United States v. Little Lake Misere Land Company – Oral Argument – January 15, 1973

Media for United States v. Little Lake Misere Land Company

Audio Transcription for Oral Argument – January 16, 1973 in United States v. Little Lake Misere Land Company

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Warren E. Burger:

We’ll hear arguments next in 71-1459, United States against Little Lake Land Company.

Mr. Reynolds, you may proceed.

William Bradford Reynolds:

Mr. Chief Justice, may it please the Court.

This case is here on writ of certiorari to the United States Court of Appeals for the Fifth Circuit.

The action was instituted by the United States to acquire its title to lands in the State of Louisiana which it had acquired some years ago by deed and condemnation for use as a wildlife refuge.

The relevant events leading to commencement of this lawsuit can be briefly summarized.

In 1916, the United States and Great Britain ratified a treaty for the purpose of protecting the many species of birds that customarily migrate at different seasons of the year between Canada and United States.

Among the several protections enumerated in the treaty was the establishment of wildlife refuges both here and in Canada.

In 1929, Congress in furtherance of a national program for the protection of wildlife enacted the Migratory Bird Conservation Act, implementing in part the treaty between this country and Great Britain.

The Act which is set forth in our brief at pages 19 to 23 authorizes the Secretary of the Interior among other things to acquire lands deemed valuable for wildlife refuges upon attaining the consent of the State in which the acreage is located.

Pursuant to this authority, the United States in 1937 entered in the contract negotiations with Little Lake Misere Land Company for the purchase of some 10,048 acres of undeveloped marshland located in the State of Louisiana to form a park of the Lacassine Wildlife Refuge.

On July 23, 1937, the United States acquired this acreage from Lake Misere by deed of purchase.

The deed contained a Reservation Clause which is set out in the appendix of page 25, pertaining to “all the oil, gas, sulphur, and other minerals in, on, and, under the land.”

By its terms, it reserved to Lake Misere, and again I quote, “the right of investigating, exploring, prospecting, drilling, and mining for and producing the said oil, gas, sulphur, and other minerals” for a period of ten years from the date of the deed.

It further provided that at the end of the 10-year period, the company, if it was then conducting drilling operations or actually producing minerals could continue to do so until it seized drilling for 60 consecutive days or until its mineral production seized.

The United States and Lake Misere agreed in addition that if Lake Misere was not conducting mining operations on the land at the end of the 10-year period of reservation, “the right to mine, produce and market the said oil, gas, sulphur, and other minerals shall terminate and the complete fee title to said land shall thereby become vested in the United States.”

The United States agreed to pay an excess of $40,000 for the acreage.

Approximately two years later, it obtained for the refuge an additional 2,574 acres of marshlands from Lake Misere in the same area by a condemnation judgment entered in 1939.

The United States paid an excess of $12,000 compensation.

The condemnation judgment contained a 10-year reservation provision that was in all material respects, identical to the one that the parties have included in the earlier deed of purchase.

Both conveyances also provided that the United States would receive from Lake Misere royalty payments from minerals removed from the Government lands during the period of reservation.

Now, at the time that these conveyances were negotiated and entered into, it is agreed that the laws of Louisiana recognized mineral reservation of the sort just described as providing for what was called a period of contractual prescription.

The word prescription refers essentially to non-use or inactivity and has the legal effect of cutting off an existing interest or servitude for the failure to exercise it.

The servitude in essence lapses for non-use or in more technical terms, terminates by force of prescription.

Under the Louisiana Civil Code, the period of non-use cannot extend beyond 10 years but any period up to and including 10 years may be designated by contract.

In 1937 and 1939, when these conveyances were completed, there was no restriction under Louisiana law on the right of the United States or anyone else to agree to a period of contractual prescription.

A mineral deed, a mineral reservation and a deed of purchase that was by its terms to terminate in time because of non-use was as enforceable under Louisiana law by the United States if no mining had occurred as by any private party to a land contract and that was the clear understanding of the United States and Lake Misere at the time that they agreed to the land transactions involved here and bargained for the reservation of a mineral servitude for a period of 10 years.

Potter Stewart:

Would you just state again what the Louisiana law generally was at that time by?

There’s a reservation and it’s a reservation of a not much more than easement I guess, is it?

William Bradford Reynolds:

It is —

Potter Stewart:

And the right to–

William Bradford Reynolds:

It is an easement or servitude.

It is a right to go on the property.

