Walker, J. Mort, Jr.

English

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Louisiana Law ReviewVolume 2 | Number 1November 1939MINERAL RIGHTS IN LOUISIANA, by HarrietSpiller Daggett. Louisiana State University Press,University, 1939. Pp. xxxv, 427. $5.00.J. Mort Walker Jr.This Book Review is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted forinclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationJ. Mort Walker Jr., MINERAL RIGHTS IN LOUISIANA, by Harriet Spiller Daggett. Louisiana State University Press, University, 1939. Pp.xxxv, 427. $5.00., 2 La. L. Rev. (1939)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol2/iss1/29ReviewsMINERAL RIGHTS IN LOUISIANA, by Harriet Spiller Daggett. Louisi-ana State University Press, University, 1939. Pp. xxxv, 427.$5.00.Mineral Rights in Louisiana will be gratefully received byboth the legal profession and the oil and gas industry of Lou-isiana. The task of developing a system of mineral law inLouisiana has fallen almost exclusively upon the courts whichhave laboriously shaped and woven together the fabric of a newand unique branch of the law without the aid of the Legislatureor of the French and Spanish. sources to whose authors theproblem was unknown. There are little more than half a dozenstatutes dealing with the private law relating to mineral rights.Since the first oil well was brought in at the Jennings field in1901, the Louisiana practitioner has been without an adequatereference book in the field of mineral law. The general referenceworks on the subject are of little value to him because of theirfailure to discuss the civilian principles around which the min-eral law has developed in Louisiana.Written by the pioneer in this field of law, Mineral Rights inLouisiana is a scholarly and practical discussion of the principlesof law applicable to the oil and gas industry: The author not onlystates the law as announced by the courts, but subjectsthe courts'decisions to a searching and critical analysis, sometimes disagree-ing with the solution reached by the court. She also analyzesmany problems of the industry which have not yet been judiciallydetermined and offers her suggestions for their solution from thestandpoint of principle.The book, in the words of. the author, "does not purport tobe a detailed and complete treatise." It does not cover such topicsas conservation, the leasing of public lands, or taxation. But theseomissions in no way detract from the usefulness of the book.The law of conservation and the leasing of public lands is almostentirely statutory, the few cases on these topics having addednothing of importance to the provisions of the statutes. Althoughsome problems peculiar to the oil and gas industry occasionallyarise in connection with taxation, they are not important enoughto command attention in a work of this' scope, the purpose of[203]LOUISIANA LAW REVIEWwhich "is to discuss in the main the mineral problems peculiarto Louisiana because of the Civil Code."The 288 pages of text are logically arranged into ten chapterswhich are divided into sections numbered from 1 to 86 consecu-tively throughout. There is a complete index, a table of cases, an,appendix of forms and an appendix of acts dealing with theprivate law of minerals.One of the most interesting and important chapters of thebook is Chapter I wherein the author discusses the nature of theright ih mineral contracts. She shows how the Louisiana SupremeCourt at an early date in the jurisprdudence adopted the non-ownership theory of oil and gas and adhered to this view despiteapparent inconsistent statements appearing in some of the earlycases where the court was in doubt as to whether the mineralcontract should be classed as a sale, a lease or a servitude, andhow the court finally recognized that this right to explore forminerals might be classed as a servitude or a lease dependingon the intention of the parties. It is the author's view that, al-though the categories of servitude and lease have been estab-lished, the right granted in either case is the same, namely, theright to explore, and since Act 205 of 1938 gives the lessee thesame remedies as the owner of a servitude in case his right isinvaded, "it should not matter a great deal whether these twocategories are confined to their labelled compartments or not,except for the matter of term."1 Dr. Daggett contends that, incases where there has been no production, the lease should expireat the end of ten years as in the case of the servitude. To supportthis view she relies on the land policy of the state which pro-hibits the tying up of property for long terms, the fact that a leasehas always been regarded as the granting of a lesser right thanthat given by sale, and the case of Arent v. Hunter,2 which heldthat a lease was a servitude and therefore had lapsed for nonuseof ten years on four of five noncontinguous nonproducing tractsdespite the fact that upon the fifth tract a producing well was inexistence. Although there is considerable merit to the author'sviews, nevertheless, as she points out, the case of Gulf RefiningCo. v. Glassell,3 decided several years after the Arent case, againheld that the right to explore might be sold or reserved, creatinga servitude, or might be leased, and that there were essential1. P. 15.2. 