
    Alice B. HEARD v. Sidney J. ROZAS.
    No. 86.
    Court of Appeal of Louisiana. Third Circuit.
    Nov. 17, 1960.
    Rehearing Denied Dec. 14, 1960.
    
      Liskow & Bond, by George W. Liskow, Lake Charles, Davidson, Meaux, Onebane & Donohoe, by Lawrence E. Donohoe, Jr., Lafayette, for plaintiff-appellant.
    Lewis & Lewis,' by Seth Lewis, Jr., Ope-lousas, for defendant-appellee.
    Before TATE, SAVOY and CULPEP-PER, JJ-
   SAVOY, Judge.

This matter is before the Court on appeal by the plaintiff from a judgment of the district court maintaining an exception of no cause of action filed by the defendant.

Plaintiff filed suit for a declaratory •judgment under the provisions of LSA-R.S. 13:4231 et seq. For a cause of action plaintiff alleged that on March 30, 1949, Mrs. Alice B. Heard (then Mrs. Alice B. Rozas) made a donation to the defendant of a 25 per cent interest in the minerals lying under certain tracts of land, particularly that 300-,acre tract described in Paragraph 1 of plaintiff’s petition. In October of 1950 the plaintiff executed a correction of the original donation which did not recreate the servitude but only clarified the interest 'which was donated. (The 1950 instrument is not an issue in the case.) On June 16, 1958, plaintiff and defendant entered into an act of settlement and partition of all of their property in connection with an action for separation from bed and board, a certified copy of which settlement is a part of the record. The allegations of the petition which, under- the exception must be taken as true, aver that the 300-acre tract of land is ' noncontiguous to the other tracts and is therefore burdened with a separate servitude from the servitude on the other property described in the instrument. It is further alleged that no exploration for or production of minerals has been made on the 300 acre tract from March 30, 1949, until the time of filing suit.

To this suit plaintiff filed among other pleadings an exception of no cause of action.

The trial judge in his reasons for judgment made certain observations which are not found in the record of this case.

The rule that all allegations in a petition or complaint setting forth facts, and not mere conclusions of the pleader, are to be accepted as true for the purpose of determining whether a cause of action is disclosed, is too well settled to need citation of authority to support it.

Considering the petition as a whole, the Court is of the opinion that it discloses a cause of action.

For the reasons assigned, the judgment of the district court is reversed and set aside, and it is now ordered that the exception of no cause of action be and the same is hereby overruled.

It is further ordered that the case be remanded to the 27th Judicial District Court for the Parish of St. Landry and reinstated on the docket to be proceeded with in due course as prescribed by law.

The costs of the appeal to the Court of Appeal and the costs incurred in this Court are to be paid by the defendant appellee.

Judgment reversed and remanded.  