A deed reserving a mineral servitude for a period of ten years does not create a ten-year fixed servitude, but instead re-affirms the statutory ten-year prescription of nonuse applicable to mineral servitudes established in article 27 of the Louisiana Mineral Code. Thus, the right did not expire after the passage of ten years, but was kept alive by mineral production. In St. Mary Operating Company v. Lester Joseph Champagne, 06-984 (La. App. 3 Cir. 12/06/06), 2006 La. App. LEXIS 2750, the Louisiana court of appeal determined that a reservation “all of the minerals underlying or which may be produced from the above described tracts for a period of ten years” was a mineral servitude, not a mineral royalty, and that the servitude was subject to the statutory prescriptive period.

St. Mary Operating Company filed a concursus proceeding to determine to determine the proper recipient of royalties from an oil well in Vermilion Parish, Louisiana. The two groups of competing defendants were the buyers and the sellers of the land. The deed of sale included this clause: “Vendors reserve unto themselves all of the minerals underlying or which may be produced from the above described tracts for a period of ten years, this being a reservation of royalties, executive rights, bonuses, delay rentals, and all other mineral rights whatsoever.”

Because this language does not reserve surface rights in favor of the sellers, the court noted that the language would seem to create a mineral royalty rather than a mineral servitude. However, the sellers granted a mineral lease that conveyed surface rights to the lessee. The court found that the right created by the parties in the deed was a mineral servitude, because the owner of a mineral royalty could not have granted such lease rights.

The court next asked whether the language of the deed created a fixed, ten-year term, not subject to prescription, or whether it indicated the parties’ adoption of the regular ten-year prescriptive period, which is subject to interruption. Finding that all mineral servitudes created in Louisiana are subject to the rules of prescription, and given that the parties did not specify in the deed that the reserved ten-year period was for a fixed term and was not subject to prescription, the court found it to be a servitude. Thus, the sellers’ rights had not expired at the end of ten years, but instead had been maintained by mineral production.