Replies to This Discussion

Permalink Reply by The_Baron on December 4, 2008 at 4:12

What???

I am confused.

If the servitude isn't created until Jan 1,1998...prescription is interupted when the well is spudded. prescription begins to run anew when the well is P&A, I will use your date of Sept 1, 1998.

Assuming no further interuptions, prescription occurs Sept 1, 2008, ten years from the P&A date.

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Permalink Reply by The_Baron on December 4, 2008 at 4:13

The unit order in this case is not important as no well capable of production existed when the order was created.

Permalink Reply by The_Baron on December 4, 2008 at 4:42

Are you trying to get our blood pumping on this cold day?

Although, these are some of the lines of thought that have made prescription one of the most litigated parts of the mineral code.

Permalink Reply by Grice on December 4, 2008 at 4:03

I just thought your fondness of quoting the laws seemed fitting for the request. But, since you seem reluctant...

"If the land, or part thereof, burdened by a mineral servitude is included in a conventional or compulsory unit on which there is a well located on other land within the unit capable of producing in paying quantities, as required by Article 34, and shut in at the time the unit is created, prescription is interrupted on and commences anew from the effective date of the order or act creating the unit."

The thing I hope readers gain from this, is the understanding that the order to create a unit will interrupt/renew the prescription of non-use. One potential scenario would be where a lease was created in 2008, but the unit was not created until 2010. The three years in between, would not count against the 10 years of non-use. I do not want to institute a rush to compromise one's self interest, but simply to provide an understanding of what may affect them over time.

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Permalink Reply by The_Baron on December 4, 2008 at 4:06

I read this as, prescription starts over on the date the unit is created, but only if there is a well that can produce already on the land.

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Permalink Reply by Grice on December 4, 2008 at 5:26

Thank you for, again, providing the links. While I was already aware of the site, your offering may serve a purpose for all the readers of this forum. Hopefully, if people elect to use the information provided on to that site, they will take the time to read through all of the laws, and not just pick the ones which haphazardly support a position.

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Permalink Reply by Bobi Carr ("parker") on December 4, 2008 at 5:47

Grice,

The code articles themselves, even when viewed in total, don't paint the whole picture.

You must also view them through case law as the interpretation of the articles as applied to specific circumstances.

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Permalink Reply by Grice on December 4, 2008 at 5:58

Parker, I agree with you. Reading of the codes can provide an understanding of the laws, but it is actual case documents that offer a more defined understanding. Due to the legalese of those documents, the reading of the codes serves its own offerings.

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Permalink Reply by The_Baron on December 4, 2008 at 3:52

KB,

Didn't that executive order have to do with tracts that had wells force majered for long periods due to Katrina?

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Permalink Reply by The_Baron on December 4, 2008 at 5:33

You lost me....

All I know is that the state mineral board has hadto take a new position on Force Majere due to Hurricane Katrina.

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Permalink Reply by Dion Warr, CPL on December 4, 2008 at 9:17

KB:

In my (non-lawyerly) experience, it is been largely held that the management and possession of such privately held rights and ownership as mineral rights is left to be regulated by the states. The only times that federal law and procedures enter into the equation is when dealing with federally owned lands, either sovereign or acquired.

As best as I can tell, the suspension of prescription by force majeure would have be debated on legal and constitutional premises outside of the Mineral Code, but it shouldn't be decided as a federal issue. Even on federal lands located within the state, any such privately-held servitudes existing would be imprescriptible.

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Permalink Reply by Dion Warr, CPL on December 5, 2008 at 3:17

KB:

But in this case, the government is not taking your mineral right; your right may lapse due to the inability to use them due to the actions of the government. Its action(s), if not substantively a taking, is probably (IMH"non-legal"O) not a federal concern.

I have misstated earlier, and this is due to my shortcomings as a non-lawyer. Has it ever been stated on any legal opinion rendered on the matter as to whether the executive orders described above would be considered an 'obstacle' as contemplated in 31:59 and 31:99? If so, the Mineral Code would then provide a remedy, and same would have to be applied first.

This has been used in cases in which a surface owner or adverse possessor has prevented the use of a mineral servitude by a non-surface owner, but I am not sure whether it would apply to the state in a case where is does not 'own' an interest. If it could, that may be the whole case right there, and it would be provided for in the mineral code.

There was an interesting case following this line of logic. Central Pines v. US contemplated the issue. Court ruled that Act 315 of 1940 could not overrule the rights of the fed to accrue mineral rights by presription ex post facto, certain mineral rights could not be made imprescriptible, and on others where a federally imposed mineral use moratorium ended more than ten years before the fed started to grant mineral leases, LA R. S. 31:59 and 31:99 could not apply as the obstacle imposed by the fed had been removed.

P.S. I would believe that if same was considered legal, the party affected by the running of prescription would have a certain period of time to either file suit or petition the appropriate court as to relief based upon this argument. If a prescribed period of time had passed prior to a filing of a petition (that ubiquitous 'known or should have known' reasonable period), then any such late claim would be dismissed on those grounds.

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