Potter Stewart:

And if there exists a reservation period, that’s good.

That is extinguished by non-use after the passage of 10 years.

William Bradford Reynolds:

After — by the terms of the conveyance here after —

Potter Stewart:

No, no.

I am just talking about Louisiana law.

William Bradford Reynolds:

After that, it could not extend beyond 10 years of non-use.

A statutory prescription under Louisiana law would cut off the right to go on the land at the end of 10 years of non-use.

Potter Stewart:

Now, could the parties by contract extend that period beyond ten years?

William Bradford Reynolds:

The parties cannot contract for a period longer than 10 years of non-use.

They can contract for any period up to and including 10 years.

Potter Stewart:

They could contract the period but they couldn’t extend it.

William Bradford Reynolds:

That’s correct.

Potter Stewart:

Is that it?

William Bradford Reynolds:

That’s it.

But they could not extend the period of non-use.

If there was use during that 10-year period, —

Potter Stewart:

Right.

William Bradford Reynolds:

— then you would have an additional 10 years from the time of use.

Potter Stewart:

And begins to rise again from each use?

William Bradford Reynolds:

That’s correct under Louisiana law.

[Voice Overlap] But they cannot contract for a period longer than a 10-year period of non-use under the law.

Potter Stewart:

And that was the Louisiana law at the time of these conveyances.

William Bradford Reynolds:

[Voice Overlap] — and it was the understanding of the parties at the time that they entered into these conveyances and negotiated them.

Now, thereafter, the State of Louisiana enacted new legislation with respect to prescriptive rights.

It was applicable not to all land acquisitions in the State but only to those acquisitions made by the United States and this new legislation eliminated for the most part the termination of mineral servitudes by force of prescription under conveyances of the United States.

The statute, Louisiana Act 315, was passed in 1940.

It set forth in relevant part in our main brief at pages 3 and 4 and it reads as follows, “When land is acquired by conventional deed or contract, condemnation or expropriation proceedings by the United States of America or any of its subdivisions or agencies, from any person, firm or corporation and by the act of acquisition, order or judgment, oil, gas, or other minerals or royalties are reserved.

William Bradford Reynolds:

The rights so reserved shall be imprescriptible.”

William H. Rehnquist:

Mr. Reynolds, was the effect of this Act in combination with other Louisiana statutes to treat the United States completely differently from any other entity in this respect?

William Bradford Reynolds:

Under this statute, Your Honor, that’s correct.

There was an earlier statute in 1938 where Louisiana treated its own State agencies with respect to statutory prescription in the same manner as the United States and said that the prescriptive period shall not run with respect to the statutory prescription provisions of the statute, of Louisiana law.

But under this statute, which the Louisiana Supreme Court construed in the Leiter Minerals case to pertain not only to statutory prescription but to contractual prescription, that is the contracted period of non-use.

This covered only the United States and was directed only at the United States.

Potter Stewart:

It was a very interesting reason for it that it’s spelled out somewhere here on these briefs.

William Bradford Reynolds:

Well, the reason, one of the reasons for it was to make it easier for the United States to acquire lands in Louisiana by being able to offer a perpetual servitude to their vendors if they —

Potter Stewart:

Because of the very eye of the Louisiana law, it was thought that before that amendment it was difficult for the United States to acquire land for this kind of purpose.

William Bradford Reynolds:

That’s — that was one of the reasons for it.

Warren E. Burger:

Well, is it your position that that statute can speak only as of the future after 1940?

William Bradford Reynolds:

That’s our position, Your Honor.

That it can only be given prospective application and cannot be replied retroactively to cut off existing interest in the minerals that the United States acquired prior to the enactment of the legislation.

The Louisiana Court in construing the statute, as I indicated, declared that it was applicable both to statutory and contractual prescription but there is one exception with respect to contractual prescription.

If the contract specified as servitude for a term of definite duration as opposed to one of indefinite or uncertain duration, then the Act was inapplicable.

But in all other respects, it was held to be applicable and the Louisiana Court said that it could be applied retroactively with respect to all passed acquisitions of the United States where the prescriptive period had not run as of the date of enactment.

And this litigation arose because of Lake Misere’s claim that the agreed terms of the reservation in the deed of purchase and the condemnation judgment were rendered inoperative by the subsequently enacted imprescriptible legislation.

There’s no dispute here that Lake Misere was not conducting any mining operations on the bird refuge at the end of the 10-year period and that it had not either before or after the agreed cut off dates conducted any such mining activity.

