Tenneco, Inc. v. Harold Stream Inv. Trust
| Decision Date | 04 February 1981 |
| Docket Number | No. 8060,8060 |
| Citation | 394 So.2d 744 |
| Parties | TENNECO, INC., Plaintiff-Appellee, v. The HAROLD STREAM INVESTMENT TRUST et al., Defendants-Appellants. |
| Court | Court of Appeal of Louisiana — District of US |
Camp, Carmouche, Palmer, Barsh & Hunter, A. J. Gray, III, Lake Charles, for defendants-appellants.
Shotwell, Brown & Sperry, George Wear, Jr., Monroe, for plaintiff-appellee.
Before DOMENGEAUX, STOKER, and LABORDE, JJ.
On March 10, 1980, plaintiff, Tenneco, Inc., filed expropriation petitions seeking a 30-foot wide right-of-way for an existing pipeline, which it operates across tracts of land located in Cameron Parish, Louisiana. These tracts of land are owned by the defendants in this suit, The Harold Stream Investment Trust, The Sandra Stream Investment Trust, and The Gray Stream Investment Trust, and the defendant in the consolidated suit, Matilda Gray Stream. 1 (All the defendants are hereinafter referred to as landowners). The landowners filed numerous exceptions, all of which were dismissed by the trial court and are no longer at issue, and then answered the petition, denying most of Tenneco's allegations.
Since Tenneco requested a jury trial on the issue of just compensation, the trial of all other issues was held before the trial judge on April 14, 1980. The matter was taken under advisement until April 18, 1980, when the court issued notice of its ruling in favor of the defendant-landowners. Judgment was signed on May 9, 1980, dismissing with prejudice Tenneco's demands for expropriation. Tenneco then timely filed a motion for a new trial. A hearing on this motion was held on May 22, 1980, after which the trial court granted a new trial for the limited purpose of amending the judgment to be without prejudice. That same day, the court signed the amended judgment dismissing the cases without prejudice. The amended judgment specifically set aside the judgment signed in the consolidated cases on May 9, 1980.
On July 28, 1980, a petition for appeal was filed by the landowners and an order of appeal was granted on the same date. The landowners have appealed only from that portion of the amended judgment which dismissed the cases without prejudice. They argue that the cases should have been dismissed with prejudice.
On September 11, 1980, Tenneco filed a motion to dismiss the appeal, arguing that the appeal was not timely perfected within the delay authorized by law. In addition, Tenneco has answered the appeal and seeks to reverse the judgment dismissing its principal expropriation demands. Tenneco argues that the evidence it presented sufficiently proved that the taking of the requested right-of-way was necessary and served a public purpose.
We will first decide Tenneco's motion to dismiss before determining (1) whether the evidence Tenneco produced was sufficient to prove its entitlement to a right-of-way, and (2) whether Tenneco's demands should have been dismissed with or without prejudice.
Tenneco moves to dismiss the devolutive appeal of the landowners in these cases on the ground that the appeal was not timely perfected. Tenneco argues that since the landowners' devolutive appeal was not perfected until some 67 days after the court's judgment of May 22, 1980, which amended the original judgment to be without prejudice but which otherwise denied the motion for a new trial, their appeal should be dismissed.
The delay for perfecting a devolutive appeal is set out in La.C.C.P. Article 2087:
"Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of:
(1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
(2) The court's refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
(3) The date of the mailing of notice of the court's refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.
When a devolutive appeal has been taken timely, an appellee who seeks to have the judgment appealed from modified, revised, or reversed as to any party may take a devolutive appeal therefrom within the delays allowed in the first Paragraph of this Article or within ten days of the mailing by the clerk of the notice of the first devolutive appeal in the case, whichever is later."
Tenneco argues that since a new trial was applied for, the sixty day period should begin to run from May 22, 1980, the date of the court's refusal to grant a new trial. However, the judgment of May 22, 1980, not only denied the motion for a new trial; it also vacated the May 9, 1980, judgment and rendered an amended judgment.
When an amended judgment is rendered, the parties have a new delay in which to apply for a new trial. Therefore, the delay for a devolutive appeal begins to run from the expiration of the delay for applying for a new trial, as provided by La.C.C.P. Article 1974, if no new application for a new trial has been filed timely. La.C.C.P. Article 2087(1).
