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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