Rose v. Tennessee Gas Pipeline Co.

• Decision Date: 20 November 2007
• Docket Number: No. 06-31119.,06-31119.
• Citation: 508 F.3d 773
• Parties: Ann Lynne Mirandona ROSE, Plaintiff-Appellant, v. TENNESSEE GAS PIPELINE COMPANY, formerly known as Tennessee Gas Transmission Company, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

508 F.3d 773

Ann Lynne Mirandona ROSE, Plaintiff-Appellant, v. TENNESSEE GAS PIPELINE COMPANY, formerly known as Tennessee Gas Transmission Company, Defendant-Appellee.

No. 06-31119.

United States Court of Appeals, Fifth Circuit.

November 20, 2007.

Stephen B. Murray, Arthur Mahony Murray, Jessica Wittmer Hayes (argued), Murray Law Firm, New Orleans, LA, for Plaintiff-Appellant.

Grady S. Hurley (argued), Jean-Paul Abadie Escudier, Jones Walker, New Orleans, LA, for Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before WIENER, DeMOSS, and PRADO, Circuit Judges.

WIENER, Circuit Judge:

Plaintiff-Appellant Ann Lynne Mirandona Rose, as joint owner of an undivided interest in property across which Defendant-Appellee Tennessee Gas Pipeline Company ("TGP") holds a pipeline "easement" or "right of way" obtained in an expropriation proceeding against her predecessor in title, appeals from the district court's dismissal of her claims against TGP as time barred by prescription. Concluding that the district court erred by failing to ground its analysis in the fundamental recognition that the expropriation judgment created a servitude over the subject property, we reverse the district court's dismissal¹ and remand for further proceedings consistent with this opinion.

I. FACTS AND PROCEEDINGS

Two interstate gas pipelines owned and operated by TGP, formerly known as Tennessee Gas Transmission Company, are located in parallel canals or "flotation ditches" that intersect Rose's property near Breton Sound in coastal Louisiana. TGP lawfully obtained authority to build the two pipelines across Rose's property at different times by instigating the judicial procedure known in Louisiana as "expropriation," which is "practically synonymous" with eminent domain.²

TGP dredged the first canal and laid the first pipeline in it in 1958, after obtaining a favorable judgment in an expropriation proceeding in Louisiana state court and subsequently settling with Rose's predecessor in interest, Violet Trapping Company ("Violet"), while an appeal was being pursued. Under the settlement, Violet granted TGP the right to dredge a canal approximately forty feet in width and to lay a pipeline within those bounds.

In 1964, following unsuccessful negotiations, TGP prevailed in a second expropriation proceeding against Violet, in which the court granted TGP the right to dredge a second canal and lay a pipeline therein. The judgment specified that TGP could dredge a fifty-foot canal parallel to and 100 feet east of the 1958 canal, and it awarded Violet compensation for the taking.³ Violet appealed that judgment, but the Louisiana Fourth Circuit Court of Appeal affirmed.⁴

Although the Louisiana appellate court upheld the judgment, it noted in dicta that Violet retained the right to seek damages for future erosion that might result from any wrongful act by TGP. The court stated:

We have not failed to consider evidence indicating that the first canal is now considerably wider at certain points than when dredged in 1958. Nor have we overlooked the testimony ... that the erosion between the two canals might eventually destroy the middle land area, resulting in one wide canal. Whatever complaint [Violet] might have that the widening of the first canal has resulted from fault of the plaintiff, does not address itself to the court in this expropriation proceeding. If in the future it should develop that defendant's property is damaged by some fault of the plaintiff ... the defendant may then have recourse to the courts in a proper proceeding according to law.⁵

Alleging, inter alia, that TGP's wrongful failure to maintain the canals allowed the canals to increase in width and erode her property, Rose filed a Class Action Petition for Damages against TGP, El Paso Energy Corporation ("El Paso"), and Popich Marine Construction ("Popich") on June 17, 2005, in Louisiana state court. Rose sought damages and the restoration of her land based on (1) the defendants' alleged negligence in maintaining the canals within their proper boundaries, (2) their breach of the duty owed towards her servient estate, and (3) trespass.

After the defendants removed the case to the district court, Rose voluntarily dismissed El Paso as a defendant, and the court denied Rose's Motion for Class Certification. The remaining defendants, TGP and Popich, filed a "Motion to Dismiss, and Alternatively, For Summary Judgment" based on prescription. Before the district court ruled on that motion, Rose voluntarily dismissed Popich from the suit, leaving only TGP.

