Texas Eastern Transmission Corp. v. Bowie Lumber Co.

• Decision Date: 24 May 1965
• Docket Number: No. 6396,6396
• Citation: 176 So.2d 735
• Parties: TEXAS EASTERN TRANSMISSION CORPORATION, Plaintiff-Appellee, v. BOWIE LUMBER COMPANY, Ltd., Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 735

176 So.2d 735

TEXAS EASTERN TRANSMISSION CORPORATION, Plaintiff-Appellee, v. BOWIE LUMBER COMPANY, Ltd., Defendant-Appellant.

No. 6396.

Court of Appeal of Louisiana, First Circuit.

May 24, 1965.

Rehearing Denied July 1, 1965.

Walter J. Suthon, III, John L. Glover, Malcolm L. Monroe, of Monroe & Lemann, New Orleans, John F. Pugh, of Pugh, Lanier & Pugh, Thibodaux, for appellant.

Ray A. Barlow, of Hargrove, Guyton, Van Hook & Ramey, Shreveport, Martin, Himel, Morel & Daly, New Orleans, Peltier & Peltier, Thibodaux, for appellee.

Before ELLIS, LOTTINGER, LANDRY, REID and BAILES, JJ.

BAILES, Judge.

This is an action to expropriate property for the purpose of constructing a natural gas transmission pipe line.

The plaintiff, Texas Eastern Transmission Corporation, sues Bowie Lumber Company, Ltd., in this expropriation proceeding to acquire a right of way or servitude across a tract of land owned by defendant in Lafourche Parish for the construction, operation and maintenance of a 36-inch gas pipe line. Prior to entering this action, plaintiff offered the defendant the sum of $4,860 for the rights herein sought. Defendant refused this amount. The trial court rendered judgment in favor of plaintiff awarding it the right of way sought and condemned it to pay the defendant the sum of $7,304.10. Defendant appeals. The plaintiff neither appealed nor answered the appeal.

Plaintiff is a corporation existing primarily for the purpose of conveying and marketing natural gas to gas distributing companies. It purchases and gathers natural gas in the gulf south area and distributes it to customers from Louisiana to the eastern seaboard. Being a natural gas company as that term is defined in the Natural Gas Act (15 U.S.C. § 717a(6)) its operation is under the direction and control of the Federal Power Commission (15 U.S.C. § 717(a) & (b)). Discerning a greater demand from its customers and securing an additional source of supply of natural gas from the Gulf Oil Corporation at Venice, Louisiana, the plaintiff made application to the Federal Power Commission, as it was required to do under the provisions of 15 U.S.C. § 717f, for authority and permission to construct a 36-inch pipe line from Venice to New Roads, Louisiana, to tie in with its presently existing cross-country transmission line. On December 19, 1963, the Federal Power Commission issued to the plaintiff a certificate of public convenience and necessity, and under the authority of this certificate it commenced the construction of this facility to its present system.

The defendant is the owner of an extensive area of land embracing approximately 45,000 acres of which there lies north of the Southern Pacific Railroad across Bayou Lafourche from Raceland a tract containing 531 acres. This tract of land is located in Sections 57, 53, 29, 30 and 121, Township 15 South, Range 18 East, Ward 7, of Lafourche Parish. In the projection of the proposed pipe line from Venice to New Roads, it was in too close proximity to the inhabited area of Raceland, in the opinion of plaintiff's engineers. In order to avoid this area, the route was altered in this projection by moving it further to the north of Raceland but yet passing Raceland south of the Southern Pacific railroad until it reached a point opposite the above described land of defendant. At this point, the line was laid out to cross the railroad, enter the property of defendant, and traverse it from an easterly to a westerly direction, diagonally, for a distance of about 7,814 feet. The right of way sought is 60 feet wide for this entire distance. The area of the permanent right of way measured 10.75 acres of land.

The defendant earnestly urges a reversal of the judgment awarding the expropriation of its property to plaintiff on the ground that the plaintiff lacks the power of expropriation. In the alternative, the defendant contends that if the plaintiff is empowered to expropriate its property, then there should be an adjustment of the line across defendant's property, and too, there should be an increase in the determination of value of the servitude and in severance damages. We will discuss these contentions in the order stated.

Plaintiff's Lack of Power of Expropriation

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. 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. * * *'

We find and so hold that the plaintiff has amply demonstrated that it has the right and authority to institute these expropriation proceedings for the acquisition of the right of way herein sought.

There is inherent in government, both state and federal, the power of eminent domain. The government, through certain agencies so designated by the legislature or Congress, has the constitutional authority to delegate the power, through authority conferred by these agencies, to certain classes of entities that serve public necessity and convenience. An example of the governmental agency is the Federal Power Commission, and the class of entity is a gas transmission company.

Adjustment of the Line Across Defendant's Property

At the present time, the 531 acre tract of land described supra is devoted to pasturage and timber growing. The highest and best of the land is located on the front or next to the Southern Pacific railroad, this being the south side of the property. From the maps introduced into evidence it appears that this 531 acre tract of land has a frontage along the railroad of approximately 8,500 feet. There now exists a Louisiana Power and Light Company power transmission right of way which traverses this tract for its entire width at a depth from the railroad on the east side of 1500 feet to about 900 feet on the west side.

According to the testimony of witnesses who have been on the land, the ground lying between the power line right of way and the railroad is the highest and best land, the front land.

The right of way sought by the plaintiff begins at a point some 350 feet west of the point where the east line of Section 57, Township 15 South, Range 18 East crosses the north side of the railroad right of way, then proceeds in a northwesterly direction for about 120 feet, thence in a westerly direction the remaining width of the tract, or a distance of about 7800 feet. The pipe line leaves the property of defendant at a distance of about 1300 feet north of the north right of way line of the railroad. The result of this projection is that it runs diagonally from the southeast corner of the front land of the tract and makes its exit in the northwest corner of this highest and best land. The pipe line crosses the power line right of way a distance of about 5700 feet from the point of entry on the property.

The defendant proposed two substitute right of ways, but the one seriously proposed is described as one extending on a tangent and on the same bearing as that at which the pipe line crosses the railroad right of way onto the defendant's property to a point that this tangent crosses the power line right of way, thence running along the north side of the power line right of way, occupying a part of the Louisiana Power and Light Co. right of way and partly the land of the defendant to the point this line intersects with the proposed line as laid out by plaintiff, or the point on the north side of the...