Prescription and Mineral Sevitudes (Part 2)

Prescription of non use is the most commonly litigated issue concerning mineral sevitudes.

The mineral code provides that prescription commences from the date when the servitude is created.

According to The Mineral Code, a use of a sevitude suffiecient to interupt prescription consists of good faith operations for the discovery and production of minerals. The code reqires proof of three elements to establish good faith.

1. Operations must be commenced with reasonable expectations of discovering and producing minerla in paying quanities at a particular point or depth.
2. A well must actually be drilled at the chosen site to the depth at which there were reasonable pectations of discovering and producing minerals. (Note: it is enough that a well was drilled, the well does not have to produce, a dry hole suffices if the other good faith requirements are met!)
3. Operations must be conducted in a manner that they constitute a single operation, although drilling or mining is not conducted at all times.


If these requirements are met, prescription is interupted from the date the well is spudded, and prescription begins to run anew from the last day on which actual operations are conducted. Pre-spudding activity, such as site prep, location building, surveys, erection of structures including the driling rig DO NOT interupt prescription. Note that this contrasts with activities considered "drilling operations" under many standard lease forms.

Unitization of part of the tract burdened by the servitude does not divide the servitude. However, unitization canresult in a division of the servitude in determining whether prescription has been interupted. The location of the well determines whether the servitude is divided for this purpose. If the unit well is located on the servitude, then prescription is interupted for the entire servitude.
However, the well is located on land not burdened by the servitude, then the servitude is divided into unit and non-unit lands for the purpose of determining whether prescription is interupted.

Also, according to article 59, an obstacle that prevents the servitude owner from using his servitude that the sevitude owner cannot remove or prevent suspends prescription for as long as the obstacle exists. Suspension is different from interuption. When interuption occurs the prescription period commenses anew for 10 years, when suspension occurs the usual result is the period of prescription that accrued prior ro the existance of the obstacle is subtracted from the 10 years to determine how long the servitude will last after the obstacle is removed. If the obstacle exists when the servitude is created, prescription will not run until the obstacle is removed. One example of a nobstacle could be a servitude that is burdened by governmental powers of police such as zoning or envionmental regulations; however most questions regarding what is an obstacles is more difficult.

Prescription does not apply to all servitudes. Most notably is when the Federal or State government aquires land from any person and the acct, judgement, etc. contains a reservation, prescription does not run for as long as the government owns the surface. Should the land already be burdened with a servitude when the government aquires the land, the prescriptive period runs as if the aquiring athority had not aquired the land! upon the prescritive period, the transferor of the land shal without further agreement become vested in the mineral right if they had reserved the minerals when the land was aquired by the government body.

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Comment by Dee888 on July 8, 2009 at 9:04
Thank you very much!
Comment by The_Baron on July 8, 2009 at 8:38
The following section of the mineral code applies:

§37. Unit production as interruption of prescription

Production from a conventional or compulsory unit embracing all or part of the tract burdened by a mineral servitude interrupts prescription, but if the unit well is on land other than that burdened by the servitude, the interruption extends only to that portion of the servitude tract included in the unit.

Acts 1974, No. 50, §37, eff. Jan. 1, 1975.
Comment by Dee888 on July 8, 2009 at 6:03
"If the unit well is located on the servitude, then prescription is interupted for the entire servitude.
However, the well is located on land not burdened by the servitude, then the servitude is divided into unit and non-unit lands for the purpose of determining whether prescription is interupted."

I've been looking for this in my mineral code book for this but can't seem to find it. It is old, from 1989 but was wondering if and where it actually is in the book. Any help would be greatly appreciated
Thanks and keep up the good work!
Comment by The_Baron on June 8, 2009 at 7:50
§42. By whom a mineral servitude may be used

Except as provided in Articles 44 through 52, use of a mineral servitude must be by the owner of the servitude, his representative or employee, or some other person acting on his behalf.

Acts 1974, No. 50, §42, eff. Jan. 1, 1975.
Comment by The_Baron on June 8, 2009 at 3:09
KB,

I would say that any operations would interupt prescription, as long as the requiremnets set forth in the mineral code are met. However, without a lease, any operations would not be a good faith use since they would be essentially mineral tresspass. But....just to be safe I would not consider prescription to be running until the well in question is P&A.
Comment by The_Baron on May 28, 2009 at 8:16


For some reason i was unable to post this in my blog.

But in this example:

Well B and C would interupt prescription on the entire servitude, while Well "A" would only interupt prescription on the area of the servitude included in the Unit.

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