New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1870-05-26
THE COURTS.
Supreme Court OF LOuisiana-The Grea,
Sulphur Mine OAse.

sulphur Mine Case.
By Associate Justice Howe-Escoubas ct
al VS.. Louisiana Petroleum and Coal Oil
Company-Appeal from the Fourth District
October, 1865, Hilaire Escoubas and Trux-
| ton Lowell entered into an agreement in
writing with J. w. Maliett, by which it was
| stipulated that the latter should have "the
entire, absolute and undivided con-
troll of all petroleum, mineral oil
or other similar products existing
beneath the surface of the land" owned by
the former in Calcasieu parish, and describ
ed in the first article of the agreement, and
''the right to bore, dig and mine for said
petroleum or similar product, TO extract the
same, to prepare it for market By refining
or otherwise, to transport, sell and dispose
of said petroleum in any way he might see
fit, and in general to have aud enjoy all the
mineral rights of the parties OF the first
part (Escoubas and LOVELY, in and with
reference to said land. The above
rights and privileges to continue for
the term of ten years from the date
Of the signature OF this contract"
By the second, third. fourth and fifth ar,i.
cles OF the agreement the party of the sec
ond part, Mallet, had the right to occupy
such land as might be necessary for such
buildings as would be required tor opera
tions, etc., and for the prosecution of the
proposed workings" the right to cut GER
tain timber and wood, the right OF pastur-
agefor animals to be employed in the work,
and the right of way for necessary roads
these privileges to continue for ten years.
By the sixth and seventh articles Mallet
agreed to pay the sum of twenty thousand
dollars in cash by November l, 1865 and in
the event of Oil or petroleum being found
in workable quantity" to pay to the parties
of the first part one half the gross product
of such oil or petroleum. The tenth article
is as follOws:e
"In the event that the said party of the
second part, hie agent or assigns, shall not,
before December 81, 1866, make experiment
tai borings on said land and obtain Oil or
petroleum in workable quantity, all rights
of the said party of the second part, his
agents or assigns, growing out OF this con-
tract, shall cease (withOut any claim on the
part of the said party of the second part, his
agents or assigns, to restoration of any pOr
ton of the above stipulated payment of
twenty thousand dollars), but in the event
that oil or petroleum shall be found upon
said land prior to said t1irty-frst day of
December, 1866, all said rights shall be con-
tinued for the full term of ten years"
On the first June, 1866. Mallet transferred
his rights under the agreement to the de-
PENDANTS in this action. No petroleum was
discovered in workable quantity" within
the time limited by the tenth article,
namely, the thirty first December. 1866. On
the fourth January. 1867, Escoubas and
Lowell made an agreement with the defend
ants recognizing this transfer and the pen
dency of certain claims to the land by a
third party, and covenanting in considera-
ton of the premises ito extend the forfeit.
ure of said contract and lease of the sixth
October, 1866. aforesaid, as set forth in the
tenth section of said contract from the
thirty-irst day Of December, 1866 up to and
he h,rtr dow Of 1a-
cember, 1861" and further agree mot
to declare a forfeiture of the lease
now transferred to, and being the prop
erty of said company (the defendants)"
during the unexpired term of said lease,
"provided. however, that said company
shall use every exertion to develop the re-
sources of said lands, and shall continue
constantly and without cessation to carry
on the work necessary to procure oil or pc
troleum upon said lands, and shall operate
upon said lands to the fullest possible ex
tent for the production of petroleum or coal
oil. 1t being understood, however, that
said work shall not be considered as having
ceased, should the company be prevented
temporarily from continuing the same by
inevitable accident, overpoWerlng force, or
the act Of God
The defendants proceeded with the work
and bored one well to the depth of twelve
hundred and thirty feet, but failed to dis
cover. petroleum in sworkable quantity"
At the depth, however, of about four hun
dred feet, thy penetrated bed OF crystal
lized sulphur OF remsrksiele thickness, and
this discovery appears td the cause of the
controversy now before
This action is instituted TO recover pos-
session of the lands in question, on the ale
CATION that the defendants were without
means, money or credit TO carry on the
works, and that the work had been discon-
tinued; that it was not being carried on to
the fullest extent possible for the prOduc
ton of oil. or petroleum, and not in such
manner as said company was bound to do to
avoid the forfeiture OF theslease.
The defendants answered by denying gen
eraly the allegations of the petition, except
as admitted in the answer. They admitted
the execution of the several agreements
above mentioned, averred that the tenth
section of the act of fifth of October, 1865,
was annulled and abrogated by the agree.
ment of January 4, 1867 (from which We
have quoted the clause to which the defend
ants here reter), and declared that they had
fully complied with the conditions OF this
clause. by continuing constantly and IN the
most judicious manner, to carry on the
necessary work to procure oil and petro-
leum. They also made reconvenuOnal
demand for damages.
The plaintiffs fled supplemental petition
alleging that after the commencement OF
this suit, eleventh of August, 1863. and up
to the time of the filing of the supplemental
petition the defendants had ceased all WORK,
and had abandoned the works and left the
premises, and this was met by general
denial and a further reconventlonal de-
mand for damages.
It appears by the record that the parties
agreed that the question of the right to the
s,dptur should be determined IN this con-
troversy, the defendants claiming the whole
of il. and the plaintiffs making similar eX.
elusive claim on their part. The Judge Gqot0
arrived at the conclusion that the non-com-
pliance with the condition imposed on the
defend ants, is to be considered as passive
violation of the contract, and that putting
il, no,c was an indispensable prerequisite
to maintain the action. Beyond this he was
of opinion that the defendants had not vio-
lated their agreements, and that they were
entitled on principles OF equity to one:hat
the net profits of the prospective sulphur
mining. The prayer OF plaintiffs for posses
sion, was therefore rejected as well as the
unconventional demand of the defendants,
and judgment rendered, decreelng
the defendants to be entitled to the
exclusive control of the digging. and
leased. including the sulphur lately dis.
covered, and the plaintiffs entitled to one
half the net profits arising from the digging
of said mines, etc. Both parties complain
Cf the Judgment. The plaintiffs have ap-
nealed. and the defendants, answering, pray
that it be amended in their favor, so as 10
give them ali the sulphur during the remain
der of the ten years, half of 1t thereafter IN
perpetuity, and their damages IN reconven-
ton. .: s A..
oval 6iscusS1OuS in this case.