New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1870-12-22
THE COURTS.
Fourth District Court-The Great Sua.
phur Mine Case-OplDiOn Of Judge
TVheaYd.

1
| Theard.
Louisiana Petroleum and Coal Oil Com
pany va. Calcasieu Sulphur and Mining
Company eof Louisiana.-1n this ease, the
following opinion was delivered yesterday:
| In the case of EscOubas ct al. against the
Petroleum Company, in which the plaintiffs
were seeking to recover the possession of
| their lands situated in the parish of Calca-
sieu, on the ground that the Petroleum
Company had forfeited the lease which they
held from the plaintiffs, decided that the
! lease was not forfeited, and decreed fur
! ther that the rich bed of sulphur, the dis
covery Of which was the real cause of the
| controversy, was to be equally divided be-
| tween the land owners and the Petroleum
| Company.
| The parties appealed from my judgment
| to the Supreme Court, who, having arrived
at different conclusion, and believing the
| lease to be forfeited, reversed my decision,
| and ordered that the land owners be put in
possession Of their valuable lands.
While the appeal was pending, EscOubas
| & Lowell. the land owners, entered into an
| agreement with A. .Bonneval & Co., by
| which they leased to the said A. BOnneval
| & Co. the lands in dispute for period Of
| ninety-nine years, on certain conditions.
| fully specified in said agreement.
| The Petroleum Company, believing that
agreement to contain a sale of the rights in
| litigation in the suit pending on appeal, i'm
| mediately applied to the Supreme Court for
| an order on Escoubas & Lowell to produce
| the original or a certified copy of the agree
ment, so that they might have an oppor-
| tunity to exercise their rights under article
1922 of the Civil Code, namely, to take the
place of the purchasers of the litigiOus
rights. But the Supreme Court, on an ex-
| ception as to the jurisdiction, filed by the
counsel of Escoubas & Lowell, very properly
declined to entertain original jurisdiction as
| to new state Of facts for the first time
| presented in that court.
Thereupon the present suit WAS instituted
before this court, for the purpose of testing
| the right of the Petroleum Company to
stand in the place Of the Calcasieu Sulphur
and Mining Company Of Louisiana, to
whom A. Bonneval & Co. have transferred
all their rights.
The demand is met by two exceptions,
and by an answer pleading the general
| issue.
| The first exception reads as follows
Res jtdicata: The rights of Escoubas &
Lowell, whose leesees these appearers (thc
| Sulphur Company arc, were finally adjudi-
Gated upon by the decree of the Supreme
! Court OF Louisiana, rendered on the twenty
! third of May, 1870. in the suit of Escoubas ct
al. VS.. Louisiana Petroleum and Coal Oil
| Company"
L
| not.
| The parties are not the same. The issues
| of the two suits are also different. In the
| case Of EScoubas ct al. vs.. Petroleum Com
pany, the Supreme Court decided on the
rights of Escoubas l. Lowell on the contract
| originally made with Mallet and subsequent
| IL tranferred to the Petroleum Company.
| In the present suit the Petroleum Company
| are endeayOring to enforce q transfer to
| them of the rights of Escoubas & Lowell,
| now adjudged in their favor, and which. it
| is alleged. they sold to A. Bonncval & Co.,
| pending the litigation. This transaction
| occurred after Judgment in this court and
| pending the appeal The appeal from that
! Judgment carried up the issues tried in the
| district court. The Supreme Court could
not decide any other issue without assum-
| ing original jurisdiction, which they properly
| declined to do. 1t is then clearly obvious
that the question presented in this suit is
not res .g,sdiccta.
The next exception reads as follows
mo liigious right was ever acquired by
| these appearers (the Sulphur Company: but
| even ifit were so the plaintiffs do not allege
| that any tender Of the price of the pretended
| purchase of IL litigiOus right was ever made
| by them to the defendants and the plaintiffs,
| after having resisted the claim of Escoubas
| and al. against them. can not be allowed to
! article 2622 Of the Civil Code, even if there
had been purchase of litigious right, as
| is pretended by the plaintiffs"
| This exception Is also untenabIc. Al
| thought readily concede that tender is in
| dispensable to recovery in an action of this
| kind, and that the tender should be made,
| if practicable, before the institution of the
| suit, still the tender becomes unnecessary
| where the defendant denies any sale, as in
| Il ~,
| vain formality of rendering price. The
| Sulphur Company having always denied
| there was any sale, and consequently any
price, the Petroleum Company could not
| make tender. Besides, the peculiar cir
| cumstances of this case are such that do
| not see how the Petroleum Company could
| make tender until the amount paid by A.
Bonneval & Co., to Escoubas ct al, could
| be ascertained and in reality paid. / an
| satisfied that the tender has been made at
the proper time; that is to say, as soon as
possible, and the exception must necessarily
fail.
1t remains now to be seen, if, on the
| merits, the demand Of the Petroleum Com
pany can stand an examination.
The Petroleum Company contend that the
contract entered into between 'Escoubas l.
Lowell on the one part, and the Calcasieu
sulphur and Mining Company, on the other
part. contains not only sale of the rights
Of Escoubas & Lowell, which were in Iiti-
cation in the original suit between them
and the Petroleum Company, but that the
act itself is q sale of a portion of the soil,
or at least of the usufruct of the lands in
dispute.
The task of giving correct name to the
agreement entered into between the land
owners and the Sulphur Company is not
free from difficulty. The contracting par
ties have named it a lease. and the plaintiffs
in this suit call it a sale. The limits of this
opinion, and the short time which can de-
vote to it, will not permit me to go through
an examination of all the points urged by
the plaintiffs tending to show that it is a
sale; but l will endeayor to ascertain from
the features OF the act itself it's true
character.
And first, a wide distinction must be OBJ
served in this controversy, between the
ninety-nine years lease of the third of March,
1870, and the ten years lease of the fifth of
October, 1865. The lease of the third of
March, 1870, which is the basis of the char
ter Of the Calcasieu Sulphur and Mining
Company, has not been in litigation. In no
event, and under no circumstances, can the
plaintiffs ask to take the place of the de-
PENDANTS, in that contract.
If any litigious right has been sold pend
ing the. previous litigation. to which plain
titfs have any claim it must be the right to
the possession of the lands leased, until the
fifth Of October, 1S75-the termination of
the ten years lease. This is all that plain
tiffs can possibly claim in this suit.
Upon an examination of the act of third
of March, 1870, am satisfied that it is not
an act of sale. EscOubas & Lowell still re-
main the owners of the lands. 1t does not
appear that they have sold anything; but
have entered into an agreement by which
they give to the Sulphur Company the
right TO dig and bore for sulphur and other
minerals, Tor period of ninety nine years
This permission, right or license to mine, is
given for the consideration of twenty thou