Presentation is loading. Please wait.

Presentation is loading. Please wait.

LAISSEZ LE BON TEMPS ROULEZ IN FEE SIMPLE ABSOLUTE?? A Comparison of Texas and Louisiana By: Sarah Chaudhry and Tiffany Melchers 06/21/2012 Copyright ©

Similar presentations


Presentation on theme: "LAISSEZ LE BON TEMPS ROULEZ IN FEE SIMPLE ABSOLUTE?? A Comparison of Texas and Louisiana By: Sarah Chaudhry and Tiffany Melchers 06/21/2012 Copyright ©"— Presentation transcript:

1 LAISSEZ LE BON TEMPS ROULEZ IN FEE SIMPLE ABSOLUTE?? A Comparison of Texas and Louisiana By: Sarah Chaudhry and Tiffany Melchers 06/21/2012 Copyright © by the Kilburn Law Firm, PLLC All rights reserved. No part of this presentation may be used or reproduced in any manner whatsoever without written permission from the Kilburn Law Firm. For information please address Kilburn Law Firm, PLLC, 1001 W. Loop South Freeway, Suite 400, Houston, Texas

2 What is there to compare? COMMON LAW V. CIVIL LAW Copyright © by the Kilburn Law Firm, PLLC All rights reserved. *See copyright footnotes 1-2.

3 Roadmap: Terminology – a crash course in speaking civil code A brief history – The Great Schism Conveyancing – Louisiana Style Severance v. Servitude – What is conveyed? Mineral Leases – Louisiana Authority to Convey – Who can convey what? Notice v. Race – What you know v. how fast you can get to the courthouse Probate – What comes after the Jazz Funeral ? Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

4 T ERMINOLOGY County Real Property Deed of TrustStatute of LimitationAdverse PossessionLife EstatePower of AttorneyDeed Parish Immovables Mortgages Liberative Prescription Acquisitive Prescription Usufruct Mandate Act of Sale

5 O THER HELPFUL TERMS TO KNOW : HurricaneHand Grenade * See copyright footnotes 4-7.

6 The History of the Two States * See copyright footnote 3.

7 “Six Flags Over Texas” : Spanish Rule : Mexican Rule over Texas and Coahuila : Republic of Texas 1845 – present: The Lone Star State Influence of Spanish/Mexican law: Spanish system of measurement (varas, caballerias, labors and leagues), minerals belonging to the crown (until a series of Relinquishment Acts), community property regime, pleading by petition and answer Borrowing from a neighbor: In the 19 th century, Texas held several conventions to establish the rule of law. The Convention of 1835 recognized a state of war between Texas and Mexico and established trial by jury in a departure from the Spanish system. The Louisiana Civil Code was used to settle cases of civil attachment and the Louisiana Criminal Code of Procedure governed arrests and sequestration 1840: A critical year; independence had been declared; Texas officially adopts the Common Law Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

8 Louisiana & the Civil Code -17 th & 18 th century: French & Spanish Rule -1804: The French National Assembly enacted the French Civil Code (the Code Napoleon) – this would influence the Louisiana Code -Louisiana develops its own Code system: Civil Code, Commercial Code, Code of Civil Procedure, Code of Criminal Procedure -1825: Louisiana adopts the Code, written entirely in French (revised in 1870) – local inhabitants insist on the civil law -Borrowing from a neighbor: The Spindletop Field was discovered in Beaumont in 1901 – oil was discovered in Louisiana the same year. Louisiana courts soon discovered that a Mineral Code was needed. The Mineral Code was proposed in 1938, completed in 1963 and enacted in The Code and the cases that preceded it relied on Texas case law. Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

