One RIPARIAN us, was a warning to all persons not to put | 5. NAVIGABLE WATERS (8_43*) [4] The sudden stop and jolt, in answer to an emergency signal, because of the toggle chain, which hung dangerously near on the side of the car, is not one of the acts for which defendant can be held liable. For, as to this logging concern, one riding on its cars, as we understand the situation, should always have been ready, as far as possible, to protect himself from a fall. The judgment is therefore affirmed. (129 La. 339) No. 18,413. YOUNG v. TOWN OF MORGAN CITY. (Supreme Court of Louisiana. June 26, 1911. Rehearing Denied Oct. 16, 1911.) (Syllabus by the Court.) 1. LIBEL AND SLANDER (8§ 140*)-SLANDER OF TITLE-JACTITATION SUIT-OBJECT OF SUIT. "The object of the action of slander of title, or the jactitation suit, was intended to protect possession; to give it the same advantages when disturbed by slander as by actual intrusion; to force the defamer to bring suit; and to throw the burden on him of proving what he asserted." Livingston v. Heerman, 9 Mart. (O. S.) 714; Proctor v. Richardson, 11 La. 188; Packwood v. Dorsey, 4 La. Ann. 90; Dalton v. Wickliffe, 35 La. Ann. 355; Poland v. Dreyfous, 48 La. Ann. 84, 18 South. 906; Patterson v. Landru, 112 La. 1074, 36 South. 857. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 397-401; Dec. Dig. § 140.*] 2. LIBEL AND SLANDER (§ 140*)-SLANDER OF TITLE-JACTITATION SUIT-TRIAL OF ISSUE OF TITLE. "It does not try the issue of title, unless the defendant in his answer_chooses to tender that issue." Livingston v. Heerman, 9 Mart. (0. S.) 715; McConnell v. Ory, 46 La. Ann. 567, 15 South. 424. "The corporations of cities, towns, and other places may construct on the public places, in the beds of rivers, and on their banks all buildings and other works which may be necessary for public utility, for the mooring of vessels, and the discharge of their cargoes, within the extent of their respective limits." Revised Civil Code, art. 863; Revised Statutes, § 318. [Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. §§ 256-265; Dec. Dig. § 43.*] (Additional Syllabus by Editorial Staff.) 6. PLEADING (8 171*)-REPLICATION. The court properly refused to permit a repbe filed; replications being unknown in the lication or amended petition after the answer to courts of Louisiana. [Ed. Note. For other cases, see Pleading, Dec. Dig. § 171.*] Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Charles A. O'Niel, Judge. Action by Mrs. M. M. Young against the Town of Morgan City. From a judgment for plaintiff, defendant appeals. Modified. Borah & Himel and Charles L. Wise, for appellant. Foster, Milling, Brian & Saal, for appellee. SOMMERVILLE, J. This is an action for slander of title, otherwise termed a jactitation suit. Plaintiff claims to possess, as owner, sec tion 11, township 16 S., range 12 E., parish of St. Mary, and she alleges that defendant has within the year past disturbed her in that possession, and has slandered her title by asserting title in itself to a small portion of said section. Defendant answered by general denial, and specially denied possession by plaintiff to the fraction or portion of section 11 referred to. [6] It also answered in the alternative that it is the owner in possession of the portion of land in controversy. Plaintiff filed a replication to defendant's answer, alleging [Ed. Note.-For other cases, see Libel and title anew in herself, and asking that the Slander, Dec. Dig. § 140.*] 3. LIBEL AND SLANDER (§ 140*)-SLander of [Ed. Note.-For other cases, see Libel and Slander, Dec. Dig. § 140.*] 4. LIBEL AND SLANDER (§ 140*)-SLANDER OF TITLE-JACTITATION SUIT-JUDGMENT. Defendant in a jactitation suit can be condemned by judgment of court to file suit against plaintiff, setting up his title to the property in controversy, but not within a limited time, under the penalty of being thereafter prohibited from filing such suit. Proctor v. Richardson, 11 La. 188; Packwood v. Dorsey, 4 La. Ann. 94. [Ed. Note.-For other cases, see Libel and Slander, Dec. Dig. § 140.