The Federal District Court felt itself bound by the earlier two-to-one decision of the Fifth Circuit in the Leiter Minerals case and held Louisiana 315 of 1940 to be applicable to the mineral reservations in this earlier 1937 and 1939 conveyances.

The Court of Appeals affirmed on the authority of Leiter Minerals.

Initially, we disagree with the Court of Appeals that the mineral servitudes in these conveyances were of indefinite duration so as to be imprescriptible under Louisiana Act 315 even assuming that Act’s application here.

Our reasons are discussed in detail in our main brief on that point.

But if the Fifth Circuit was correct in that respect, an application of Louisiana Act 315 to cut off the prescriptive rights of the United States that have been bargained for, validly agreed to, and purchased prior to enactment of the legislation would we submit violates several provisions of the Constitution.

It would abrogate expressed terms of the reservation in these conveyances as they were understood by the parties at the time that the transaction were entered into and thus would impair, the obligations of contracts in violation of Article 1, Section 10 of the Constitution.

More particularly and with specific reference to the fact that we deal here with land acquisitions by the United States, an application of 315 — Act 315, would contravene the Property Clause of the Constitution which vest the power in Congress to dispose of and regulate property belonging to the United States.

Since the Landmark decision in McCulloch versus Maryland, it’s been a basic principle of our constitutional jurisprudence that the affirmative grants of legislative power in the Constitution are to be broadly construed.

And consistently, this Court has held that the Article 4 power of Congress with respect to the regulation and disposition of federal property is exclusive and unlimited.

It does works for Congress and Congress alone to legislate with respect to the disposition of the valuable mineral interest that the United States had acquired under these conveyances.

Potter Stewart:

What was the point then of the decision of this Court in Leiter Minerals that told the Federal Courts to abstain, refrain until they got a–until it’s clear in the Indiana and the Louisiana Supreme Court what the Louisiana law was.

The Louisiana law was wholly irrelevant in any circumstance, what was the whole point of Mr. Justice Frankfurter’s opinion for the Court in Leiter Minerals which was —

William Bradford Reynolds:

Well, I think the whole point was to determine.

Potter Stewart:

I must say it’s quite [Voice Overlap] that I never know the answer to maybe.

William Bradford Reynolds:

Well, I don’t presume to know the answer but I would imagine that the point would be to determine what the Louisiana, the highest court in Louisiana, would put construction.

It would put on the statute whether it would, for example say that the statute applies merely to statutory prescription or apply solely prospectively in which case no constitutional questions such as we have presented here would need to be decided by the Court.

The issues in Leiter Minerals were the same as the issues raised here and I believe that they —

Potter Stewart:

And if federal law is going to be controlling, what possible relevance could the Louisiana law have had and therefore what possible purpose could the Court’s decision in Leiter Minerals have been designed to perform?

William Bradford Reynolds:

Your Honor, I think that the Court is reluctant to reach out and decide constitutional questions that aren’t —

Potter Stewart:

No, no this is before you get to constitutional questions; you just say that federal law applies.

William Bradford Reynolds:

I think —

Potter Stewart:

And if then you tell us that if we agree with you on that, we don’t have to reach any constitutional questions.

But if that is true, then what was the point of the Court’s opinion in Leiter Minerals?

William Bradford Reynolds:

I don’t know, Your Honor.

I don’t know that the Court had gone — has considered the case yet as fully as to determine what the various considerations —

Potter Stewart:

That was briefed and argued, I suppose, was it not?

I was — just as before I was on the Court but I’d assume that it was full-dress opinion.

William Bradford Reynolds:

Well, I just — I think the federal law controls.

I don’t know why it was sent back.

It wasn’t decided which law controls, was it?

William Bradford Reynolds:

No, it was not decided which law controls.

That’s the answer of the heart of the argument in this case.

Warren E. Burger:

Is it conceivable —

If it were so clear, the State wouldn’t be here.

Warren E. Burger:

Is it conceivable Mr. Reynolds that the Court sent this back because of some of the idiosyncrasies of the Louisiana law that might not be true as to the other 49 States?

William Bradford Reynolds:

Well, I’m sure that had something to do with them and I think that if they have gotten an interpretation from the Louisiana Court, that would’ve applied, the statute only prospectively and what — or what it said it applied only to statutory prescription then you would not even have the issue that we have here with respect to whether federal law or state law.

Warren E. Burger:

No, federal question at all.