9 How does the history of these two states effect Real Estate Conveyances? The Louisiana Perspective

10 Conveyances = Acts of Sale When conveying immovable property, the Civil Code provides that an Act of Sale can be in the form of either an: 1) Authentic Act  where the signatories, or grantors, execute the document in front of 2 witnesses and a notary. OR 2) Act under private signature  where the document is simply executed by the parties, with no witnesses or a notary. Most Commonly used = Authentic Acts because they are self authenticating and can be recorded. Acts under private signature cannot be admitted as prima facie evidence of a transfer until the act is acknowledged (i.e., the signatories testifying in court to their signatures on the document). Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

11 Types of Acts of Sale: Louisiana recognizes three types of Acts of Sale: 1) Act of Sale with Warranties – which includes all stated and implied warranties 2) Act of Sale without Warranties – which excludes all warranties, including implied warranties, except for the warranty against eviction 3) Act of Sale at buyer’s peril and risk – which excludes all warranties Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

12 Implied Warranties for Acts of Sale: Seller warrants that a 3 rd party cannot evict the Buyer from the land If breached, Buyer is entitled to purchase price, fruits, revenues and legal fees. Courts apply this warranty to Acts of Sale and Acts of Sale without Warranties Warranty Against Eviction Seller warrants that the property is reasonably fit for ordinary use If breached, Buyer receives contract damages Courts only apply this warranty to Acts of Sale with warranties Warranty of Fitness for Ordinary Use Seller warrants that property does not have a latent defect If breached, Seller has opportunity to repair/correct (if acted in good faith) and if he cannot do so, Buyer is entitled to purchase price and expenses Courts only apply this warranty to Acts of Sale with warranties Warranty Against Redhibition Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

13 Acceptance of Quitclaim Deeds: In 1995, Louisiana adopted a Civil Code article codifying the use of quitclaim deeds in LA. Civ. Code Art. 2502: “A person may transfer to another whatever rights to a thing he may then have, without warranting the existence of any such rights… such transfer does not give rise to a presumption of bad faith…” Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

14 Act of Sale at Buyer’s Risk and Peril vs. Quitclaim Deed Although these instruments seem to be identical, a grantor tendering an Act of Sale at the buyer’s risk and peril is intending to convey the property. In a quitclaim deed, the grantor is intending to merely convey his interest in the property, if any, and not the property itself. Note: For these acts of sale, there are no implied warranties and after-acquired title doctrine does not apply. Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

15 What may be conveyed?

16 Louisiana Rights in Property O WNERSHIP The Owner of property in Louisiana has what the common law calls fee simple title If a usufruct is granted over the land, the owner becomes the “naked owner” Only the owner may grant a servitude S ERVITUDES G ENERALLY There are two types of servitudes: predial and personal A “Personal Servitude” is “a charge on a thing for the benefit of a person. There are three sorts of personal servitudes: usufruct, right of habitation, and rights of use.” A predial servitude is a charge on a servient estate for the benefit of a dominant estate; The two estates must belong to different owners. U SUFRUCT Defined as “a real right in and to the property of another for the life of the usufructuary” This enables the usufructuary to use the property and enjoy its fruits. A usufructuary (over the land) may not sell, lease or encumber the property unless given the power to dispose of “nonconsummables” ; otherwise, the naked owner (only) must execute any such conveyance including oil and gas leases One who has the usufruct of a mineral right, as distinguished from the usufruct land, is entitled to all of the benefits of use and enjoyment…” Thus, the mineral usufructuary may lease and develop the land himself(Sec. 192 & 193 of the Mineral Code Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

17 The Louisiana Mineral Code: The Minerals Section 4: Substances to which the Code is applicable – “The provisions of this Code are applicable to all forms of minerals, including oil and gas. They are also applicable to rights to explore for or mine or remove from land the soil itself, gravel, shells, subterranean water, or other substances occurring naturally in or as a part of the soil or geological formations on or underlying the land.  Compared to Texas: Sec of the Property Code, defines “minerals” as “oil, gas, uranium, sulphur, lignite, coal and any other substance that is ordinarily and naturally considered a mineral in this state, regardless of the depth at which the oil, gas, uranium, sulpher, lignite, coal or other substance is found Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

