New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1870-12-22
NEW ORLEANS THURSDAY DECEMBER 22 1870

the act itself is not sale, the sixth section
of the agreement certainly contains a sale
of the itgious rights of Escoubas & Low
ell
think not, as there can not be q sale
without price. There is no price stipu-
lated to be paid for the privileges granted
by section sixth Of the act and assumed by
the Sulphur Company.
1t can not be contended that the price
was $50, 900 in money, and half OF the eapi-
tai stock of the company TO be organized,
for the deed recites that this was the price
and consideration of the right to mine, and
not consideration for any litigiOus rights
represented to have been sold.
Escoubas & Lowell contract as follows:
For the sum Of twenty thousand dollars in
money and one-half of the capital stock Of
the company they lease to said company the
lands for ninety-nine years, the lease to
commence immediately; but they do not
obligate themselves to put the company in
possession of the lands until the fifth day of
October, 1875, because of law suit then
pending tthe very case of Escoubas ct al. vs.
the Petroleum Company; which prevents
them from giving the Sulphur Company i'm
mediate possession of the lands. And they
further say: You (the Sulphur Company
shall be entitled to the possession before the
fifth day of October, 1875, if you can obtain
it by legal proceedings. by compromise or
other means, and we authorize you for this
purpose to carry opnthis suit, which stands
in your way, at your cost and risk, to final
adjudication.
Nothing was paid for that transfer. The
stipulation is evidently made for the mutual
benefit Of both parties, for the sooner the
possession, was obtained the sooner divi-
dends on stock held by both might be ex-
Dpcfad Thp~o IA fhnrafnre M la of Efi-
giOus right.
might stop here, as it is clear That the
Petroleum Company has no cause of action.
But, for the sake of science, want to de-
fine the act which is the subject matter Of
this controversy.
1t is certainly not sole. Is it simply a
lease' or a lease and partnership at the
same time, l believe that it contains the
features of the emphyteosis and of the part
nership.
Marcade, irf volume 2, page :45, defines as
follows the emphytheosis: translate from
the Erench.)
The empheteosis or emphyteotie lease is
a contract by which l grant You, for an an
nual rent, which il called emphyteohe sa'son
the right to use and enjoy my immOvable
property as absolute owner. but only for a
determined period. There is this difference
with the simple usufructuary. that the en-
phyteot may change the substance Of the
thing, provided it be to improve it; but he
0)as to pay even for the extraordinary re-
pairs; his right is never extinguished by His
death, bat only at thv expiration of the
time agreed upon. generally ninety-nine
years.
The State, the eommunes and
public establishments have always con-
sented, and frequently consent temporary
cmrhyteoses. The authors and the .iuris-
prudence recognize to-day, with reason, the
validity of these emphyteosee on.the part of
Individuals
From which it il obvious that the requi-
sites of an emphyteosis are: The payment
of a rent: the right to use as owner; the inn
provement of the property leased; the obi
cation to pay for all expenses incurred by
the property; the duration of the lease fixed
at ninety-ninc years.
Are not all these essential requisites to be
found in the agreement entered into be-
tween Escoubas & Lowell and the Sulphur
Company. The payment of the rent is not
exactly the $4,000 in monet. which is a
mere bonus. but the annual dividends which
are naturally to flow from the digging Of
the sulphur; the right to Use as owner, for
all purposes concerning the digging, is
clearly given the Improvement Of the
property is to be found in the obligation
taken by the Sulphur Company to develop
all the resources Of the lands: the obligation
to pay the taxes and other expenses ia also
assumed by the sulphur Company: and,
lastly. the duration OF the lease is fixed at
ninety-nine years.
Is it sufficiently clear,
The objection urged by the plaintiffs,
that the act in question is not lease, but a
sale, because the $4,000 was paid at once,
in lump. instead of q monthly or annual
rent, which is one OF the essential features
Of Il lease, can not stand, because, as have
already stated, look upon the payment of
this sum as a mere 6on,As granted to the
lessons, the real rent being the amount of
dividends expected from the enterprise of
digging the mines of the lands. Our code
(article 26il expressly provides that the
rent may consist IN a portion OF the fruits
yielded by the property leased. Here, the
fruits are the income derived from the
mines, which the Sulphur Company share
with the lessons.
The objection to the length of time which
this lease has to run. is equally without any
foundation. The plaintiffs contend that,
according to the French commentators, "a
lease for "a longer period than nine years is
either sale of the property itself, or, at
least. of its usufruct. Even if this principle
be true, it has no application to our juris-
prudence, because our code does not limit
the duration of leases, which, on the con-
trary, is entirely left to the contracting par
ties.-C. c., 1854. See also COnnell VS.. Or
phan Asylum and DIR. Campbell, lS A., 5l3,
in which the Supreme Court of this State
held that fifty years lease was simply a
lease, and did not constitute the lessee an
usufructuary.
But the principle relied upon by the
plaintiffs is not true. The French authors
take great care in defining the obligations
and rights of leSsees and usutructuaries,
show fhaf fhayv al
getlcr different. AS to the presumption
that Il lease for more than nine years is, in
reality, a sale, Marcadc. beyond doubt,
shows (volNme 6, page 42Jl that it is only in
cases where the intention Of the parties
does not appear from the clauses of the con-
tract. For, when the parties have clearly
granted a lease. and retain the ownership,
as in the case before me, for any length of
time, it is a lease and nothing else.
The last important objection of the plain
tiffs is that the contract entered into be-
tween the land owners and the Sulphur
Company, conveys portion of the soil
itself, which is in opposition to the spirit Of
a lease. Marcade answers also that Objec-
ton volume 6, page 42.), and says that
mines may be leased, and that they are
subject only to certain rules adopted by the
government.
There is no doubt then, at least in my
mind that the act before me is lease. But
the act is twO-tOld it is Il lease and a part
nership.
It's partnership, because it is contract
into which the land owners put their lands.
for bonus Of S20,00O1 and one-half Of the
capital stock of the company, and the other
partners their money, and by which they
agree to form a corporation for the purpose
OF digging the lands and extracting the sui
phur, and sharing the profits. 1t seems to
be self-evident.-C. G., T62, and Seq.
Under our Jurisprudence now pronounce
the act before me a lease and contract of
particular ordinary partnership. But under
the Jurisprudence governing Pennsylvania,