171 La. 1059, 133 So. 157 (1931).3. 186 La. 190, 171 So. 846 (1936).[Vol. IIBOOK REVIEWSdifferences between a mineral servitude and a mineral leasewhich the court likened unto a farm or predial lease, the term ofwhich may be fixed by the parties. While the view advanced byDr. Daggett is to be desired it is not likely to obtain as long asthe court adheres to the proposition that there is no differencebetween a farm lease and a mineral lease.Chapter II deserves special mention because the material itcovers is of vital importance to the practitioner as well as theinvestor. It deals with: the classification of the right of servitude-whether real or personal, divisible or indivisable, heritable ornonheritable; the manner of creating the servitude-whether bytitle or by prescription; the limited life of the servitude and thepossibility of extending it by contract; the loss of the servitudeby confusion and by prescription; the possibility of interruptingprescription by acknowledgment, by suit and by-user; the sus-pension of prescription by minority, by interdiction, and byprevention of user by an obstacle. Of particular interest is the sec-tion on suspension of prescription by prevention of user whereinthe author discusses the interesting problems which arise whenmineral rights are sold by owners in ina~vision. The author'sanalysis of the decisions on this difficult phase of the law ofminerals and her clear and concise statements of their implica-tions indicate a thorough knowledge of the fundamental legalprinciples involved and their relation to the complex problemsfacing those who must advise the participants in the develop-ment of the oil and gas industry.It would be going beyond the scope of this review to pointout all the interesting questions raised and discussed by Dr.Daggett. The remaining eight chapters discuss the mineral rightsof owners in indivision; the rights of their mineral vendees andlessees; the relative rights of the naked owner and the usufructu-ary; the property classification of the lease; the various conceptsof royalty and the rights of owners of royalty; the character offunds derived from the separate mineral interests of husbandand wife during the marriage-whether separate or community;the mortgaging and pledging of mineral rights; the liens andprivileges on oil and gas wells, their appurtenances and appli-ances in favor of laborers and furnishers of materials and sup-plies; and the remedies available to the owners of mineralinterests in case of invasions of their interests.Mineral Rights in Louisiana should meet the long felt needof the Louisiana lawyer in his search for the solution of the many1939]LOUISIANA LAW REVIEWcomplex problems which continually present themselves to theoil and gas industry. It is a worthy addition to Dr. Daggett'smany valuable contributions to the development of Louisianalaw.J. MORT WALKER, JR.*THE FORMATIVE ERA OF AMERICAN LAW, by Roscoe Pound. Little,Brown & Co., Boston, 1938. Pp. x, 188. $2.00.In October, 1936, Roscoe Pound visited Tulane University atNew Orleans to speak about Edward Livingston on the hundredthanniversary of his death. The present writer was there to speakabout Roscoe Pound. This volume contains what Pound theresaid. He said little about Livingston. In that respect the bookreminds one of the brochure that Elbert Hubbard once wroteabout the late Lydia E. Pinkham for the Lydia E. PinkhamMedicine Company of my native town. He discussed all thefamous women of the Victorian period in America, but all hesaid about Mrs. Pinkham was that among those women wasLydia E. Pinkham.But Livingston's fame is secure, and he needs no new biog-rapher. The author has given us a book far more valuable thana life of Livingston could have been. The influences that boreupon legislation, upon judicial decision and upon doctrinal writ-ing during the first half of the last century are discussed withlearning and acumen. The notes and citations in support of theviews expressed are full and convincing.One finishes the book with a renewed admiration for Mar-shall, Gibson, Shaw, Ruffin and other great jurists of the earlydays of the republic. What a libel upon them is the doctrine pro-fessed by our so-called "realists" or "economic determinists,"that all those great and good men were simply the willing toolsof the wealthy, without thought of right or justice or the gen-eral welfare! What a strange remedy the "realists" propose forthe alleged tyranny of one class,-the substitution for it of thetyranny of another! What a travesty is their attempt to disguisetheir medieval barbarities as liberal, progressive and forwardlooking! Happily, perhaps, the recent embrace of the Bolsheviksand Nazis in Europe has removed the last pretence that there* Associate Professor of Law, Loyola University (New Orleans).[Vol. II

MINERAL RIGHTS IN LOUISIANA, by Harriet Spiller Daggett. Louisiana
State University Press, University, 1939. Pp. xxxv, 427.
$5.00.

https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=1133&context=lalrev

MINERAL RIGHTS IN LOUISIANA, by Harriet Spiller Daggett. Louisiana State University Press, University, 1939. Pp. xxxv, 427. $5.00.

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