18 Severance vs. Servitude Texas - SeverencesLouisiana - Servitudes Adheres to the common law principle of ownership as a “bundle of sticks” The mineral estate may be severed from the surface estate Owner of the mineral estate may make reasonable use of the surface to remove the minerals Oil & Gas Leases are not merely contracts but vest the lessee with a determinable fee interest in the minerals Adverse possession may be applied to either estate Louisiana does not recognize a separate mineral estate in oil and gas ( Frost-Johnson Lumber Co. v. Salling’s Heirs – 1922); minerals are not susceptible to absolute ownership Only two estates in land: corporeal ownership of the soil and an incorporeal servitude for the use of the soil One may acquire only the right to go upon the land of another to explore for and produce the minerals; the party purchasing this right is granted a mineral servitude, which reduces them to possession and ownership (Art. 21 of the Mineral Code) Only the landowner may create a servitude Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

19 Adverse  Acquisitive Possession Prescription The Mineral Code concerns the minerals themselves, Civil Code articles on Property apply to more general principles, such as acquisitive prescription Actual possession is necessary for the accrual of acquisitive prescription and is a prerequisite for the assertion of certain real actions in Louisiana (determines the appropriate procedure and burden of proof) Period can be interrupted by acknowledgement of the owner’s title or suit by the owner to oust the adverse possessor Different requirements for 10-year and 30-year acquisitive prescriptive periods Does not apply against the federal government or the State of Louisiana Cannot be used to create a separate “right” to the minerals because a servitude must be granted by the owner Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

20 Acquisitive Prescription Periods 10 YEAR RULE30 YEAR RULE Alleged “Owner” must show that he acquired the property: (i) in good faith (ii) without knowledge of title defects (iii) under a deed translative of title (iv) had an actual taking of continuance possession for 10 years free from interference by the true owner Advantageous because of the shorter period and the adverse possesser need only possess a portion of the property covered by the deed, once 10 years has accrued, he is considered to be in possession of the remainder of the tract Must be the result of one deed and the tract must be contiguous Does not require any color of title Requires actual possession of the entire are claimed Title examiners must ensure that the property was severed from the public domain Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

21 Acquisitive Prescription & Mineral Rights The adverse possessor that gains land by prescriptive title owns the minerals as well; possession of the surface is deemed to be possession of the mineral right inherent in a fee title estate The “adverse possessor” must prove that the outstanding mineral right had not been possessed by use during the prescriptive period (LA. REV. STAT. ANN. 31: ,160) If use of the mineral rights has occurred, even with respect to a part of the rights outside the limits of the tract being adversely possessed, such use is deemed to be an ouster of the possession of the adverse possessor to such right If the Adverse possessor prevents a mineral owner from using his right by creating an obstacle to such use, the accrual of the acquisitive prescription period is interrupted for as long as the obstacle remains The most common method of acquiring rights to the minerals is the granting of a mineral servitude Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

22 5 Methods of Extinguishing a Mineral Servitude: Confusion – When a usufruct (limited personal servitude) is extinguished because the usufruct and the naked owner are united (analogous to the extinguishment of an easement) Renunciation or Remission – the servitude owner renounces the servitude by expressly remitting his right Specific Term or Resolutory Condition – The mineral servitude is originally created for a specific term Dissolution of the landowner’s title – the creator’s right is extinguished (i.e. fraud, forgery, failure to pay the purchase price) Prescription of Non-Use (the 10-year Rule) – 10 year limit on the “use of the minerals”, conveyance “starts the clock”, prescription can be interrupted Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