It got no statutory question.

William Bradford Reynolds:

And I believe it was sent back to determine what the construction would be by the Louisiana Court.

Mr. Reynolds, what if the United States owns some bonds of the State of Louisiana.

Do you say that the rights under those bonds are determined strictly by federal law and that even though Louisiana were to make particular interpretation that apply to all bondholders, the United States wouldn’t be bound by it?

William Bradford Reynolds:

Well, Your Honor, I think we’re dealing here with a contract that the United States entered into for the acquisition of property and I think that the —

A bond is a contract too, isn’t it?

William Bradford Reynolds:

Well, I — if you go down a lot turns, if the United States goes down into Louisiana and it says that it agrees that it’s going to rely on Louisiana law with respect to determinations of these sorts then I think that the Louisiana law might well be applicable.

But what happened in this case is we contracted Louisiana and gave a reservation which under the existing law in Louisiana only gave a servitude for a period of time, and that contract did not contemplate the change in the Louisiana law to cut off the rights that we had agreed to.

I think that’s a different situation.

What we got here was a future interest in the minerals beneath the surface of the property and that future interest is no less property belonging to the United States under Article 4 than was the yet to be produced to electric energy and as one of the Tennessee Valley Authority which also is to be obtained in the future from lands and in that case property of the United States, or water owned by the United States.

Mr. Reynolds —

William Bradford Reynolds:

But — Yes, Your Honor.

William J. Brennan, Jr.:

On this Property Clause argument that you are making, the respondent takes the position as I understand it that the reversionary interest here is not a property right at all but is characterized as a hope or at most an expectancy under Louisiana law.

That would not be true in my State of Virginia.

A reservation of mineral rights is an interest in property but does the Government take issue with respondent as to what Louisiana law is in this respect?

William Bradford Reynolds:

Well, Your Honor, I think that under Louisiana law, all that the reservation gives is a servitude to go upon the Government’s property to explore for and extract the minerals.

The minerals themselves are part of the realty and therefore the United States thus have more than a hope for expectancy as a real interest at the time that it acquires that realty.

But I think that whatever the technical characterization of this interest, I think that under general federal law principles that it’s a future interest that certainly is a vested interest that the Government is entitled to at the termination of the 10-year period.

And therefore, it is a property interest belonging to the United States.

What Louisiana has done by its subsequently inactive legislation is transfer that future interest to somebody else.

It’s dispose of or made a disposition of that federal property of the Government.

The Government under the Mineral Leasing Act for Acquired Lands can lease a future interest in mineral deposits under its lands and the disposition of that future interest in mineral deposits is now by the State’s statute if applied retroactively taken away from the Government and we don’t think that that is a — w e think whatever the technical characterization under Louisiana law, that we have a property interest here of the Government’s that is only for disposition by the Government under Article 4.

I think, in addition to that, that the reservation in the conveyances that these parties agreed to, contemplated that the Government would have this interest in the future and that the 10-year mineral servitude would be prescriptible.

Under the Contracts Clause, we think that what a retroactive application of Louisiana Act 315 does is abrogate the expressed terms of the reservation and that is an impairment of the obligation of contracts.

The United States acquired — the United States agreed that Lake Misere could retain the right for a period of 10 years to come on that land and explore for and extract minerals but Lake Misere had an obligation under the reservations to be actively engaged in mining those lands at the end of the 10-year period or its right, its servitude would not be renewed.

It would terminate and it could no longer come on the land.

At that time, whatever interest it had reverted to the United States.

Louisiana Act 315 releases Lake Misere this obligation to be actively engaged in mining the lands at the end of the 10-year period and it extends indefinitely the servitude.

Thereby depriving the United States of its future interest in the minerals that have been bargained for, validly agreed to under the existing law, and purchased by the United States prior to enactment of the legislation.

And we don’t believe any of the alleged purposes for this Louisiana legislation justify such an impairment for the obligation of contracts.

Well, you — just to go back, would you agree that the interest of the United States acquired under the deed originally, the reservation was to be measured by Louisiana law?

William Bradford Reynolds:

The reservation was to be?

Yes.

William Bradford Reynolds:

I’m not sure I understand your question.

How did the United States get this property?

William Bradford Reynolds:

It acquired it by a deed of purchase and by condemnation.

With the reservation in it for 10 years of the minerals?

William Bradford Reynolds:

That’s correct.

Now, the interest in the properties of the United States acquired at that time, under that deed was to be measured by the Louisiana law.

