One of the unique aspects of Louisiana property law is the regime governing servitudes. For Louisianans and out-of-staters alike, the nomenclature and rules can be quite confusing. This post is to provide a brief summary of the ins and outs of Louisiana servitudes, in their basic forms, in hopes of alleviating some of that confusion. I will go into more depth into mineral servitudes because that is subject matter of this site.

This post is meant to be educational, but certainly should not be taken as legal advice. I will occasionally reference applicable statutes in case one wants to do further research. "CC art" refers to an article of the Louisiana Civil Code, and "MC art" refers to an article of the Louisiana Mineral Code, also know as Louisiana Revised Statutes Title 31. 

A Servitude Defined

A servitude is defined as a charge or encumbrance on property allowing it be used by someone other than the property owner. While servitudes can technically exist on any thing that can be owned, moveable or immovable, I will restrict this discussion to servitudes on land because they are by far the most common and the easiest to understand.

The land that is burdened is called the "servient estate." The name "servitude" implies that the property is subservient to non-owners who may use it.  The servitude burdens the land no matter who owns it, as long as the servitude exists. The owner of land has no obligations dealing with the servitude, except for the obligation not to interfere with the rights of others to use the property. A servitude is analogous, but not identical, to an easement or right-of-way at common law. 

Types of Servitude

There are three categories of servitude in Louisiana: the predial servitude, the personal servitude, and the mineral servitude. Predial and personal servitudes are governed by articles 533-744 of the Louisiana Civil Code. Mineral servitudes are governed by the Louisiana Mineral Code.

"The predial servitude servitude is a charge on a servient estate for the benefit of a dominant estate. The two estates must belong to different owners." CC art. 646. The most common and easiest to understand form of predial servitude is a road or "right of way" across one property to allow access to another. For example, if I own a tract of land that is landlocked with no road access, I am entitled to a predial servitude allowing me to use one of the neighboring tracts of land to access my property. Because this servitude is not for my benefit, but for the benefit of the dominant estate, ownership of that servitude will transfer with ownership of my tract of land. It is impossible to own a predial servitude without owning the property that is the dominant estate.

"The personal servitude is a charge on a thing for the benefit of a person. There are three sorts of personal servitudes: usufruct, habitation, and rights of use." CC art. 534. This kind of servitude allows a person to use that property for the use contemplated by the instrument creating the servitude. These are probably the most common form of servitude in Louisiana, because utility lines are lain using a "right of use" personal servitudes. For example, power lines are constructed using property not owned by the power company. A charge, or right to use the land, is created on a strip of property (the servient estate) in favor of a person (the power company). Personal servitudes are tecnically extinguished when the person in whose favor they were created dies, but entities such as companies can live forever, and thus so can personal servitudes. 

Another very common form of personal servitude is worth mentioning: the usufruct, governed by CC arts 535-629. Usufructs are analogous to "life estates" at common law. A usufruct gives a person (the usufructuary) the right to use property and enjoy its fruits for a period of time ending no later than their natural life. This person can not sell or alienate the land, as it is still owned by another (called the naked owner). However, the usufructuary is entitled to "fruits," which are things that are produced by or derived from another thing without diminution of its substance. CC art. 551. Rent of the property is a fruit, as are crops. Things that diminish the substance of the property such as oil, coal, gravel and other minerals, are not fruits, but products, and do not belong to the usufructuary. I mention usufruct because a person whose spouse dies is given a usufruct on property owned by their late spouse automatically, which happens often. CC art 590. A usufructuary cannot create a mineral servitude. MC art 26. 

"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." MC art. 21. "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." MC art. 22. Whenever someone other than the owner of land "owns the mineral rights," they are the owners of a mineral servitude. Mineral servitudes can only be created by a contract, granted by the owner of land who has the right to explore for minerals. MC art 24. The contracts that create servitudes are usually either a Mineral Deed, where the owner of the land "sells his mineral rights" and thus creates a servitude in favor of another, or a Deed selling the land where the seller "reserves the minerals" thus creating a servitude in his favor. The contract that creates the mineral servitude governs it for as long as the servitude exists. For example, the contract could specify that no right to use the surface is included, and all subsequent owners of that specific servitude will be bound not to use the land. Whoever owns the land is bound not to interfere with the rights of mineral servitude owner, even if a previous landowner created the mineral servitude. 

 

Prescription and Servitudes

Louisiana has a legal regime called "prescription," which is governed by "prescriptive statutes" that are analogous to "statutes of limitation" in other states. These statutes specify periods of time ("prescriptive period") after which certain rights are lost or gained. All servitudes are subject to prescription.

"There are three kinds of prescription: acquisitive prescription, liberative prescription, and prescription of nonuse." CC art. 3445. 

"Liberative prescription is a mode of barring of actions as a result of inaction for a period of time." CC art 3447. This is your standard statute of limitation for filing suit. For example the "prescriptive period" for a basic personal injury lawsuit is one year. CC art 3492. An action to recover for overpayment or underpayment of royalties has a three year prescriptive period. CC art. 3494. 

"Acquisitive prescription is a mode of acquiring ownership or other real rights by possession for a period of time." CC Art 3446. This is analogous to "adverse possession" at common law. Basically, acquisitive prescription allows you to gain ownership of another's property by possessing it without their permission for a period of time. When it comes to land, there are two prescriptive periods after which an adverse possessor gains ownership: 10 years if they have good faith and just title (CC art 3475), 30 years without good faith or just title. "Mineral rights may not be established by acquisitive prescription." MC art 159. However, "when title to land is perfected by a possessor on the basis of acquisitive prescription, the title includes mineral rights to the extent that his possession included mineral rights for the required prescriptive period." MC art 160.