An identical situation was presented to this Court in Quinney v. Maryland Casualty Co., 344 So.2d 1186 (La.App. 3rd Cir. 1977). In Quinney, judgment was rendered and a new trial was applied for timely. The trial court denied the motion for a new trial, but amended its previous judgment. This Court held that the delay for an appeal did not begin to run until the seven day delay period provided for applying for a new trial from the amended judgment had expired. For the same result, see Ware v. Wilson, 283 So.2d 813 (La.App. 2nd Cir. 1973).
In accordance with Quinney, supra, the landowners here had, under La.C.C.P. Articles 1974 and 2087(1), sixty days from June 2, 1980, which is seven clear days from the amended judgment of May 22, 1980, in which to perfect their devolutive appeal. The landowners' appeal, perfected on July 28, 1980, was thus timely and Tenneco's motion to dismiss the appeal is denied.
Tenneco, Inc. is a foreign corporation engaged in the business of transporting natural gas by way of pipeline to supply the public with natural gas. As such, it is entitled, under La.R.S. 19:2(5) to expropriate needed property. Pursuant to Article 1, Section 4 of the Louisiana Constitution of 1974, expropriation may not occur except for a public and necessary purpose and with just compensation paid to the owner. The expropriating authority bears the burden of proving that the taking serves a public and necessary purpose. The trial court in this instance concluded that Tenneco failed to carry its burden of proof that the taking was for a necessary public purpose. We agree for the reasons given by the trial court, which we quote as follows:
"... The feature of this expropriation suit that is somewhat unusual is that the pipeline is already in existence, having been constructed as a result of conventional agreements at an earlier time. The term of the earlier agreements expired, negotiations for a permanent right-of-way were not fruitful and the suits resulted.
On December 17, 1959, Matilda Geddings Gray, for herself and for others, granted a right-of-way to Socony Mobil Oil Company, Inc. traversing land in Cameron Parish, Louisiana. The purpose of the right-of-way was for construction of a pipeline. That conventional right-of-way agreement provided that it was effective for a 'maximum period of twenty (20) years from the date hereof ...' In 1965 Socony Mobil Oil Company, Inc. transferred to Tennessee Gas Transmission Company twenty-four (24) miles of sixteen (16) inch pipeline together with all rights-of-way pertaining thereto. Included in that transfer was the right-of-way across the subject property. On April 8, 1966 Tennessee Gas Transmission Company changed its name to Tenneco, Inc. Documentation of the change was filed with the Secretary of State of Louisiana on May 3, 1966.
The Federal Power Commission held a hearing on April 18, 1968 to approve the transfer to Tennessee Gas Pipeline Company (a division of Tenneco, Inc.) of the twenty-four (24) mile portion of the Cameron-Creole line then owned by Mobile Oil Corporation. The commission approved the transfer of ownership and came to these official conclusions:
'1) Applicant, Tennessee Gas Pipeline, a division of Tenneco, Inc., is a "natural gas company" within the meaning of the natural gas act.
2) The facilities herein before described, as more fully described in the application, will be used in the transportation of natural gas in interstate commerce subject to the jurisdiction of the commission, and the acquisition and operation of the facilities by the applicant are subject to the requirements of Section 7(c) and (e) of the Natural Gas Act.
3) The acquisition and operation of the facilities are required by the public convenience and necessity, and the certificate should be issued as hereinafter ordered.'
The certificate from the FPC, now the Federal Energy Regulatory Commission, was introduced into evidence at the hearing. Because the pipeline is already constructed and is in service currently, the plaintiffs did not feel it was necessary to present the usual evidence regarding route selection. The plaintiffs explained their approach in a memorandum brief with the following language:
'Therefore, many traditional questions such as selection of the route of the pipeline or the necessity of the taking of a servitude across a particular tract of land as opposed to the necessity of taking in general are not involved in these proceedings.'
The Court feels that this is an error and this approach has resulted in a failure of the plaintiff to carry the burden imposed upon it by appropriate law.
An expropriation proceeding is in derogation of the common right to own...
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