*] suit be decreed to have been converted into a petitory action; but, on objection by defendant, the court refused to permit the replication, or amended petition, to be filed. The ruling of the court, which was excepted to by plaintiff, was correct. Replications are unknown in our state courts. The alternative allegation in defendant's quently abandoned by defendant, and all answer, setting up title in itself, was subsetestimony and evidence on the question of title of defendant was objected to and ruled out. Defendant says in its brief: "This alternative defense was abandoned, however, and the defendant made no effort to establish title, but, on the contrary, refused to go into the question of its ownership; therefore that question is not before the court." [4] There was judgment in favor of plaintiff and against defendant, recognizing her to be in possession; defendant was enjoined from trespassing upon the property; and it was decreed that defendant must institute an action of revendication, or a petitory action, against plaintiff within 30 days after this judgment may become final, for the land which defendant might claim; and in default of suit being filed within 30 days defendant was prohibited, enjoined, and debarred from asserting title to the land. "The power which is assumed in the decree appealed from of fixing the term of one month within which defendant is compelled to bring his suit, under the penalty of losing his right of action, is in direct conflict with the law of prescription." Packwood v. Dorsey, 4 La. Ann. 94; Proctor v. Richardson, 11 La. 188. Defendant appeals, and plaintiff answers the appeal, asking that the judgment appealed from be amended by decreeing her to be the owner of the property, or, if the evidence be insufficient to declare upon the title, to affirm the judgment as to possession, and remand the case for further evidence on title, and to further amend the judgment by awarding her damages in the sum of $750. We shall affirm the judgment. [1] The object of the action of slander of title, or the jactitation suit, says Judge Porter -"was intended to protect possession; to give it the same advantages when disturbed by slander, as by actual intrusion; to force the defamer to bring suit; and to throw the burden on him of proving what he asserted." Livingston v. Heerman, 9 Mart. (O. S.) 714. "The action admits of three responses: First, a denial of plaintiff's possession; second, a denial of the slander; third, an admission of the slander. In the last case, if he simply admits the slander, without setting up specific title in himself, the appropriate judgment is one ordering him to bring suit and establish his pretensions. Proctor v. Richardson, 11 La. 188; Packwood v. Dorsey, 4 La. Ann. 90." Dalton v. Wickliffe, 35 La. Ann. 355. [2] "The action is derived from the Spanish law. It does not try the issue of title, unless the defendant in his answer chooses to tender that issue." Livingston v. Heerman, 9 Mart. (O. S.) 715. "This action of jactitation does not ordinarily try titles to property. Its object is to quiet possession. It demands of defendant a disclaimer, or an avowal of the slander. If disclaimed, the purpose of the law is attained, and the suit ends. If the slander is admitted, then the defendant is ordered to bring suit to maintain his asserted title, and with that decree the jactitation suit terminates. If, however, the defendant sets up a better title in himself, that issue changes the character of the action. The whole object of the suit being to compel a disclaimer, or that defendant shall sue to establish the ownership he asserts, if defendant, in his defense, avers title, the court proceeds to determine that issue. It would be idle to order the defendant to institute another suit to establish title, when by his answer he tenders that issue.' McConnell v. Ory, 46 La. Ann. 567, 15 South. 425. "The suit for slander of title is brought by a party in possession and seeks to maintain it. The title and possession are averred, and the "This is in reality a suit in slander of title, the basis of which must be possession by plaintiff." Under these authorities, the plaintiff in order to have a standing in court, had to show that she was in possession of the property, and that she had been disturbed in that possession by defendant previous to the institution of the suit. The evidence in the record sustains plaintiff's allegations. She is in actual possession of the property, exercising the rights of ownership, and defendant has disturbed her peaceful and quiet enjoyment of her property. Defendant contends that the particular triangle of ground in controversy has been segregated from the balance of plaintiff's plantation and home by the sale by her of an intervening strip of property to a third party, and that her occupation of the larger portion of the plantation was not the occupation of the smaller, segregated part. If the parts had been slightly separated in the manner indicated, we think they were connected, we would hold that plaintiff actually possessed both pieces. She leased portions of the smaller piece to two or more tenants, and these tenants, by the terms of their leases, were