface use for many was the only use.  No thought given to mineral rights as there was, for all intents and purposes, no accurate directional drilling and certainly no horizontal wells.  If you couldn't set a rig on top of it, you couldn't produce it for all practical purposes.  We could get into the effect of road R-O-W as it impacts servitudes but I'll save that for another discussion or one of your scholarly blog posts.  As a fan of prescription, I come down on Judge Moore's side in this argument as a matter of general principle.  For many of my servitude owning clients, Judge Caraway's decision is more beneficial.  I hope the Supremes take up the question and look forward to their ruling and reasoning.

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Permalink Reply by P.G. on February 12, 2013 at 9:06

Who pays taxes on the land the right of way covers?

Seems that would indicate ownership..

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Permalink Reply by Skip Peel - Mineral Consultant on February 12, 2013 at 9:32

What's in question is a mineral servitude as opposed to the land.  As far as I know no taxes are levied on rights-of-way for public roads.

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Permalink Reply by Andrew on February 12, 2013 at 10:27

P.G..

That's an excellent point. Property taxes aren't usually very strong evidence of ownership because the Parish can (and often does) assess the property to the legally wrong person. However, it would be strong evidence of Caddo's intent if they didn't change the property tax rolls in the couple years after the dedications were made.

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Permalink Reply by Andrew on February 12, 2013 at 10:08

Purely for defining the act of "dedication," the intent of the parties should be the appropriate inquiry if the terms of the contract itself are ambiguous. In this case there were several facts that suggest to me that the parties did not contemplate a sale. No money was paid to the landowners, for example, and the use of the property by Caddo Parish was restricted to use as a Parish road. 

Much like litigation over ownership of lake and river bottoms, mineral rights are behind the dispute because otherwise no one would care about who owns the land under a public road. However, in this case the dedications are important not because they will determine who owns the minerals under the road, but because the road - if owned by the Parish - would have divided the 1,750 acre tract of land it bisected. Ask Skip alluded, this would have resulted in prescription running as to the minerals south of Flournoy-Lucas.

I agree with Skip that prescription of minerals is one of the "civilian" aspects of Louisiana law I am most in favor of. However, that doesn't affect my view of the case, because favorable outcomes often lead to bad law.

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Permalink Reply by Skip Peel - Mineral Consultant on February 12, 2013 at 10:49

The refusal of the State Supreme Court to accept writs and thereby leave the interpretation of law to appellate court rulings is a terrible way to make mineral law.  The 2nd. Circuit is exhibit A in that regard!

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Permalink Reply by Andrew on February 12, 2013 at 14:21

Agreed. The Supreme Court hasn't refused writs on the Webb case have they? The decision date was 10/29/12, so I don't know if the writs applications are even in yet.

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