23 Interrupting the Prescription of Non-Use: Good Faith Drilling Operations To determine when prescription is interrupted one must determine when the servitude was created and what events are sufficient to extend the date of use; the owner of the mineral servitude has the burden of proving these facts The Code provides two methods to interrupt prescription: (i) actual production of the minerals covered by the servitude or (ii) good-faith operations for the discovery and production of such minerals Actual production is a straight-forward inquiry; most litigation hinges on what constitutes “good faith operations” The term of the servitude may be extended once actual drilling is commenced, even if such operations are not completed until after the prescriptive period has accrued Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

24 “Good Faith” Drilling Operations: Section 31:29 of the Louisiana Mineral Code states that “good faith drilling operations” are those that: (1) are commenced with reasonable expectation of discovering and producing minerals in paying quantities at a particular point or depth (2) Continued at the site chosen to that point or depth; and (3) Conducted in such a manner that they constitute a single operation although actual drilling or mining is not conducted at all times Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

25 Good Faith Requirement Cont’d: For “commencement” to begin, mere preparation is not enough (Sec. 31:30 – Preparations for the commencement of actual drilling or mining operations, such as geological exploration, surveying, clearing of a site, and the hauling and erection of materials and structure necessary to conduct operations do not interrupt prescription” This is a case-by-case factual determination to be made by the courts Requires a single operation ( McMurrey v. Gray ) but the courts have been flexible in deciding what constitutes a “single operation” Conducting operations that do not have the requisite expectation of success will not suffice to interrupt the prescriptive period Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

26 THE LOUISIANA MINERAL LEASE

27 Servitudes vs. Leases (the hybrid institution) Sec. 16: The basic mineral rights that may be created by a landowner are the mineral servitude, the mineral royalty, and the mineral lease…Mineral rights are real rights and are subject either to the prescription of nonuse for ten years or to special rules of law governing the term of their existence. Sec. 18: A mineral right is an incorporeal immovable. It is alienable and heritable. Section 114: (Nature of a Mineral Lease): “A mineral lease is a contract by which the lessee is granted the right to explore for and produce minerals.”  can be created for non-contiguous tracts of land and can be subject to unitization. (therefore, it is a right and a contract). Section 115 (Requirement of a Term): “The interests of a mineral lessee is not subject to the prescription of nonuse but the lease must have a term, except as provided by this article, a lease shall not be continued for a period of 10 years without drilling or mining operations or production, in paying quantities. Section 116: A mineral lease may be granted by a person having an executive interest in the mineral rights on the property leased. Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

28 Implied Covenants in Louisiana Oil and Gas Leases Covenant of Protection Against Drainage: ▫ If the amount of drainage is such that a prudent operator would offset drainage and that such offset would be profitable, then the lessee must do so.  Note: If there is a substantial amount of drainage, but drilling an offset well would not be profitable to the lessee, the lessee may have a duty to seek the creation of a unit. Covenant of Reasonable Development (and Further Exploration): ▫ Article 122 of the Mineral Code states that “a mineral lessee is not under a fiduciary obligation to his lessor, but he is bound to perform the contract in good faith and to develop and operate the property leased as a reasonably prudent operator for the mutual benefit of himself and his lessor.  Note: Pre-Article 122, Louisiana jurisprudence sometimes implied a covenant of further exploration, referring to case law that required a lessee to “test every part” of the leased premises. However, the comments to Article 122 imply that any perceived obligation of further exploration is a part of the reasonable development standard Covenant to Market: ▫ Lessee must use reasonable diligence when marketing the minerals Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

29 Who may convey?

30 Who has authority to hold and convey title: A look at Louisiana entities Louisiana recognizes the following entities as juridical persons:  Corporations – must file Articles of Incorporation and annual reports with the Secretary of State  Limited liability companies – LLCs must file Articles of Organization and annual reports with the Secretary of State  General Partnerships – do not have to file with Secretary of State  Partnerships in commendam – also do not have to file. The common law equivalent for these are limited partnerships.  Registered limited liability partnerships – these must file a special form with the Secretary of State, which transforms a general partnership to having limited liability for all partners Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