filling up the low marsh places around their mills. When defendant offered evidence to prove the sale of the strip in question, objection was made thereto on the ground of irrelevancy, as the question of title was not being tried, and that objection was properly sustained. "To be able to acquire possession of property, two distinct things are requisite: First, the intention of possessing as owner; second, the corporeal possession of the thing." Civil Code, art. 3436. "It is not necessary, however, that a person wishing to take possession of an estate should pass over every part of it; it is sufficient if he enters on and occupies a part of the land, provided it be with the intention of possessing all that is included within the boundaries." Civil Code, art. 3437. "One may acquire possession of a thing, not only by for him. But in this case it is necessary that | diligence, the search for oil and minerals in paythe person receiving the possession should have ing quantities, and where thereafter even such had intention of receiving for the other." il Code, art. 3438. Civ-pretense is discontinued, the owner of the land [5] On the question of the right of defendant to the use of the banks of the stream upon which this property is situated, the law is quite clear. Civil Code, art. 863; Revised Statutes, § 318; Charter of Brashear, now Morgan City (Act No. 99 [1871]) § 15; Town of Morgan City v. Dalton, 112 La. 22, 36 South. 208. The Town of Morgan City has the right to enter upon riparian property, within its limits, for the purpose of building wharves, etc., in aid of commerce; and, in issuing and making perpetual the injunction herein, the trial judge is not construed to have interfered with defendant going upon the land in the exercise of that right, but simply to have enjoined it from "trespassing upon said described property, or interfering with or disturbing the possession thereof" by plaintiff. For these reasons, the judgment appealed from is amended to so restrict the injunction issued by the court a qua as to reserve to defendant all of its legal and charter rights in and upon said land, and to strike from the decree the limit of 30 days within which defendant might sue for the land, and the penalty for not filing said suit within the time mentioned. The right to lay out streets through and over said property is reserved for future consideration. In all other respects, the judgment is affirmed at appellant's cost. (129 La 345) No. 18,059. (Supreme Court of Louisiana. June 30, 1911. Rehearing Denied Oct. 16, 1911.) (Syllabus by the Court.) 1. QUIETING TITLE (§ 16*)-RIGHT OF AC TION-PERSONS ENTITLED TO SUE. may invoke the original nullity of the lease for want of consideration and failure to impose an obligation on the grantee, even though he or the former owner might have been estopped to invoke such nullity as against particular parties and at particular times by reason of acquiescence in the incurring of expense and the undertaking, or actual prosecution, of work for the accomplishment of the purposes of the contract. [Ed. Note.-For other cases, see Mines and Minerals, Dec. Dig. § 58.*] 3. MINES AND MINERALS (§ 66*)-OIL AND MINERAL LEASE-ABANDONMENT BY LESSER The question of the abandonment of a contract such as an oil and mineral lease by the lessee is ordinarily a matter of fact and intention, but it may be altogether a matter of fact and law; and where, as a matter of fact, work under such contract is discontinued under circumstances which fail to furnish a sufficient reason for the discontinuance, or for the belief that there was any definite intention of resuming such work, the fact of the abandonment is controlling. [Ed. Note.-For other cases, see Mines and Minerals, Dec. Dig. § 66.*] Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Winston Overton, Judge. Action by John G. Gray against John V. Spring and others. From a judgment for plaintiff, defendants appeal. Affirmed. Gorham, Gorham, Williams & Williams, Farrar, Jonas, Goldsborough & Goldberg, and Gayle & Porter, for appellants. Leon Sugar, D. E. Greer, Denegre & Blair, and Victor Leovy, for appellee. Statement of the Case. MONROE, J. This is a suit to annul and cancel from the records certain oil and mineral contracts, or, in the alternative, and in the event that the contracts are sustained, to recover rents which, it is alleged, would, in that event, be due thereunder. The facts upon which the suit is based are as follows: Prior to May 14, 1901, John G. Gray, plaintiff herein, and Aladin Vincent, owned 4,688.05 acres of land in Calcasieu parish. On that day Gray sold his interest to Vincent