Temple v. McCall et al

Filing 37

MEMORANDUM RULING: For reasons stated in this ruling, a judgment will be entered in favor of defendants. Counsel are directed to confer and draft a proposed judgment consistent with this ruling and submit it to the court within 21 days. Signed by Magistrate Judge Mark L Hornsby on 5/25/12. (crt,Delgado, S)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

HAROLD H. TEMPLE

CIVIL ACTION NO. 10-cv-1415

VERSUS
MARSHA PAUL McCALL, ET AL

MAGISTRATE JUDGE HORNSBY

MEMORANDUM RULING
Introduction
Harold H. Temple filed this declaratory judgment action to resolve ownership of a
mineral servitude on 14.982 acres in Sabine Parish, Louisiana. He named as defendants five
landowners who (collectively) have a competing claim. The case is based primarily on the
relevant conveyance records, which the parties have submitted into evidence. The court also
heard testimony at a bench trial from Plaintiff and two title examiners. For the reasons that
follow, a judgment will be entered in favor of defendants.
Relevant Facts
The disputed acreage was originally part of a larger tract of land owned by Elizabeth
Paul Jenkins and T. J. Paul, Jr. In 1965, they sold several tracts, totaling about 185 acres, to
the Sabine River Authority (“SRA”), State of Louisiana, for use in the development of the
Toledo Bend Reservoir. One tract, identified in the Cash Sale instrument (Exhibit 1) as Tract
No. 4214, was 35.89 acres carved from a 40-acre tract. It was described as part of the
Southwest Quarter of the Northwest Quarter, Section 11, T 9 N, R 14 W, Sabine Parish. Mr.

Paul and Mrs. Jenkins specifically reserved the mineral rights for the part that they sold, as
follows:
There is especially excepted from the sale or conveyance herein made, and
reserved to the vendors, in perpetuity, all of the oil, gas and other minerals in,
on and under said lands, and that may be produced from said lands ... .
A mineral sale or reservation does not create a separate mineral estate, but only a right in the
nature of a servitude that allows the holder to go on the land of another to explore for,
produce, and reduce to possession the underlying minerals. Horton v. Mobley, 578 So.2d
977, 983 (La. App. 2d Cir. 1991). A mineral servitude is ordinarily subject to the prescription
of nonuse of ten years. Neumin Production Co. v. Tiger Bend, Ltd., 58 So.3d 1088, 1091 (La.
App. 3d Cir. 2011). The parties agree that the Paul-Jenkins reservation of the mineral rights
in perpetuity was allowed because La. R.S. 31:149 suspends the running of the prescription
of nonuse against a mineral interest reserved by a person when the land is acquired by the
State or any subdivision or agency (such as the SRA). After this transaction, Mrs. Jenkins
and Mr. Paul co-owned about 4.11 acres of land in Section 11 and held a mineral servitude
on the other 35.89 acres (which was owned by the SRA).
A few months later, in 1965, Mrs. Jenkins and Mr. Paul executed an Exchange Deed
that involved several tracts of property. Mrs. Jenkins conveyed to Mr. Paul “all of her right,
title and interest in and to” various tracts of property, including “SW¼ of NW¼ LESS AND
EXCEPT that part conveyed to Sabine River Authority, State of Louisiana,” by the earlier
Cash Sale. See Exchange Deed at Exhibit 2 and Act of Correction at Exhibit 3.