31 What to do when dealing with entities? Standard practice: obtain certificates of good standing from the Secretary of State, along with all of the entities’ governing documents and corresponding company resolutions when dealing with companies in a particular real estate transaction. For transactions that have already taken place: instruments filed of record should have the company resolution approving the transaction attached to all such recorded documents, upon which 3 rd parties may rely. If no such resolutions are attached, LA does not provide for presumptions of authority, and the buyer/lessee assumes the risk of presuming such authority. See Tedesco et ux v. Gentry Development Inc. wherein the court held that the doctrine of apparent authority is not applicable to immovable property. Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

32 Trusts in Louisiana – Trusts are not considered juridical entities in LA. Instead trusts are defined as “the relationship resulting from the transfer of title to property to a person to be administered by him as a fiduciary for the benefit of another.” – La. Rev. Stat. 9:1731 Therefore, title to immovable property must be held in the trustee’s name, and not the trust itself. Unless the trust documents provide otherwise, Trustees have the full right to alienate, convey and lease the trust property (thus, you must review the trust documents). Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

33 Mandates and Mandataries  A mandate is “a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal.” – Civ. Code Art  To alienate, acquire, encumber, or lease property, the mandate must expressly grant such authority.  Any mandates for transactions involving immovable property should be recorded with the transaction documents.  Once recorded, the mandate may be relied upon by 3 rd parties until a subsequent modification or revocation is recorded. Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

34 What About Spouses??

35 What about spousal rights in conveyances?  Louisiana has a community property regime, wherein any property acquired during the marriage is presumed to be community property.  When conveying, encumbering or leasing community property, both spouses must sign. Separate property, even if the homestead, does not require both spouse’s signature.  Examples of separate property are gifts, inheritance, and property acquired with the separate funds of a spouse.  Note: Declarations in conveyances stating that the property is the separate property of a spouse, can be relied upon if the other spouse intervenes in the instrument (meaning, the other spouse executes the document, with language acknowledging that the property is separate property). Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

36 Homestead LA’s homestead statute defines homestead as: “A residence occupied by the owner and the land own which the residence is located, including any building, appurtenances located thereon, and any contiguous tracts.” The exemption applies to: Within a Municipality Up to 5 acres of land Outside a Municipality Up to 200 acres of land Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

37 Homestead (con’t) The homestead exemption provides that any homestead is exempt (for up to $35,000 of value in the homestead) from any seizure and sale by a creditor. ▫ This exemption does not apply in certain circumstances (ie: purchase money creditors). Homestead exemptions may be effectively waived if such waiver is executed by the owner and recorded. Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

38 Once conveyed, must a grantee do anything else to protect their interest?

39 Recording in Louisiana: A Race to the Courthouse Article 517 of the Civil Code: “The ownership of an immovable is voluntarily transferred by a contract between the owner and the transferee that purports to transfer the ownership of the immovable. The transfer of ownership takes place between the parties by the effect of the agreement and is not effective against third persons until the contract is filed for registry in the conveyance records of the parish in which the immovable is located ” This language makes Louisiana one of the few pure race jurisdictions Actual or constructive knowledge of an unrecorded instrument is irrelevant NOTE: Recall that a mineral lease, as well as other mineral rights, are real rights in Louisiana; therefore, the recording rules applicable to mineral rights are the same as for land (Mineral Code Art. 16 and 18) Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

40 What must be recorded to protect a grantee’s interests: Article 3338 of the Code: The rights and obligations established or created by the following written instruments are without effect as to a third party unless the instrument is registered by recording it in the appropriate mortgage or conveyance records pursuant to the provisions of the Title: (1) An instrument that transfers an immovable or establishes a real right in or over an immovable (2) The lease of an immovable (3) An option or right of first refusal, or a contract to buy, sell, or lease an immovable or to establish a real right in or over an immovable (4) An instrument that modifies, terminates, or transfers the rights created or evidenced by the instruments described in subparagraphs (1) through (3) of this Article Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