and two associates (the Messrs. Perry) for $234,402.50, of which $25,000 was paid in cash, and the balance was represented by notes, payable in one, two, and three years, with interest at 8 per cent., and secured by mortgage and vendor's lien. The first note was not paid at maturity, and in the meanwhile Vincent and his associates Where one purchases real estate sold by the sheriff under execution, he acquires it with all the rights of the seised debtor and former owner, and subject to the burdens imposed by him, and no one can thereafter either deprive him of those rights or increase those burdens. Hence, where such purchaser finds the property so acquired incumbered with an oil and mineral lease, into which the former owner had entered, he has the same right of action to annul it as operating to cloud his title that such former owner had. [Ed. Note. For other cases, see Quieting Ti-appear to have organized the Vinton Oil & tle, Dec. Dig. § 16.*] 2. MINES AND MINERALS (§ 58*)-OIL AND MINERAL LEASE-RIGHT TO ATTACK VALID ITY. Where a purchaser at sheriff's sale finds the property acquired by him incumbered with an oil and mineral lease entered into by the former owner, and finds that the lessee is, and for more than a year prior thereto has been, merely making a pretense of prosecuting, with Sulphur Company, Limited., of which Vincent was made president, and to have conveyed to that company the whole of the land mentioned. On April 25, 1903, Gray & Vinton Company (as we shall call it), represented by Vincent, entered into a written contract which recites that by payments on one of the notes held by Gray the balance For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes Of the tracts of land, upon the title to which plaintiff alleges that the contracts of which he is complaining are casting a cloud, the N. 1⁄2 and S. E. 4 of S. E. 4 of section 34, township 10 S., range 12 W., were acquired by him by the purchase from Vincent of June 9, 1905, and the other tracts were acquired at the sale by the sheriff of January 7, 1905, none of the property here in dispute having been included in the sale by plaintiff to Vincent of May 14, 1901, or in the mortgage granted to plaintiff by Vinton Company on April 25, 1903. due on all of them had been reduced to $200,000, and whereby Gray agreed that the interest thereon should be reduced to 5 per cent. and the terms of payment extended; and Vinton Company in order further to secure such payment specially mortgaged in favor of the then and future holder of the notes the half interest in the land in question which had not been owned by Gray. On August 8, 1904, Gray obtained judgment on the notes, upon which no further payments appear to have been made, with recognition of his mortgage on the entire property, and, by virtue of a writ of execution issued thereunder, the sheriff seized the entire property, together with other tracts belonging to Vincent, and on January 7, 1905, adjudicated all that he had seized to the plaintiff in the writ. Thereafter, on June 9, 1905, Gray and Vincent entered into a notarial | * * in consideration of the sum of $1.00, contract reading in part, as follows: "That for the purpose of preventing litigation, and in order to adjust their difficulties, John G. Gray and Aladin Vincent have agreed as follows, to wit: That said Aladin Vincent does hereby ratify and approve the adjudication made by the sheriff * to John G. Gray, on January 7, 1905. The said Aladin Vincent does hereby transfer and deliver to the said John G. Gray all fencing on the property embraced in the adjudication aforesaid, as well as all fencing now under seizure, under alias writs of fi. fa., issued in the aforementioned suit. * The said The present relation of the defendants to the tracts in dispute came about as follows: On February 4, 1901, Vincent, who then owned said tracts, entered into a contract with Dr. Jno. V. Spring, reading as follows: "That A. Vincent, party of the first part, paid by Jno. V. Spring, parties of the second part, * and the further consideration hereinafter mentioned, have (sic) granted, bargained, sold, and conveyed, and do, by these presents, grant, bargain, sell, and convey, unto the said parties of the second part, their heirs and assigns, all of the oil, gas, and coal and other minerals in, and under, the following described land, to wit: 160 160 Northwest 14 section 34.. 