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Mr. Paul, in 1969, executed a Credit Deed (Exhibit 4) by which he conveyed property
to R. V. Woods and Lamar Haddox. This lawsuit is based on competing interpretations of
the instrument and whether it conveyed to the buyers Mr. Paul’s mineral servitude over a part
of the 35.89-acre tract owned by the SRA. The deed stated that Mr. Paul did “by these
presents, Grant, Bargain, Sell, Convey and Deliver with full guaranty of title, and with
complete transfer and subrogation of all rights and actions of warranty against all former
proprietors of the property presently conveyed unto” Mr. Woods and Mr. Haddox the
following described property:
All that part lying West and South of the Public Road #143 or sometimes #174
of the Southwest Quarter of the Northwest Quarter of Section 11, Township
9 North, Range 14 West, LESS portion sold to Sabine River Authority, plus
the lease portion of lease back on lands so sold pertaining to act herein
conveyed.
Mr. Haddox later acquired the interest of his co-owner Mr. Woods. The property then
passed to the heirs of Mr. Haddox. In March 2000, the Haddox heirs issued a Cash Sale
Deed to plaintiff, Harold H. Temple. The instrument used the identical legal description that
was used in the 1969 conveyance from Mr. Paul to Woods-Haddox. Exhibit 7.
A map (Ex. 10) indicates that there are two, small, noncontiguous parcels of land in
Section 11 that are southwest of the public road and are not part of the SRA Toledo Bend
property. Mr. Temple testified that the two parcels total about 1.5 acres. This is the only
property in the section over which he claims “fee” ownership. He testified that mineral rights
were not, at the time of his purchase, the hot issue they became a few years later when the

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Haynesville Shale gas exploration began, so they were not of much concern during the
transaction. Mineral rights in the area have since become quite valuable.
Analysis
Mr. Temple takes the position that the 1969 deed from Mr. Paul to Mr. Woods and
Mr. Haddox transferred a mineral servitude on 14.982 acres contained in Section 11, which
acreage was sold to the SRA in 1965. Mr. Temple contends that those mineral interests
passed to him when the Haddox heirs sold him property by a deed that used the same legal
description. Temple focuses on the “all rights” language in the deed from Mr. Paul to
Woods-Haddox that sold “with complete transfer and subrogation of all rights and actions
of warranty against all former proprietors of the property” that is described as that part of a
quarter-quarter of Section 11 that lies southwest of Public Road No. 143, “less portion sold
to Sabine River Authority ....” (Emphasis added.) Mr. Temple reasons that Mr. Paul sold the
entirety of what he owned in the area, less what he had already sold to the SRA (which he
did not own and could not sell). The mineral rights at issue, he points out, were not sold to
the SRA, so he contends the “less” provision that carves out the SRA property does not
reference the mineral rights because they were not sold to the SRA. He adds that Mr. Paul
did not include any language to expressly reserve any minerals.
Defendants respond that the property description at issue refers to surface area of land.
Mr. Paul, they contend, sold land described as “[a]ll that part [of Section 11] lying west and
south of the public road ... .” He then subtracted from that broad description the portion of
that land already conveyed to the SRA, by using the “LESS portion sold to [SRA]” clause.
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They reason that because the SRA portion was excluded from the property described, any
mineral rights or other rights Mr. Paul owned on that land were likewise excluded.
The parties base their arguments on their suggested interpretation of the act, together
with testimony from the title examiners about custom and usage in property descriptions.
The only caselaw that has been offered as particularly relevant is Sheridan v. Cassel, 70
So.3d 89 (La. App. 3d Cir. 2011), writ denied, 71 So.3d 317 (La.). Mr. Temple contends
that the case addresses the exact issue presented in this case and compels its resolution in his
favor. Defendants respond that the facts are distinguishable and, alternatively, the decision
is not binding on this court.
The majority decision in Sheridan does not provide much detail about the facts and
transactions underlying the dispute, but the dissent describes the facts in some detail and
must be drawn upon to understand the context of the decision. Mr. Cassel owned an 80-acre
tract in Section 35 in Sabine Parish. In 1966, Cassel sold to the SRA a 3.27-acre tract that
was carved from the 80 acres. Cassel expressly reserved in perpetuity the right to explore
for minerals under the 3.27-acre tract.
Cassel later sold to Gertrude Ray property described as a certain half of a quarter in
Section 35, “containing 80 acres, more or less,” plus improvements. The act of sale did not
exclude from the described 80 acres the 3.27-acre tract that Cassel had sold three years
earlier to the SRA.
Gertrude Ray later died. The judgment of possession in her succession recognized
Cassel as owning an undivided one-half interest of a usufruct over a 77-acre tract and
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recognized Carolyn Sheridan as the naked owner of the property that was described in the
judgment as the half of a quarter of Section 35, less a 3.27-acre tract.
Prior to the completion of the succession, Cassel had signed a quitclaim deed to
Sheridan of all of his interest, including the usufruct in and to certain properties, which
included a description of the portion of Section 35, less the 3.27-acre tract, containing 77
acres. Cassel also executed an assignment to Sheridan of “all of my right, title, claim and
interest, real and personal, in and to the “Estate of Gertrude C. Ray, deceased ... .”
The lawsuit focused on whether Mr. Cassel retained the mineral interest over the 3.27acre tract or whether he had sold it to Ms. Ray. If he had sold the mineral interest to Ms.
Ray, the later transactions would put the mineral interest in the hands of Ms. Sheridan.
The cash sale from Mr. Cassel to Ms. Ray, similar to the primary instrument in this
case, declared that Cassel did “Grant, Bargain, Sell, and Convey and Deliver with full
guarantee of title, and with complete transfer and subrogation of all rights and actions of
warrant against all former proprietors of the property herein conveyed” to Ms. Ray, the East
Half of the Southeast Quarter of Section 35, containing 80 acres, more or less, plus
improvements. The trial judge reasoned that Cassel conveyed “all rights” to the tract, which
included his mineral interest on the 3.27 acres. The majority of the appellate court agreed
and affirmed the decision. The dissenting judge reasoned that Cassel’s sale to Ms. Ray did
not and could not include either the 3.27-acre tract or the separate and distinct mineral
servitude in favor of Cassel over that 3.27-acre tract.

