Tennessee Gas Transmission Co. v. Violet Trapping Co., 2620

CourtCourt of Appeal of Louisiana (US)
Writing for the CourtBARNETTE
Citation200 So.2d 428
Docket NumberNo. 2620,2620
Decision Date05 June 1967

Page 428

200 So.2d 428
No. 2620.
Court of Appeal of Louisiana, Fourth Circuit.
June 5, 1967.
Rehearing Denied July 5, 1967.

Page 430

Jones, Walker Waechter, Poitevent, Carrere & Denegre, Ernest A. Carrere, Jr., New Orleans, and Shotwell, Brown & Sperry, Burt. W. Sperry, Monroe, for plaintiff-appellee.

John W. Bryan, Jr., New Orleans, for defendant-appellant.



This is an expropriation proceeding brought by Tennessee Gas Transmission Co. for a right-of-way across a section of land owned by Violet Trapping Co., Inc., in Plaquemines Parish, Louisiana. Plaintiff seeks the right-of-way for the purpose of laying a 36-inch high pressure gas pipeline. This pipeline will be used to transmit natural gas from the point of production in the coastal area of Louisiana to the consuming public in certain northeastern states.

Judgment was read, signed and filed on September 21, 1964, in plaintiff's favor granting the right of expropriation and fixing compensation for the property taken and damages in the amount of $2,877.19. Suspensive appeal was sought and denied by the trial judge under the authority of LSA-R.S. 19:13 as amended by Act 108 of 1960. With reservation of rights under its petition for suspensive appeal, defendant petitioned for, and was granted, a devolutive appeal. It is on that appeal that the case is now before us.

When its petition for suspensive appeal was denied, defendant applied to this court for writs of mandamus and prohibition. On November 13, 1964, this court, in proceeding No. 1741 on our docket, denied writs with the following per curiam:

'Writs refused.

The application is denied. There is no constitutional guarantee of a suspensive appeal, and the act of the legislature in limiting appeals in expropriation cases to devolutive appeals is not unconstitutional.'

Writs were then applied for and granted to the Supreme Court limited to the question of constitutionality of LSA-R.S. 19:13 and LSA-C.C. arts. 2634 and 2636 as amended by the acts of the Legislature of 1960 (Acts 92, 93, and 108). The Supreme Court, on rehearing held the acts constitutional. See Tennessee Gas Transmission Co. v. Violet Trapping Co., 248 La. 49, 176 So.2d 425 (1965).

The facts and the issues raised by defendant's exceptions and answer were accurately stated in the foregoing opinion of the Supreme Court and will not be repeated here. As indicated, that Court's decision did not dispose of the merits of the case, to which we will now address ourselves.

Plaintiff is a 'natural gas company' within the meaning of the Natural Gas Act (15 U.S.C.A. § 717 et seq.). It is engaged in the business of interstate transportation of natural gas by means of pipelines to the consuming public in many states and enjoys the right of expropriation in accordance with the provisions of 15 U.S.C .A. § 717f(h) and LSA-R.S. Title 19. It does not appear that the authority is challenged by defendant; but defendant does strongly contend that the Certificate of Public Convenience and Necessity issued by the Federal Power Commission, July 13, 1964, upon which plaintiff relies for its authority to construct the pipeline in question, is invalid.

Defendant further contends that plaintiff has already acquired the necessary right-of-way across its property by an agreement dated August 12, 1958, and that under this agreement plaintiff is obligated to construct the proposed pipeline on the right-of-way acquired by that agreement. On this premise defendant argues that there is no necessity for a further taking of its property.

These are the principal issues of contention which must be disposed of before consideration can be given to such matters as

Page 431

compensation, severance and consequential damages, and other incidental issues.

The defendant's attack on the validity of the Certificate of Public Convenience and Necessity is based on the contention that it was issued without notice to defendant and that a hearing, as required by law, was not had on its application. The merits of this contention cannot be considered by us. Our Supreme Court has clearly held that our courts will not entertain an attempt to attack collaterally an order of the Federal Power Commission.