2,320. "All in township 10 south, range 12 west, La. Mer., together with all the rights of ingress and egress, at all times, for the purpose of drilling, mining, and operating for minerals. and to conduct all operations and to lay all pipe necessary for the production, mining, and transportation of the oil, gas, coal, or other minerals; reserving, however, to the party of the first part the equal one-eighth of all oil produced and saved upon said premises, to be delivered in the pipe line to the credit of the party of the first part, free of charge. If coal is found, the parties of the second part agree to pay to the party of the first part 5 cents per ton for every ton of the same that is mined and marketed, payable monthly; if gas or other minerals are found, second party agrees to pay, monthly, for the product of each well while the same is being used off the premises. Aladin Vincent does hereby bargain, sell, transfer, and deliver unto the said John G. Gray, with subrogation of all of the rights and actions of warranty to which he is, or may be, entitled, against all former owners or vendors, the following described property, to wit: The N. 2 section and the S. 12 of S. E. 4 of Sec. 34; T. 10 S. R. 12 W.; the W. 1⁄2 of S. E. 4 and S. W. 4 of section, and W. 2 of N. W. 4 of Sec. 23; T. 11 S., R. 13 W.; all that part of S. W. 14 of N. W. 4 of S. W. 4 of Section 15 T. 10 S. R. 12 W., Calcasieu parish, containing 5 acres, more or less. To have an dto hold the above-described property, together with all and singular the rights and appurtenances thereto in any wise belonging, unto the said John G. Gray and to his heirs and assigns forever; binding himself and his heirs, executors and administrators, to warrant and forever defend all and singular the said property unto the said John G. Gray, his heirs and assigns, against any person whomsoever lawfully claiming or to claim the same or any part thereof. * The said Aladin Vincent binds and obligates himself to vacate the premises now occupied by him, and which are included in the aforesaid adjudication * on or before thirty days after date. The said John G. Gray hereby binds and obligates himself to purchase, from Mrs. Aladin Vincent, at the price and sum of $5.00 per acre, the following describ-ditions: ed lands owned by the said Mrs. Aladin Vin- "In case operations for either the drilling of cent, to wit: The S. E. 4 of the S. E. 4a well for oil or mining for other minerals are of Sec. 18 and the E. 2 of the N. E. 4 of not begun and prosecuted with due diligence Sec. 19 and the N. W. 4 of the S. W. 14 of within 60 days from this date, then this grant Sec. 20, T. 11 S. R. 12 W. Louisiana merid- shall immediately become null and void, as to ian, containing 160 acres more or less. The both the parties; provided, that said second said John G. Gray does forever release and party may prevent such forfeiture, from year discharge the said Aladin Vincent from any to year, by paying to the first party the sum and all obligations or liability unto him, the of $2,320 per annum, until such well is comsaid John G. Gray, on account of the judg-pleted or until shipments from such mines have ment rendered in the said suit No. 5208, entitled John G. Gray v. Aladin Vincent et al., and will enter said cancellation on * "To have and to hold the above-described premises to the said parties of the second part, their heirs and assigns, upon the following con begun. In case the parties of the second part should bore and discover either oil or gas, coal, gold, lead, or other minerals within the time lease, incumbrance, or conveyance shall be in full force and effect for twenty-five years from the time of the discovery of said product, and so long thereafter as oil or gas, coal, lead, or other minerals can be produced in paying quantities. "Whenever sales are being made of the product on the land above described, a settlement shall be made at the end of each quarter; providing that first party shall have the right to pay for piping from surface to artesian water and take the water in case no oil or mineral is found; and providing that second party shall not interfere with cultivation, irrigation, and grazing of said lands further than may be necessary for the proper working of said wells or mines. "This lease is not intended as a mere franchise, but is intended as a conveyance of the property above described for the purposes herein mentioned, and it is so understood by both parties to this contract. "It is understood between the parties to this agreement that all conditions between the parties hereto shall extend to their heirs, executors, administrators, and assigns. The said party of the second part is further to have the privilege of using sufficient gas and water from the premises herein leased to run the necessary engines, the right to remove any machinery, fixtures, and