Following a hearing, the district court granted TGP's motion and dismissed the suit without written reasons. In dismissing the action, the district judge stated: "I do find that there was not a duty to maintain by the defendant in this case. As a result, there is no continuing tort at issue, and this case has prescribed." Rose timely filed a notice of appeal.

II. ANALYSIS

A. Standard of Review

We review the dismissal of Rose's claims de novo, applying the same standard as the district court.⁶

B. Duty to Maintain

Rose argues that TGP had a duty to maintain the canal it constructed pursuant to the 1964 expropriation judgment, and that TGP's failure to do so has caused the canal to grow wider, diminishing her property by erosion. Rose further argues that TGP's duty is continuing, and, consequently, the relevant prescriptive period has been tolled. The district court rejected these arguments when it dismissed Rose's claims; however, in doing so, the court failed to account for the fact that the 1964 expropriation judgment created a servitude in favor of TGP, thereby implicating Louisiana's suppletive law on servitudes and potentially imposing various duties on TGP as the holder of a dominant estate.

The 1964 expropriation judgment granted TGP a "right of way and easement" over Rose's property. TGP contends that, because the "right of way and easement" was created in an expropriation proceeding, rather than by means of a conventional agreement, no servitude exists and Louisiana's suppletive law on servitudes is not implicated. Having reviewed the applicable Louisiana law and jurisprudence, we conclude that the 1964 expropriation judgment did, in fact, create a servitude.

When TGP proceeded to expropriate the "right of way and easement" in question, it did so under the authority of Louisiana Revised Statutes Title 19.⁷ Section 19:1 defines the "property" that is subject to expropriation as "immovable property, including servitudes...."⁸ As evident by Title 19, as well as by a substantial body of Louisiana jurisprudence, it is well established in Louisiana that one of the ways that a servitude may be created is by expropriation of property for public utility.⁹

To hold for TGP that the 1964 expropriation judgment did not create a servitude, we would have to conclude that in ordering the "right of way and easement," the state court was granting something other than a servitude in the immovable property at issue. TGP argues that such is the case, noting that the expropriation judgment identified the interest created as a "right of way and easement," rather than a "servitude." It is widely recognized, however, that myriad common law terms have seeped interstitially into Louisiana judicial opinions and even into some specialized statutes,¹⁰ "easement" and "right of way" being just two. This phenomenon does not, however, work any substantive change in the law; rather, "easement" and "right of way" have simply become interchangeable synonyms for "servitude." Moreover, Louisiana law has long recognized that the grant of a "right of way" gives rise to a predial servitude,¹¹ and it is "uniformly accepted in the law of Louisiana that the common law word `easement' is the same as the Louisiana `servitude.'"¹²

We refuse to construe the court's use of the phrase "right of way and easement" in the 1964 expropriation judgment here at issue as a conscious effort to create some interest other than a servitude. We are persuaded that such word usage is nothing more than another example of the verbal alluvium from our sister states that has become engrafted onto our legal lexicon. Despite the fact that the term "easement" may not be found anywhere in the Civil Code, it continues to be used by courts and practitioners alike when what they really mean is servitude. And, we are convinced that its inclusion in TGP's 1964 judgment is just another example of such imprecision.

Our conclusion that the 1964 expropriation judgment created a servitude is bolstered by the fact that the interest granted to TGP meets the definition of a servitude.¹³ Louisiana Civil Code article 646 defines a predial servitude as a "charge on a servient estate for the benefit of a dominant estate," and notes that "[t]he two estates must belong to different owners."¹⁴ Here, Rose is the servient estate holder, as her property is burdened by the servitude, and TGP is the dominant estate holder, as it "owns" the right to lay and use the pipeline and enjoy the benefits from the burden imposed on the Rose property.¹⁵

Inasmuch as (1) servitudes may be created by expropriation, (2) the 1964 judgment used common law terminology synonymous with servitudes, and (3) the interest granted to TGP meets the legal definition of a predial servitude, we are persuaded that the 1964 expropriation judgment created a servitude, thereby implicating Louisiana's suppletive law on servitudes. Just as when silence in the writing of the parties opens a conventional obligation to provisions supplied by law, anything not expressly covered by the provisions of a judgment that creates a servitude will be supplied from the applicable law.

This determination is further supported by considerations of practicality as well. TGP only resorted to expropriation when it was unable to negotiate a conventional servitude with Violet, Rose's predecessor in...