176 La. 1024

#### UNITED GAS PUBLIC SERVICE CO. v. ARKANSAS-LOUISIANA PIPE LINE CO.

No. 32105.

Supreme Court of Louisiana.

Nov. 28, 1932.

On Rehearing Feb. 27, 1933.

Rehearing Refused March 27, 1933.

Hudson, Potts, Bernstein, & Sholars, of Monroe, and Wilkinson, Lewis & Wilkinson, of Shreveiiort, for relators.

J. C. Smith, W. H. Arnold, Jr., and Blanchard, Goldstein & Walker, all of Shreveport, for respondent.

ST. PAUL, Justice.

In 1888 Jesse B. Roberts and Sallie Mays Roberts, his wife, were the sole owners of a certain 80 acres of land in Caddo parish, in the proportions of five-sixths to the husband and one-sixth to the wife; the wife having acquired her interest by inheritance from her father, Samuel W. Mays, the original patentee from the government, and the husband having acquired his interest by purchase from the widow and other (two) heirs of said patentee.

I.

On December 16,1888, Jesse B. Roberts and his wife sold the land to one Elias Lake, and through mesne conveyances this title eventually passed to Albert Baldwin by deed from the heirs of J. P. Horner, dated June 17, 1897.

We are not now concerned with this title. It may, or may not, have been lost by prescription ; but we will meet *that*issue only when (if ever) Albert Baldwin, or his heirs, are before us.

II.

On December 16, 1901, Jesse B. Roberts, alone, without the concurrence of his wife, again sold the whole property to the Black Bayou Lumber Company.

The land has only small value for farming purposes, and has never been cultivated. Its value lies principally, if not wholly, in its natural resources. To-day its natural resources consist of natural gas; it lies in the middle of a proven gas field of approximately 2,000 acres. In 1901 its natural resources consisted of merchantable pine timber.

The lumber company cut off and carried away all the merchantable timber on the land, and built a tramway thereon which they, and those who afterwards acquired and operated their sawmill, used for some ten years or thereabout. Afterwards' the land was inspected three or four times a year to see that no one trespassed or committed any depredations thereon.

III.

On July 2, 1907, the Black Bayou Lumber Company sold the lands to Albert M. Gloyd, who was then married to Margaret Huckell.

Margaret Huckell Gloyd died intestate April 8, 1908, leaving a number of collateral heirs.

*67On May 10, 1909, Albert M. Gloyd, widower as aforesaid, sold tbe lands to Louisiana Land, etc., Company; and the title thus acquired eventually passed to E. E. Gloyd by deed from S. M. Gloyd, dated April 19, 1932.

This title, of course, covered only the *half-interest*of Albert M. Gloyd, as survivor in the community between himself and his deceased wife, Margaret Huckell Gloyd.

IV.

On August 29, 1932, P. E. Gloyd executed a mineral lease on the property to defendant; prior to which time he had acquired from certain heirs of Margaret Huckell Gloyd all their interest in the land, leaving only seven-fortieths interest therein outstanding in certain other heirs of hers.

And pursuant to this mineral lease defendant began drilling for gas on September 10, 1932.

V.

On September 26, 1932, plaintiff acquired the outstanding seven-fortieths interest of the remaining heirs of Margaret Huckell Gloyd.

On September 29, 1932, plaintiff, as co-owner with defendant, brought this action to enjoin said defendant, its có-owner, from proceeding further with said drilling operations. In final result the trial judge refused to issue tlie injunction, and the case is now before this court on certiorari.

VI.

Plaintiff relies for its right of action'on the doctrine of Gulf Refining Co. v. Carroll, 145 La. 299, 302, 82 So. 217, 279, that a co-owner may oppose any attempt by his co-owner, or by a lessee of his co-owner, to exploit the common, property for oil or gas (or other minerals), a doctrine “as old as the Itoman Law”; under which “any single one of the co-owners can prevent all innovations, however advantageous they might be, and however much desired by all the other co-owners; for each one is at liberty to maintain his right in the exact condition in which it is,” citing Carpentier and DuSaint, Repertoire de Droit Erancais, verbo Indivisión, No. Ill; and “it may be laid down as a principle that the co-owner of property held in indi-visión cannot lease it without the consent of his co-owners,” citing Euzier-Herman, Repertoire du Droit Erancais, verbo Bail, No. 192.

Defendant relies on the *opposite*doctrine of the common law, that “a tenant in common could not be guilty of committing waste or trespass against his co-tenants; * 3⁄8 * [and] in the absence of a statute changing the rule of the common law, one- tenant in common of land may go upon it, sink a well, and produce oil and gas therefrom without the consent of the co-tenants. *Their*remedy is partition. In most of the states, however» by statute, the action of one tenant in common in operating the joint property, especially where the mines had not been previously opened, is waste as to the co-tenants, when done without their consent, and *may he enjoined.*(Italics by this writer.) Mills and Willingham on the Law of Oil and Gas, § 177, p. 265.