William Bradford Reynolds:

Well, I think that that’s the nature of the interest.

That’s right.

That the term and reversionary right, I don’t think that the —

If under Louisiana law at that time, future interest were subject to modification under State law, the United States interest, future interest was subject to the same State power, I suppose?

William Bradford Reynolds:

Well, Your Honor, future interest weren’t subject to modification under the Louisiana law at that time.

This is different than if we had in contract to be bound by the statutory prescription period. I think in that situation, we then would’ve agreed to be bound by whatever changes there are in the prescription, statutory prescription law of the State of Louisiana.

If you’d agree generally to the [Voice Overlap].

William Bradford Reynolds:

That’s correct.

But here, we entered into a contract for specific terms.

We didn’t agree to any modification.

We said that the reservation would be for this period and if there’s no mining at the end of this period, it would terminate and the title would vest in the United States.

And so you say that what you acquired is this property interest?

However, it’s determined that under Louisiana law, that it couldn’t be modified or taken away except in pursuant to federal law?

William Bradford Reynolds:

That’s correct.

You mean federal law governs a disposition of —

William Bradford Reynolds:

That’s correct.

— the United States property clause?

William Bradford Reynolds:

Under the property clause.

I would like to save the rest of my time for rebuttal.

Warren E. Burger:

Very well.

Mr. Lewis.

Austin W. Lewis:

Chief Justice, may the Court please.

I think that this case is somewhat more complicated than the average one because I don’t believe the Government and respondents are together on what issues are before the Court here today.

We consider on the issue of question that there are two and only two issues before the Court.

One is, do these servitudes involved here, these mineral reservations, do they fit the definition established by the Louisiana Supreme Court of a case of contractual prescription, so as to make effect to them Act 315 of 1940?

That’s question one.

Austin W. Lewis:

Then if they do in the Act did so applied to them, then Mr. Chief Justice, I think, there is a reason to be here before you today.

As so applied, do they violate any provision of the United States Constitution?

We think that those are the only two issues before the Court.

And I think to clarify that we should go back and get into more detail about the history of the Leiter Minerals litigation.

In 1957, the case was before the Court.

A majority of the Court was Justice Douglas dissenting considered the Act 315 in 1940 and said expressly that before we rule on the Constitution at nullity of that Act, they sent it back it to the State Court, got an opinion on what Act was passed, what’s its effect and is it constitutional under state law.

Warren E. Burger:

Could that result conceivably have disposed of the matter without any problems of federal law coming in?

Austin W. Lewis:

Well, Your Honor, I can see no reason at all to have sent this case back to one meritoriously back to the Courts and it got up to the Court of Appeals and was compromised into that of Leiter Minerals.

Had the Court at that time, taken counsel’s argument and said that federal law and not the Louisiana law should apply this.

It could have been disposed of at that hearing and then nothing else to do.

Now, Justice Douglas in rather picturesque language in his dissent in that case suggested that the Court was beating the devil around the bush by not going ahead and deciding it.

And he said that as I interpret his dissent not on the question of whether state law or federal law should be applied but that the Court was counting to apply either one of them without sending it back.

Having just taken the case away from the state court to begin with, and if I may borrow Justice Douglas’ language, I would respectfully suggest that would beat the devil around the bush some seven times since that time if as a result of this hearing today state law is going to be ignored and federal law is going to be applied.

There have been five, I believe, bigger decisions in the Leiter case and two in this all based on the applicability of the statute.

Warren E. Burger:

But what about applying state law as it was in 1939, 1937 and 1939?

Austin W. Lewis:

Your Honor, I would get to that at the moment but I’ll answer you briefly now.

The statute has been construed by the Louisiana Supreme Court in two occasions to be retrospective in effect and to be constitutional as so applied.

So, if we are going to take half of Louisiana law, I think we have to take the other half too then testing it only against the provision of the United States Constitution which I’ll deal with later.

But if the Louisiana law is the guiding law and I feel so strong it is, then part of that law is that this is a remedial right only, same as the cause of action and that it can be lengthened or shortened.

It has been done both the Louisiana Court.

It has been shortened as well lengthened and upheld and both in doing that and upheld as a retrospective law.

Now, the suggestion of the Solicitor General that some federal law should be applied here, leaving out Leiter and leaving out cases we’ve cited in our brief, United States versus Fox, United States versus Yazell, a more recent case, holding it where isolated land transactions were involved.