buildings placed on said premises by said party of the second part, or those acting under him, and is not to put down any well for oil on the lands hereby leased within ten rods of the buildings now on said premises without the consent of the party of the first part. of May. Banker, another defendant, who worked for Stribling, testified that the latter began work in April, and it otherwise appears that in April Vincent complained that Spring's contract had not been complied with -a complaint which, as we shall see, he followed in 1904 by a suit to annul the contract, on the ground that the work had not been prosecuted with diligence. Vincent also testifies in this case that Stribling began work in April, 1901, but he does not profess to be very positive as to the exact date. However that may be, the only penalty imposed upon Stribling by his contract for failure to comply therewith was the forfeiture of the onefourth interest in the Vincent-Spring "oil and mineral lease" (as the parties, generally, call it), and on July 29, 1901, Stribling sold his interest and appliances to E. D. Prather and withdrew from the business; the reason that he gives for so doing being that he had some other oil interests, and was not able financially to go on. Prather, after buying out Stribling, made a contract of some kind with Spring and S. F. Wiles, but it does not definitely appear what they did in the way of executing the main contract, though it does appear that Vincent still complained that the main contract had not been executed, and that there was some talk of a suit to declare it at an end, and it further appears that Prather in September of 1908 wrote to the curator ad hoc who had been appointed to represent him in this case, saying: "And it is further agreed that the second party, his heirs or assigns, shall have the right, at any time, to surrender up his lease and be released from all moneys due and conditions unfulfilled then; and from that time this lease and agreement shall be null and void and no longer binding on either party, and the "Yours of 5th inst. received. I do not care payments which shall have been made be held. by the party of the first part as full stipulated to have any one represent me in this case as damages for the nonfulfillment of the forego-I think Mr. Gray has every right to ask for ing contract, and all the conditions between a cancellation of the lease, and I thought it the parties hereunto shall extend to their heirs, had been, long since, canceled by lapse." executors, and assigns. On August 5, 1902, Prather, Spring, and Wiles entered into a contract with the "Vinton Oil Syndicate" (not to be confused with the Vinton Oil & Sulphur Company), of which W. B. Sharp was president, whereby Prather waived his interest in the main contract, and Spring and Wiles, appearing as the parties of the first part, assigned to the syndicate a one-half part of "that certain oil and mineral lease from A. Vincent" for a consideration stated as follows: "Now the consideration for the assignment herein made to the said party of the second part is that it will continue the prosecuoriginal lease, with due diligence, so as not to tion of said work, under the terms of said cause a forfeiture of the same, and unless oil is soon found in paying quantities, will sink a well on said property to a depth of 1,500 feet, which is to be done within four months from this date if possible, unavoidable delays and accident excepted." For the execution of the contract thus recited Dr. Spring made a contract with T. C. Stribling, which recites that the "lease" from Vincent requires that operations shall be "be gun and prosecuted with due diligence" within 60 days from February 4, 1901, and that Stribling is to begin and prosecute the work within that time in order to prevent the forfeiture of said "lease." Spring testifies that the contract was really made at Vinton on March 27th, but was not signed until March 29th. The instrument referred to purports to have been drawn up in San Antonio, Tex., on March 29th, where it was signed on that day by Spring, but it was not sign ed by Stribling at all; and Stribling, as a witness for, and favorably disposed to, defendants (he being one of them), testifies "In case the party of the second part should that he made the acquaintance of Vincent determine to abandon the further development of the property, it binds itself to give the parand Spring in April, and began his opera- ties of the first part thirty days notice of such that are unimportant to the present inquiry, There are, then, some further stipulations and the contract proceeds: |