Since, in this state also, “when parties own lands or leases or other property in common and cannot agree between themselves, the obvious course for them to follow is to demand a partition thereof between them (Allies Oil Co. v. Ayers, 152 La. 19, 92 So. 720)”, and *injunction*is a proper proceeding to prevent what in this state amounts to “waste as to co-tenants” (Cotten v. Christen, 110 La. 444, 34 So. 597), we see no great difference (or even real difference at all) between the two systems; and hence we prefer to follow our own precedents rather thaii the rule stated by a court of another jurisdiction, that “the peculiar circumstances of a cotenancy in land upon which oil is discovered warrant one co-tenant to proceed and utilize the oil, without the necessity of the other cotenants concurring [because the land might be drained of its oil by wells on adjoining property].” Burnham v. Hardy Oil Co. (Tex. Civ. App.) 147 S. W. 330, 335.

VII.

Defendant refers to the outstanding Baldwin title. We pretermit, as we have said, any present consideration of that title, for “it is well settled, that, if either the pleadings or the evidence show that the parties trace their titles .to the same source, neither will be permitted to attack the title of their common author, and' that a party cannot controvert the title of one under whom he claims.” Consolidated-P. Oil Corp’n v. Standard Oil Co., 158 La. 982, 105 So. 36, 37. Here both plaintiff and defendant claim through Albert M. Gloyd; the defendant by purchase (and mesne conveyances) from Gloyd, himself, the plaintiff by purchase from the heirs of his wife. But the only title which Gloyd had was through his purchase from the Black Bayou Lumber Company, during his marriage ; and that purchase vested ipso facto in her a half interest in the property, even though subject to his authority as head of the community; and *his*title was also her title. Rev. Civ. Code, art. 2402; Phillips v. Phillips, 160 La. 813, 107 So. 584; Dixon v. Dixon’s Executors, 4 La. 188, 23 Am. Dec. 478. Cf. Succession of Marsal, 118 La. 212, 42 So. 778.

VIII.

We are therefore of opinion that the injunction herein sought should issue and defendant be relegated to its action for a partition.

Of course, we have not concerned ourselves with plaintiff’s motives in seeking the injunc-*68fcion any more than with its urgent insistence upon speedy action. We have considered only the legal rights of the parties, and given the case that deliberate consideration to which we thought it was entitled.

Decree.

For the reasons assigned the rule herein issued is made peremptory; and it is now ordered that an injunction issue herein as prayed for, upon bond to be fixed by the district judge; defendant to pay all costs.

O’NIELL, C. J.,

dissents on the ground that this case is not one in which the plaintiff is admitted to be a part owner of the property, but is one in which the district judge found this claim so doubtful that the judge, in his discretion, refused to grant a preliminary injunction; the land being in the midst of a proven gas field, and being drained of its gas.

On Rehearing.

ROGERS, Justice.

This case is one purely and simply for injunctive relief, and the question presented ■to this court for decision is whether the court below in refusing the relief sought abused the discretion vested in it by law.

The facts established on the trial of the application for the preliminary injunction, as shown by the return of the trial judge based on the note of evidence and the exhibits, are as follows, viz.:

The defendant, Arkansas-Louisiana Pipe Line Company, acquired an oil and gas lease from one F. E. Gloyd, on August 29, 1932. This lease covered 80 acres of land in Caddo parish, and was recorded in the parish records on September 23, 1932. The lessee began drilling operations on September 16,1932, and on September 29, 1932, when the temporary restraining order issued, had drilled 211 feet and set and cemented casing. On September 26,1932, ten days after the drilling operations had begun, relator, United Gas Public Service Company, obtained an act of conveyance from one Mamie Bird and others of an undivided seven-fortieths interest in the 80 acres. This deed was recorded in the parish records on September 29, 1932, and on the same day the present suit was filed.

The land in question is cut-over land, never in cultivation and never inclosed, situated within a proven gas field of not less than 2,000 acres, upon which the relator owns gas leases and upon which, under its leases, it has drilled seven producing wells. From these wells, relator, which is engaged *solely*in producing and selling natural gas, is daily tailing gas, having taken 130,000,000 cubic feet therefrom during the month of August, 1932. The lands on which relator owns leases and operates the adjacent gas wells entirely surrounds the 80-aere tract involved in this controversy. Relator’s wells are daily draining the 80-acre tract, and if continued and the tract is not protected from such drainage, will entirely drain all the gas from under it. The tract has little, if any, practical value other than for natural gas or other minerals.

The defendant’s lessor and immediate authors in title alone have, for more than twenty years, manifested acts of ownership or possession, having paid the taxes for more than twenty years and executed and recorded a mineral lease and kept a man employed to go over the land three or four times a year to prevent destruction of the little second growth timber left on it. The authors in title of relator have apparently never known of the land, nor until recently, when selling to relator, have ever made any claim of any interest therein. They are some of the collateral relations of the wife of one A. M. Gloyd, who obtained a deed to the property in 1907, and in 1909 executed a deed thereof to the Louisiana Land, Lumber & Coal Company. The wife of A. M. Gloyd died in 1908. No claim to any interest in the property is shown to have ever been asserted by her succession representatives.

