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Magee v. Worley

Court of Appeal of Louisiana, Second Circuit

March 4, 2015

JOE D. MAGEE, et ux., Plaintiffs-Appellees
v.
WYETH HARDEY WORLEY, et al., Defendants-Appellants; HOWARD C. TALLEY, SHIRLEY KAYE KAUFFMAN, et. al., Plaintiffs-Appellees
v.
WYETH HARDEY WORLEY, et al., Defendants-Appellants

Page 24

Appealed from the Forty-Second Judicial District Court for the Parish of DeSoto, Louisiana. Trial Court Nos. 72373 & 72443. Honorable Charles B. Adams, Judge.

AYRES, WARREN, SHELTON & WILLIAMS, By: J. Todd Benson, Lee H. Ayres, Counsel for Appellants.

THE PESNELL LAW FIRM, By: Billy R. Pesnell, Counsel for Appellees, Joe Magee, et ux.

COOK, YANCEY, KING & GALLOWAY, By: Bernard Slattery Johnson, Stephen Richard Yancey, II, Counsel for Appellees, Jeffrey Talley, Executor of the Howard Charles Talley Estate, et al.

Before STEWART, MOORE and PITMAN, JJ.

OPINION

Page 25

[49,653 La.App. 2 Cir. 1] MOORE, J.

The owners of a mineral servitude, the Worleys, appeal a judgment on the merits that found the servitude prescribed for nonuse and awarded ownership of the minerals to the surface owners, the Magees and the Talleys.[1] Finding no manifest error, we affirm.

Factual Background

In 1958, the Worleys' ancestor in title sold a 176.6-acre tract in DeSoto Parish to C.B. Magee (" C.B." ), the Magees' ancestor in title, with a reservation of all minerals. Later, in 1974, Commercial National Bank (" CNB" ) became trustee of the Worleys' mineral interests.

At the time of the sale with reservation of minerals, two wells were producing on the servitude; one of these continued in operation until 1972. After 1959, three other wells were drilled on the servitude, two of which ceased production by 1981. The third, the Worley #1, was spudded in March 1983 and in production until November 1987, when its operator, Faulconer, abandoned it. In October 1999, an operator drilled the Palmer #1 well on the servitude, and in March 2010, another operator drilled the Murphy 5H #1.

The Magees and the Talleys are the current surface owners of the tract. In early 2011 they filed separate suits to declare the servitude prescribed for nonuse. They contended, in a nutshell, that the Worleys failed to use the servitude between November 1987, when Faulconer abandoned the Worley #1, and October 1999, when another operator spudded the [49,653 La.App. 2 Cir. 2] Palmer #1, over 10 years later.

The Worleys countered with three documents: (1) November 15, 1993, " Declaration of Adoption of Operations by Another," executed by a trust officer at CNB and not signed by C.B., but stating that C.B. " ran a small line from the well to his house" and used the gas for residential purposes since 1989; (2) March 31, 1994, affidavit signed by C.B. to reclassify the Worley #1 as a well for residential use; and (3) March 1, 1994, letter agreement signed by C.B., agreeing to pay CNB $5.00 a month " so long as I take said gas from said well for residential purposes." Each of these documents was drafted by CNB.

All parties moved for summary judgment, which the district court granted in favor of the surface owners. The court relied on ...


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