"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." CC art. 3448. This is the "prescription" that is so often discussed on this site, because all servitudes, including mineral servitudes, are subject to prescription of non-use. Thus, if you don't use your servitude for the purpose for which it was created for 10 consecutive years, the servitude ceases to exist by force of law. This is the 10 year period many people on this site refer to with minerals when they say "if there is no exploration for 10 years the minerals 'prescribe' to the owner of the land."

 

More Presciption and Other Rules Governing Mineral Servitudes - see two excellent blog posts by The Baron here: http://www.gohaynesvilleshale.com/profiles/blog/list?user=1az6vzvpl...

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Comment by judy hastedt on February 23, 2013 at 7:23pm

Andrew, Andrew,    Thank you so much.   I'll check into that predial servitude with 

Alvin.   He  probably was on the Board of Bayou Lake D'Arbonne Watershed.  Even

if  not, I bet he knows whether we sold them something and retained minerals.  Very important

to his family.   Our family interest might be 110 ac.  Judy

Comment by William C. Morrison on February 16, 2013 at 3:20pm

Interesting.  My family has a Usufructs agreement regarding the personal use of the area in front of the family farm (now owned by a family corporation).  The Usufrcts was created prior to the change in the Consitutional Statues and led to the creation of Usufrcts agreements in general.  The original heirs, four siblings roughly devided the front of the family farm into four plots.  The plot with the family house was given to that part of the family that grew up there.  The remaining three plots were divided up by lots.  Late one plot was swaped around.

My brother used my father's plot to build a log house on the land.

The Usufructs Agreement had a date upon which it terminated and all additions, improvements, etc. reverted to the farm.

My brother died, and a fight ensued with the local bank over the house.  My father offer to (a) buy the house for a small sum, or (b) insturcted the bank to move the house.  Several house movers were contacted and they said they could move the house.  The bank took issue until one of the directors, a family friendl, learned of the dealings.  He forced the bank to accept my fathers offer.  In the interm, we had a lawyer who took action to have the Usufructs included in the Louisiana Code.

Thus we maintain and rent the log house to benefit of my father's heirs.  The agreement as mentioned will expire in May of 2020 at which time the fruits, the rent money's, will revert to the farm along with title to the house.

Thus I am quite familiar with a Usufructs Servitude.

Comment by Andrew on February 13, 2013 at 9:26pm

Judy,

Louisiana Revised Statutes 38:2572 states:

"The provisions of this Part shall in no wise abridge the right of any individual from whom the flowage rights, rights of way and servitudes may have been acquired by any means however to lease said lands for the production of oil, gas and other minerals and the right of such lessee or his assignee to produce or cause to be produced oil, gas or other minerals therefrom."

The "servitude" you're hearing about possibly refers to predial servitudes that the state acquired from the owners of the lands now under the Lake. That is, rather than purchasing or seizing the land, the State merely purchased the right to flood the land but let it continue to be privately owned.

This means that, assuming your family merely granted the state a predial servitude which gave "flowage rights" (basically the right to permanently flood your land), the minerals still belong to the owner of the land as long as no mineral servitude has been created. If your family sold the land to the Bayou Lake D'Arbonne Watershed District and reserved the mineral rights, prescription would not run against you. My post about the State of Louisiana and mineral rights should explain why.

Comment by Andrew on February 13, 2013 at 9:11pm

Judy,

The blog post on you're looking for can be found here. I'll look into Lake D'Arbonne and see if anything stands out.

Comment by judy hastedt on February 13, 2013 at 2:51pm

Will ask one of the older heirs whose grandfather bought the land maybe in the forties or fifties.

Am pretty sure Lake D'Arbonne was established after that.  But will get back to you and I will

try to find your post on the State of Louisiana.  

Comment by Andrew on February 13, 2013 at 1:25am
Judy,

I can't offer an opinion on your specific situation, but I can address some issues which might be relevant. First, Union Parish has some notoriously large Servitudes spanning tens of thousands of acres. You may want to check to make sure the land wasn't already burdened by a servitude that may still persist when you acquired it.

Second, lake beds in general raise complicated questions involving mineral rights. Check out my post on the State of Louisiana for some of them. It would help me narrow down the relevant questions if you could describe how you came to acquire the minerals under the lake, and how/when the lake was formed if it occurred after you acquired them.
Comment by judy hastedt on February 12, 2013 at 10:39pm

O.K.   We supposedly own the mineral interest under part of a lake in Union Parish.  The word

servitude has always been used in connection with this interest.  Would you think that

since the lake was established many years ago, with no activity  since, we still have the

mineral interest?  I know you cannot completely answer this, but what should I be checking

on?    Judy

Comment by Skip Peel - Independent Landman on September 18, 2012 at 4:09pm

Already found it and read it, Andrew.  Good Job.

Comment by Andrew on September 18, 2012 at 4:01pm

Skip and anyone else who is interested, the second blog post: Ownership of Mineral Rights and the State of Louisiana, has been approved. You can find it here:http://www.gohaynesvilleshale.com/profiles/blogs/ownership-of-miner...

Comment by Skip Peel - Independent Landman on September 14, 2012 at 8:11pm

Andrew please post a comment in this thread when the next blog post is approved.  Those of us that would care to read further may click on "Follow" to receive emails alerting us to your next post.  Thanks for taking the time to review the statutes covering mineral servitudes.

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