41 Louisiana Public Records Doctrine: Article 3342 of the Civil Code makes a recorded instrument binding in its recorded form on the parties to the instrument with regard to any subsequent third party who may acquire an interest in that immovable; this is the public records doctrine which is essentially a negative doctrine – it does not create positive rights but has the negative effect of denying effectiveness of certain rights unless they are recorded. If another law or the instrument itself makes the recording of an instrument a condition to the creation, extinction, or modifications of rights or obligations, then the act or instrument is not effective against third parties until it is recorded. Recordation only provides notice to third parties as to what the instrument contains, it does not create a presumption that the instrument is valid or genuine ▫ I.E. Louisiana courts have held that where the exercise of a renewal option in an oil and gas lease was unrecorded, the lease was treated beyond its primary term and a third party was not bound by it. NOTE: Recordation has no effect unless the law expressly provides for recordation and is only effective with respect to immovables in the parish where the property is located. Therefore, with respect to third parties and the effectiveness of an instrument, a title examiner must know the proper parish of recordation. Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

42 A Mortgage or a Conveyance? Mortgage RecordsConveyance Records Unless there is a law to the contrary, if the instrument creates or relates to a mortgage or privilege over an immovable, it is recorded in the mortgage records of the parish in which the immovable is located Includes: Mortgages, lien affidavits Credit sales and sales with an assumption of mortgage (recorded in both) All other instruments relating to immovables Includes: Cash sales, acts of exchange, acts of partition Mineral leases and mineral deeds Credit sales and sales with an assumption of mortgage (recorded in both) Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

43 Clerk of Court/Recorder: The effect of recordation arises when an instrument is filed with the Clerk of Court/Recorder of the appropriate parish Upon filing of the instrument, the Clerk of Court will assign a filing number to the instrument and attach his certificate to the instrument with the filing information along with the date and time that the instrument was deposited The Clerk then records the act by photocopying the original instrument and filing it for preservation Finally, the Clerk indexes the instrument by the names of the parties thereto NOTE: Title examiners should be aware of Civil Code Article 3351 which states “An instrument that has been recorded for at least ten years is presumed to have been signed by all persons whose purported signatures are affixed thereto, and, if a judgment, that it was rendered by a court of competent jurisdiction” (Louisiana version of the ancient document rule) Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

44 The Aftermath of a Jazz Funeral * See copyright footnote 8.

45 Probate:  Title immediately vests in a decedent’s heirs or legatees upon the death of the decedent.  However, until probate is opened, the estate is held in limbo.  Louisiana has no alternative methods of transferring immovable property from a decedent to his or her heirs/legatees  must go through probate process if immovable property is involved. o A title examiner cannot rely on any filed affidavits of heirship, a will probated as muniment of title, or a filed will. This does not put heirs in possession! o The requirement to probate includes anything related to immovable property, called incorporeal immovable property (ie: mineral rights). Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

46 Intestacy Decedent’s Separate Property is inherited in the following order of priority: 1.Descendants 2.Parents and siblings (if there are surviving parents and siblings, the siblings inherit with a usufruct in favor of the parents 3.Surviving Spouse 4.More remote ascendants (grandparents) 5.More remote collaterals (nieces, nephews, etc.) Decedent’s interest in Community Property is inherited as follows: 1.To his or her descendants, with a usufruct in favor of the surviving spouse (known as the “890 usufruct”) 2.If no descendants, then to the surviving spouse entirely. NOTE: The “890 usufruct” exists until the surviving spouse remarries or dies; If a usufruct is for the surviving spouse, the usufructuary gets use of the landowner’s mineral rights, whether or not there were open mines at the time the usufruct was created (La. Rev. Stat. 31:190b) Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