The law of the situs State does apply to the exclusion of any federal law.

But I asked myself during the time of the history of this case, if the Court pleases, if federal law has to be applied, what federal law?

Here we have a complete similar concept we’re dealing with here.

That mineral reservation procured the Louisiana and not true with any other 49 states.

So, where would we find that federal law?

In its reply brief which I just received over the weekend, the Government attempts to answer that on page 11 and that suggests that have no difficulty in fashioning a federal common law to apply in these circumstances and then admittedly citing Thompson on Real Property and citing the Common Law Approach that the State version is always the vested interest.

For my civil law advantage, if the Court pleases, I read that with the sense of almost far.

It’s just completely foreign to our concept.

Austin W. Lewis:

Our Courts has squarely held that this right or expectancy to obtain a reversion of these minerals is not on State at all.

It’s not a property interest.

It can even be solved and therefore the Courts have held that you can validly cut across the limitation period or prescriptive period as running against that servitude and that expectancy at the same time.

Now, one mentioned by Mr. Reynolds in his argument, their brief suggests that the Migratory Bird Act has some legal significance in this case to assist in the application of federal law and to bring into place some of the constitutional issues that were raised.

I believe in the last reply brief, they’ve already receded from that but we submit that the statute did just the obsolete.

While we concede as some of the attorneys in the case have precedingly did, that Congress could have preempted this field, just a mere casual reading and that statute shows that it did not.

It specifically preserved the jurisdiction rights of the State and the statute itself.

Mr. Lewis, you said that this interest, whatever it may be cannot be sole, is that —

Austin W. Lewis:

[Voice Overlap]

Is that according to the Louisiana statute?

Austin W. Lewis:

No, sir.

Louisiana decision construe on that.

Louisiana Supreme Court decisions.

Austin W. Lewis:

The two Supreme Court decision right on that cause.

And the way, it’s regardless to what the contract says or you just can’t sell it, of course you can’t separate it?

Austin W. Lewis:

It’s just a mere hope or expectancy that taxes to the land and it follows the land.

Potter Stewart:

Now, what are you telling right now, the reversionary —

Austin W. Lewis:

The reversionary rights, yes sir.

Potter Stewart:

And in this case, specifically in the expectancy of the Government that by non-use the mineral right would be extinguished, that’s what are you talking about, that expectancy?

Austin W. Lewis:

No, sir.

The hope of getting the minerals back, yes, in other words if in five years —

Potter Stewart:

The Government’s expectancy in this case?

Austin W. Lewis:

Yes.

Potter Stewart:

Is that what you’re talking about?

Austin W. Lewis:

I sold the property but didn’t reserve the minerals.

Potter Stewart:

Right.

Austin W. Lewis:

Now —

Potter Stewart:

Are you talking about my expectancy?

Austin W. Lewis:

Yes, if you could not sell your hope of getting these minerals back, Mr. Justice.

Potter Stewart:

So, you’re talking about the —

Austin W. Lewis:

The expectancy rather than the mineral reserves.

Potter Stewart:

But that is expectancy.

Austin W. Lewis:

Right.

You can of course sell the servitude freely.

Warren E. Burger:

After the lapse of the 10 years, then you say they would’ve vested. Of course, the United States Government wanting to keep it for birds but granted leases to oil exploration companies, they could do that?

Austin W. Lewis:

That’s true.

If they got the mineral with the land, yes sir, and it’s free to be done out there.

Warren E. Burger:

So that for some purposes, the Louisiana law does recognize that kind of a radius mistake?

Austin W. Lewis:

Well, Your Honor, the matter is complicated only to this extent.

Our Courts have squarely held that this property interest is not a property interest, this reversionary right.

It held that it’s a mere hope or expectancy and it’s subject to retrospective deed.

Potter Stewart:

Again, we’re talking about the possibility of the mineral rights being extinguished by prescription, that’s what we’re talking about?

Austin W. Lewis:

Yes, Your Honor.

Now, I’ll return to that — well, let me, the Fifth Circuit Court in the United States versus Nebo Oil Company probably said this is better than I can say it and I quote, “We conclude that this so called reversionary interest is nothing more than a mere expectancy or hope based upon an anticipated continuous without change with the applicable laws of prescription and cannot be regarded as a vested right protected by the Constitution.”

Warren E. Burger:

We’ll pick up there in the morning, Mr. Lewis.

Austin W. Lewis:

Thank you.