In Texas Eastern Transmission Corp. v. Bowman, 238 La. 399, 115 So .2d 797 (1959), the Supreme Court said:

'Concededly, plaintiff corporation was organized for the purpose of, and it engages in, the transporting and marketing of natural gas for public consumption on an interstate basis. And the conducting of its business is, pursuant to an act of Congress adopted June 21, 1938 (U.S.C.A. Title 15, Section 717 et seq.), subject to regulation exclusively by the Federal Power Commission. See Illinois Natural Gas Co. v. Central Illinois Public Service Co., 314 U.S. 498, 62 S.Ct. 384, 86 L.Ed. 371. Hence, it is seriously doubted that we could justifiably question or disregard the order of the Commission (apparently subjected to a collateral attack here by appellants) which recited that it was necessary and desirable in the public interest to permit the installation and operation of the instant interconnecting line, particularly since the mentioned congressional enactment declares that the right to a judicial review of the Commission's orders shall be vested in the federal courts. See 15 U .S.C.A. § 717r; Graziani v. Elder & Walters Equipment Co., Inc., 209 La. 939, 25 So.2d 904; Parkes v. Natural Gas Pipe Line Co. of America, 207 Okl. 91, 249 P.2d 462, 73 C.J.S. verbo Public Administrative Bodies and Procedure § 174, p. 516; and Home Gas Co. v. Eckerson, 197 Misc. 793, 94 N.Y.S.2d 221.' 238 La. at 406, 115 So.2d at 799.

This authority was cited and followed in Texas Eastern Transmission Corp. v. Bowie Lumber Co., 176 So.2d 735 (La.App.1st Cir. 1965). There the court said:

'Plaintiff in support of its right and authority to expropriate the property in question introduced into evidence the order of the Federal Power Commission. This order, dated December 19, 1963, contains the certificate of public convenience and necessity. Additionally, testimony was offered by plaintiff to explain the nature of its business, as well as the purpose for which the pipe line would be used. We have carefully examined the contention and position of the defendant in respect to its position that plaintiff lacks expropriation authority. We fail to find anything in this position that merits a detailed discussion. The defendant attacks this right of plaintiff in the vein that the order of the Federal Power Commission is of no effect because the Commission did not hold a formal hearing on plaintiff's application. Suffice it to say that this is a collateral attack on the order of a federal agency and even if it could be a subject of collateral attack, which we hold is not possible under the authority of Texas Eastern Transmission Corporation v. Bowman (1959) 238 La. 399, 115 So.2d 797, any attack on an order of a federal agency must be brought in a federal court.

'Filed in evidence is a certified copy of the order of the Commission. On its face it appears to be regular and in conformity to the regulatory requirements of the Natural Gas Act, supra.

'Furthermore, an order of the Federal Power Commission carries with it a presumption of validity. In 73 C.J.S. Public Administrative Bodies and Procedure § 145, p. 478, the rule is stated as follows:

'As a general rule, the decisions or orders of an administrative body are, in the absence of evidence to the contrary, presumptively correct and valid.

Page 432

Thus there is a presumption that legal duties and statutory requirements were complied with, that facts justifying a ruling were in existence, and that there was sufficient evidence on which to base the decision of the agency. * * * " 176 So.2d at 737--738.

In addition to its attack on the validity of the Certificate of Public Convenience and Necessity for alleged want of notice, defendant argues that plaintiff should have been required to prove that it had complied with all conditions of the certificate before being permitted to proceed with expropriation. The pertinent paragraphs of the certificate are as follows:

'(A) A certificate of public convenience and necessity be and the same is hereby issued authorizing Applicant, Tennessee Gas Transmission Company, to construct and operate the proposed facilities and to sell and deliver natural gas as hereinbefore described, all as more fully described in the application in this proceeding, upon the terms and conditions of this order.

'(B) The certificate issued by paragraph (A) above and the rights granted thereunder are conditioned upon Applicant's compliance with all applicable Commission Regulations under the Natural Gas Act and particularly the general terms and conditions set forth in paragraphs (a), (b), (c)(1), (c)(2), (c)(3), (c)(4) and (e) of Section 157.20 of such Regulations.'

Any complaint which defendant might have of plaintiff's failure to comply with the conditions upon which the authority was granted should be addressed to the Federal Power Commission. It must be assumed that the Commission is fully capable of enforcement of its own orders. Furthermore, defendant has failed to point out which conditions have not been met, or wherein the authority of the Commission has been violated. Finally, this also is a collateral attack on the validity of the...

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