47 L AGNIAPPE Roadways: Prior to August 1, 1956, when evaluating instruments of title, Louisiana courts referred to the roadways as either mere servitudes or vested full ownership of the road in the transferee (NOTE: If the roadway was considered a servitude, then the roadbed would still be owned by the grantor) When determining whether the instrument conveyed a servitude or full ownership the court applied a 7 part test which included factors such as (i) the consideration recited in the deed (ii) the metes and bounds description of the right-of-way and (iii) payment of taxes After 1956, the legislature passed LA. REV. STAT. ANN. §9:2971 which states that conveyances of land bounded by a road includes ownership to the middle of the roadbed if the grantor had full fee title of the land under the road. Duhig: Louisiana follows the same principles of the Duhig Rule in Texas. This was established by a Louisiana case in 1978 known as Dillon v. Morgan. Copyright © by the Kilburn Law Firm, PLLC All rights reserved.

48 FINIS “I have said that Texas is a state of mind, but I think it is more than that. It is a mystique closely approximating a religion. Rich, Poor, Panhandle, Gulf, City, Country, Texas is an obsession, the proper study, and the passionate possession of all Texans.” – John Steinbeck, Travels with Charlie: In Search of America “It has been said that a Scotchman has not seen the world until he has seen Edinburgh; and I think that I may say that an American has not seen the United States until he has seen Mardi Gras in New Orleans.” – Mark Twain, 1859 Copyright © by the Kilburn Law Firm, PLLC All rights reserved. No part of this presentation may be used or reproduced in any manner whatsoever without written permission from the Kilburn Law Firm. For information please address Kilburn Law Firm, PLLC, 1001 W. Loop South Freeway, Suite 400, Houston, Texas * See copyright footnote 9.