The respective chains of title of the plaintiff and the defendant are set forth in our original opinion. *So*far as the record title to the property is concerned, it appears to be in Albert Baldwin or his heirs. Whether or not that title has been lost by prescription we are not presently concerned. And relator must stand on the strength of his own right or title rather than on the weakness of the right or title of the defendant.

Relator contends that under paragraphs 3 and 8 of article 298 of the Code of Practice it was the mandatory duty of the trial judge to issue the preliminary injunction herein. But the cited article and the other articles of the Code of Practice relating to injunctions have been modified by Act No. 29 of 1924. Under the statute the writ of injunction is not a writ of right, the legal discretion of granting or withholding the writ being reposed in the court of the first instance after hearing the parties. See American National Bank v. Bauman, 173 La. 336, 137 So. 54.

“The object had in view, in enacting the act of 1924, was to rid the state of the abuse to which the ex parte issuance of the writ of injunction had been subjected for many years, by arranging the procedure for its issuance so that the judge would have to act no longer blindly on the face of the application for the writ, but would be placed in position to act with the crucial facts before him, obtained contradictorily with the party sought to be enjoined, after a prompt hearing, and with the right in the exercise of a sound discretion, to grant a temporary *69restraining order pending the hearing.” Id., page 341 of 173 La., 137 So. 54, 55.

Relator further contends that as a co-owner to the extent of an unincumbered undivided seven-fortieths interest in the 80-acre tract of land involved herein it is entitled to prevent defendant from drilling on the property for oil and gas without its consent and against its wishes. In support of its contention, relator relies on the cases of Cotten v. Christen, 110 La. 444, 34 So. 597, and Gulf Refining Co. v. Carroll, 145 La. 299, 82 So. 277. Neither of these cases, in our opinion, is appropriate to the instant case.

The case of Cotten v. Christen involved the cutting of timber by a co-owner. There the court held that the defendant co-owner could not cut the timber on the land owned in common, and that such cutting, if permitted, would constitute irreparable injury. The decision is predicated on the generally accepted fact that growing trees, forests, etc., have other than a commercial «value. Their cutting, if perrpitted, would constitute a destruction rather than an enjoyment of the property by the owners in common.

In the case of Gulf Refining Co. v. Carroll, the court held that a co-owner was without right to exploit the common property for oil or gas and, consequently, was not authorized to convey that right to another. It does not appear from the opinion an the case that the land involved was proven oil or gas land nor that it was being drained and destroyed by adjacent wells.

In both of the cited cases, the titles of the landowners were not in contest. Such is not the case in the instant proceeding. Defendant’s title and possession are admitted by relator, but relator’s title is not admitted by defendant.

The issue presented for our consideration is not one involving a trial of the title to the land in dispute. The title of the property is- involved only so far as it is necessary for relator to show that it has a right in the property which it is necessary to protect by injunction and also for the purpose of showing that defendant holds under a lessor claiming ownership of the property, and therefore is not a mere trespasser.

If it be conceded that the title of relator was proved or admitted, the question then arises whether the damage occasioned relator by the court’s refusal to grant the injunction would be irreparable. We do not think it would be. On the contrary, if the injunction were granted, it might cause irreparable injury to the defendant. In that event a tract of land that has no value except for the production of oil and gas might be destroyed and denuded of that which creates its value and its owners left without any remedy either to recover therefor or to prevent the loss.

The gas under the property in dispute, if there be any gas there, is being extracted daily by relator through the wells which it is operating on the adjacent property.

Owing to the fugitive character of gas, defendant would not be able to show how much gas was drained from the land into relator’s wells, if the injunction sought 'herein were granted. It might well be that there is no gas under the property, and relator would not be damaged at all by defendant’s drilling operations. The only way in which defendant can demonstrate that there is any gas under the property is by drilling for it and bringing it to the surface.

On the other hand, if the injunction is not granted, all damages occasioned relator by the drilling of gas wells by defendant is exactly compensable in money. It would be a simple matter to measure toe gas extracted from the land through the well or wells drilled by defendant, and to require an’ accounting therefor. Cf. Natalie Oil Co. v. L. R. & N. Co., 137 La. 706, 69 So. 146.

If relator be, as it claims to be, a co-owner with defendant’s lessor of the 80-acre tract of land, the preservation of its value by the drilling operations of defendant, representing a co-owner, cannot by any stretch of the imagination be said to be injurious to relator’s rights as such co-owner. And relator’s interest in the land is not admitted but is denied.

The apparent object of relator’s suit is to , destroy, and not to preserve, the property in dispute. By refusing to grant the injunction sought, toe court below has rendered the accomplishment of that object impossible. There is nothing in the record that would justify us in reversing its decision.

After the trial of the rule for the preliminary injunction, relator filed pleas of estoppel and prescription and a supplemental and amended petition. The pleas were referred to the merits and the petition was ordered filed. The issues which they present were not considered by the court below and are not before us now. They will be properly disposed of when the case is heard on its merits.

For the reasons' assigned, our former decree is recalled, and it is now ordered that the rule nisi herein issued be discharged and relator’s application for writs of certiorari and mandamus be denied at its cost. Relator’s right to apply for a rehearing is reserved.

ST. PAUL, J., absent on account of illness, takes no part.