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The undersigned does not agree with the construction given by the Sheridan majority
and Mr. Temple to the “all rights” phrase found in instruments at issue in this case. The
language, or a similar variation, is commonly encountered in Louisiana instruments. The
seller conveys with full guaranty of title, and with complete transfer and subrogation of all
rights and actions of warranty against all former proprietors, certain described property. The
seller may be selling all of his rights in the property, but it is not necessarily because of the
“all rights” language in that provision. That language is more accurately read to convey to
the buyer all of the seller’s rights and actions of warranty against the seller’s predecessors
in title. Louisiana instruments sometimes describe the property being conveyed as “all of my
right, title, and interest in and to” a described tract. That “rights” language would encompass
any mineral rights the seller had in connection with the described tract, but the rights
language in the warranty clause does not.
The court finds that the defendants offer the legally and grammatically correct
interpretation of the Paul Credit Deed. The parties have not identified a decision from the
Supreme Court of Louisiana that would provide guidance in this case. It appears the nearest
decision is Sheridan, and neither the majority nor dissenting opinion cited any other
Louisiana decisions that addressed a factually similar dispute. In making an Erie guess in
the absence of a ruling from the state’s highest court, the intermediate appellate courts serve
as “a datum for ascertaining state law which is not to be disregarded by a federal court unless
it is convinced by other persuasive data that the highest court of the state would decide
otherwise.” Howe ex rel Howe v. Scottsdale Ins. Co., 204 F.3d 624, 627 (5th Cir. 2000).
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The undersigned is persuaded that the dissenting opinion in Sheridan and the arguments by
defendants have more logical force and are more indicative of how the Supreme Court of
Louisiana would resolve the dispute. Mr. Paul’s sale to Woods-Haddox did not convey any
mineral interest he had with respect to the SRA property. Mr. Temple, therefore, did not
acquire those mineral interests when he purchased from the Haddox heirs. He acquired only
the ownership of the approximately 1.5 acres that fell within the description.
Counsel are directed to confer and draft a proposed judgment consistent with this
ruling and submit it to the court within 21 days. The time allowed for filing any notice of
appeal will not commence until a judgment is actually entered.
THUS DONE AND SIGNED in Shreveport, Louisiana, this 25th day of May, 2012.

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