Louisiana Partition Agreement: You Can’t Trade What You Don’t Own

Originally published by Charles Sartain.

Posted by Charles Sartain

Les urges the Tigers to read Energy and the Law.

Square Mile Energy LLC v. Pommier considered this language in a Louisiana partition agreement: “N.B: Included in this transfer are any and all mineral rights, when available, to Roxanne and all surface rights.” Did this language include an interest in a mineral servitude inherited by Paul as co-owner with his siblings?

To answer the question, a few facts are in order. Paul and his siblings inherited five tracts of land in Vermilion Parish. Paul and Roxanne acquired Tract 2 during their marriage, with Paul and the siblings reserving all minerals. Upon Paul and Roxanne’s divorce they executed the partition agreement, in which Roxanne was granted Tract 2.

Roxanne’s position

• She and Paul owned Tract 2 as community property.
• A fundamental rule of Louisiana law is that a conveyance of land carries with it all the incidents of ownership, including mineral rights, except such rights as may be expressly reserved.
• The mineral rights were not expressly excepted in the transfer and therefore the agreement unambiguously transferred a portion of Paul’s mineral rights to Roxanne.

The court did not agree

• “When available” rendered the clause ambiguous. Based on affidavits and the Judgment of Possession by which Paul and the siblings inherited the property, the court concluded that the parties did not intend to transfer ownership of Paul’s interest in the mineral servitude to Roxanne.
• Paul was co-owner with his siblings and not the owner of the mineral servitude under Tract 2. Therefore, he could not have transferred the minerals.
• The plain language of the document compelled the conclusion that the parties intended that the mineral rights would transfer to the owner of the surface after 10 years of nonuse.
• The contract was a “Partition of Community Property”. The stated intent was to liquidate the community which formerly existed between them. Paul’s interest in the mineral rights was his separate property.
• The agreement required Paul to transfer all of his right, title and interest in the tract. To interpret the document according to Roxanne would render the language in the N.B. clause superfluous.

Eventually, one of these days, at a time further in the future than Roxanne would like, after cessation of current production on the tract, plus 10 years of nonuse, Roxanne will get her ownership of the minerals.

And our musical interlude, appropriate for the season.

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