Prescription of non use is the most commonly litigated issue concerning mineral sevitudes.

The mineral code provides that prescription commences from the date when the servitude is created.

According to The Mineral Code, a use of a sevitude suffiecient to interupt prescription consists of good faith operations for the discovery and production of minerals. The code reqires proof of three elements to establish good faith.

1. Operations must be commenced with reasonable expectations of discovering and producing minerla in paying quanities at a particular point or depth.
2. A well must actually be drilled at the chosen site to the depth at which there were reasonable pectations of discovering and producing minerals. (Note: it is enough that a well was drilled, the well does not have to produce, a dry hole suffices if the other good faith requirements are met!)
3. Operations must be conducted in a manner that they constitute a single operation, although drilling or mining is not conducted at all times.


If these requirements are met, prescription is interupted from the date the well is spudded, and prescription begins to run anew from the last day on which actual operations are conducted. Pre-spudding activity, such as site prep, location building, surveys, erection of structures including the driling rig DO NOT interupt prescription. Note that this contrasts with activities considered "drilling operations" under many standard lease forms.

Unitization of part of the tract burdened by the servitude does not divide the servitude. However, unitization canresult in a division of the servitude in determining whether prescription has been interupted. The location of the well determines whether the servitude is divided for this purpose. If the unit well is located on the servitude, then prescription is interupted for the entire servitude.
However, the well is located on land not burdened by the servitude, then the servitude is divided into unit and non-unit lands for the purpose of determining whether prescription is interupted.

Also, according to article 59, an obstacle that prevents the servitude owner from using his servitude that the sevitude owner cannot remove or prevent suspends prescription for as long as the obstacle exists. Suspension is different from interuption. When interuption occurs the prescription period commenses anew for 10 years, when suspension occurs the usual result is the period of prescription that accrued prior ro the existance of the obstacle is subtracted from the 10 years to determine how long the servitude will last after the obstacle is removed. If the obstacle exists when the servitude is created, prescription will not run until the obstacle is removed. One example of a nobstacle could be a servitude that is burdened by governmental powers of police such as zoning or envionmental regulations; however most questions regarding what is an obstacles is more difficult.

Prescription does not apply to all servitudes. Most notably is when the Federal or State government aquires land from any person and the acct, judgement, etc. contains a reservation, prescription does not run for as long as the government owns the surface. Should the land already be burdened with a servitude when the government aquires the land, the prescriptive period runs as if the aquiring athority had not aquired the land! upon the prescritive period, the transferor of the land shal without further agreement become vested in the mineral right if they had reserved the minerals when the land was aquired by the government body.