49 1.http://images.google.com/imgres?q=cowboy&hl=zh- TW&gbv=2&tbm=isch&tbnid=5cEXs2UU_Lhq3M:&imgrefurl=http://en.wikipedia.org/wiki/Cowboy&docid=lgF0JmtRqzQjQM&imgurl=http://uplo ad.wikimedia.org/wikipedia/commons/thumb/7/73/The_Cow_Boy_1888.jpg/220px-The_Cow_Boy_1888.jpg&w=220&h=161&ei=6UHjT- vEA6nW2gWg35jJCw&zoom=1&biw=1317&bih=638 2.http://images.google.com/imgres?q=cowboy&hl=zh- TW&gbv=2&tbm=isch&tbnid=5cEXs2UU_Lhq3M:&imgrefurl=http://en.wikipedia.org/wiki/Cowboy&docid=lgF0JmtRqzQjQM&imgurl=http://uplo ad.wikimedia.org/wikipedia/commons/thumb/7/73/The_Cow_Boy_1888.jpg/220px-The_Cow_Boy_1888.jpg&w=220&h=161&ei=6UHjT- vEA6nW2gWg35jJCw&zoom=1&biw=1317&bih=638 3.http://images.google.com/imgres?q=texas+and+louisiana&hl=zh-TW&gbv=2&tbm=isch&tbnid=Jnl1hh27v73w- M:&imgrefurl=http://baskins.com/locations/liberty&docid=eKkqNIQXFePCaM&imgurl=http://baskins.com/media/wysiwyg/pages/locations/shape- of-texas- louisiana.png&w=482&h=350&ei=yEHjT76qLYbm2AXO4MDMCw&zoom=1&iact=hc&vpx=970&vpy=338&dur=639&hovh=191&hovw=264&tx=1 35&ty=156&sig= &page=2&tbnh=138&tbnw=217&start=18&ndsp=21&ved=1t:429,r:15,s:18,i:174&biw=1317&bih=638 4.http://images.google.com/imgres?q=hurricane&hl=zh- TW&gbv=2&tbm=isch&tbnid=IzVw7n7fcGRcYM:&imgrefurl=http://goosehead.com/hurricane- preparation%2B&docid=yl6h5tpDyVh5oM&imgurl=http://goosehead.com/wp-content/uploads/2012/06/Hurricane- Katrina.jpg&w=1920&h=1200&ei=HULjT6jrAqWQ2AWwwdTVCw&zoom=1&biw=1317&bih=638 5.http://images.google.com/imgres?q=hurricane+drink&hl=zh-TW&gbv=2&tbm=isch&tbnid=PZ9Jz231- gbioM:&imgrefurl=http://www.safetysign.com/blog/%3Fp%3D303&docid=PgSoz8vDbcUxzM&imgurl=http://www.safetysign.com/blog/wp- content/uploads/2011/08/Hurricane-Cocktail.jpg&w=300&h=250&ei=NELjT5KwKqGO2AXegZm4Cw&zoom=1&biw=1317&bih=638 6.http://images.google.com/imgres?q=hand+grenade&start=274&hl=zh- TW&gbv=2&tbm=isch&tbnid=6bVFKmMQKVHn3M:&imgrefurl=http://www.123rf.com/photo_ _hand-grenade-in-a-man-s-hand-isolated- over-a-white- background.html&docid=2XNY1V8rmn1F8M&imgurl=http://us.123rf.com/400wm/400/400/tritooth/tritooth0910/tritooth / hand- grenade-in-a-man-s-hand-isolated-over-a-white-background.jpg&w=1200&h=804&ei=X0LjT-2gFca22gW69cG3Cw&zoom=1&biw=1317&bih=638 7.http://images.google.com/imgres?q=hand+grenade+new+orleans&hl=zh- TW&gbv=2&tbm=isch&tbnid=UJjAL9nJgRnJZM:&imgrefurl=http://blog.travelpod.com/travel-photo/cafe_travel/4/ /the-hand-grenade- cocktail-for-one-nephew.jpg/tpod.html&docid=Jw47zYGTArue6M&imgurl=http://images.travelpod.com/users/cafe_travel/ the-hand- grenade-cocktail-for-one-nephew.jpg&w=550&h=733&ei=8kLjT7uLO4XB2QXcg4iqCw&zoom=1&biw=1317&bih=638 8.http://images.google.com/imgres?q=jazz+funeral&hl=zh- TW&gbv=2&tbm=isch&tbnid=V3Kg4Y68hFf8eM:&imgrefurl=http://www.hurricanebrassband.nl/Hoofdsite%2520the%2520music%2520of%2520t he%2520brass%2520bands.htm&docid=ESzZLdGvs- SrSM&imgurl=http://www.hurricanebrassband.nl/images/JazzFuneral1.jpg&w=452&h=310&ei=VkHjT6qfJ- TU2AWtrJm6Cw&zoom=1&biw=1317&bih=638 9.http://www.google.com/imgres?q=fluer+de+lis,+si3702d&um=1&hl=en&sa=N&rlz=1C1TSNF_enUS426&biw=1366&bih=667&tbm=isch&tbnid=3 MFTW6PU9yzaYM:&imgrefurl=http://www.camelotcraft.com.au/index.php%3Fmain_page%3Dproduct_info%26cPath%3D1_437_441%26products _id%3D4605&docid=OWGbuwlT6IJCCM&imgurl=http://camelotcraft.com.au/images/Fluer%252520de%252520lis%252520si3702d.jpg&w=340&h =336&ei=cy3nT4iIJOyA2QXmpoXaCQ&zoom=1&iact=hc&vpx=173&vpy=176&dur=20&hovh=223&hovw=226&tx=151&ty=120&sig= &page=1&tbnh=129&tbnw=131&start=0&ndsp=24&ved=1t:429,r:0,s:0,i:76 Copyright Information for Images:


Download ppt "LAISSEZ LE BON TEMPS ROULEZ IN FEE SIMPLE ABSOLUTE?? A Comparison of Texas and Louisiana By: Sarah Chaudhry and Tiffany Melchers 06/21/2012 Copyright ©"

Similar presentations


Ads by Google