United Gas Pipe Line Co. v. Landry

• Decision Date: 17 November 1969
• Docket Number: Nos. 7544,7780,s. 7544
• Citation: 228 So.2d 565
• Parties: UNITED GAS PIPE LINE COMPANY v. Brittmar LANDRY et al.
• Court: Court of Appeal of Louisiana — District of US

Page 565

228 So.2d 565

UNITED GAS PIPE LINE COMPANY v. Brittmar LANDRY et al.

Nos. 7544, 7780.

Court of Appeal of Louisiana, First Circuit.

Nov. 17, 1969.

Risley C. Triche, of Triche & Sternfels, Napoleonville, for defendant-appellant.

Ray A. Barlow, of Hargrove, Guyton, Van Hook & Ramey, Shreveport, and Martin, Himel, Daly & Peytavin, New Orleans, and Blum, Talbot, Sotile & Carmouche, Danaldsonville & Napoleonville, for plaintiff-appellee.

Before LOTTINGER, REID and BLANCHE, JJ.

BLANCHE, Judge.

Plaintiff, United Gas Pipe Line Company, filed six suits seeking to expropriate a gas pipe line right of way across six contiguous tracts of land, five located in Assumption Parish, and one in Ascension Parish, Louisiana. ¹ These six suits were consolidated for trial; the cases were taken under advisement and separate judgment was rendered in each suit in favor of plaintiff and against the respective defendants decreeing expropriation of the sought right of way and awarding the respective defendants damages attriutable to the taking. Defendants in each of the cases devolutively appealed, and plaintiff in each of the six cases answered the appeal seeking a decrease in the respective awards and reversal of the judgment assessing plaintiff with expert witness fees. All issues raised in the appeals will be considered and disposed of in this opinion, although separate decrees will be rendered.

Two appeals have been taken by the defendants in the instant case, the first of which, No. 7544, raises the sole issue of the right of defendants to a jury trial. The trial court refused to grant the defendants such right from which ruling defendants devolutively appealed. A motion to dismiss this appeal was referred to the appeal on the merits. See United Gas Pipe Line Company v. Landry et al., 212 So.2d 458 (La.App.1st Cir. 1968).

The general expropriation statute of Louisiana contains an express provision proscribing the trial of the expropriation cases before a jury:

'All expropriation cases shall be tried before the court without a jury.' LSA-R.S. 19:4.

The jurisprudence has consistently held that in a right of way expropriation case involving a gas pipe line company such as plaintiff, there exists no right to a jury trial, Tennessee Gas Transmission Company v. Williams, 65 So.2d 414 (La.App.2d Cir. 1953); Michigan Wisconsin Pipe Line Company v. Bonin, 217 So.2d 741 (La.App.3rd Cir. 1969), writ refused, 253 La. 735, 219 So.2d 513. Accordingly, the ruling of the trial court denying defendants a trial by jury will be affirmed.

The first specification of error urged by defendants in all of the appeals is that the trial court erred in awarding plaintiff the right of expropriation, which specification directs itself to consideration of plaintiff's authority to expropriate, the public purpose and public necessity of the expropriation and the efficacy and Bona fides of plaintiff's negotiations with the defendants prior to instituting expropriation proceedings. Plaintiff contends, however, that these issues were waived by defendants in three of the cases--the Landry, Kessler and Le Blanc suits--by virtue of their failure to answer the expropriation suit within the delay allowed by statute, with the result that in these three cases defendants cannot question plaintiff's right of expropriation and can only litigate the question of compensation and damages. We think plaintiff's position in this regard is well founded.

LSA-R.S. 19:6 provides that the defendant shall file his answer and serve a copy thereof on the plaintiff within ten days after service upon the defendant of the notice of time fixed for the trial, and LSA-R.S. 19:7 enunciates the sanction for failure to answer timely:

'Failure of the defendant in any such suit to file his answer timely or to serve a copy thereof on the plaintiff timely constitutes a waiver by the defendant of all defenses to the suit except claims for money as compensation for the property sought to be expropriated and claims for money as damages to other property.'

The record reflects that answer was not filed by the defendants in the three aforementioned suits within the prescribed delay, and under the plain terms of the above-quoted statute these defendants can only litigate the question of compensation and damages. See Texas Gas Transmission Corporation v. Sigue, 163 So.2d 386 (La.App.3rd Cir. 1964), writ refused, 246 La. 580, 165 So.2d 480; Michigan Wisconsin Pipe Line Company v. Bonin, 217 So.2d 741 (La.App .3rd Cir. 1969), writ refused, 253 La. 735, 219 So.2d 513.

In the remaining cases, however, the issues presented by this first specification of error are properly before us on appeal inasmuch as the defendants in these cases timely filed their answer or opposition.

The presiding judge in his Reasons for Judgment ably summarized and related the pertinent evidence pertaining to these issues and his conclusions in favor o plaintiff drawn therefrom, which we quote with approval:

'The plaintiff in these matters, United Gas Pipe Line Company, seeks to secure a 60-foot wide right of way and servitude for the construction, operation and maintenance of a 30-inch pipeline for the transportation of natural gas over, under and through a portion of the defendants' properties in Assumption and Ascension Parishes, Louisiana; the right of way to be reduced to 40 feet in width subsequent to the construction of the pipeline. * * *

'The evidence discloses that the plaintiff presently maintains and operates a 30-inch natural gas pipeline which runs from offshore Louisiana to Koscuisko, Mississippi. The proposed line is what is known in the industry as a 'loop line' and will run from plaintiff's compressor station near Napoleonville in Assumption Parish some 19.7 miles to a point near the Mississippi River in Ascension Parish. Citing appropriate constitutional provisions and jurisprudential pronouncements which require that expropriation can only be allowed when the taking is for a public purpose, counsel for defendants contend that plaintiff here bears the burden of proving that the construction is for the purpose of marketing gas to the public. They assert that the testimony of Mr. Pegues, plaintiff's general pipeline superintendent, shows that the proposed loop will increase the company's deliverability by 90 million cubic feet of gas per day and that as in one year the requirement of one consumer, Willow Glen Power Plant, will be 80 million cubic feet of gas per day or 80% Of the increased deliverability, the purpose of the proposed loop is to serve but one industrial user and hence the taking sought is not for a public purpose as required. Such is not the case. ²

'Mr. Pegues testified that the proposed line, together with the existing line which it will loop and which runs from offshore Louisiana to Koscuisko, Mississippi, will be used to transport natural gas and to serve the public in the states of Louisiana, Mississippi, Alabama and Florida by meeting contract requirements with Texas Eastern Transmission Corporation, Southern Natural Gas Company, Union Texas Petroleum Corporation, Sugar Bowl Gas Corporation, Gulf States Utilities Company, New Orleans Public Service, Dixie Gas Company and Louisiana Gas Service Company and to serve residences, homes, commercial establishments and other industrial consumers in many towns and cities in the four states mentioned. The gas, he testified, will be sold directly to some consumers and indirectly to others through wholesalers along the entire pipeline. The Court is of the opinion that the uncontradicted testimony shows without a shadow of a doubt that the sole and only purpose of the proposed line is not, as counsel contends, to serve but a single consumer, but rather to increase deliverability to the public as a whole in the four-state area and thus that plaintiff has clearly carried the burden of proving a public purpose as required. It might be added that the doctrine, so to speak, of public purpose is one about which this Court entertains some rather strong feelings and that if it had any misgivings as to requirements being met it would not hesitate to deny plaintiff the right to expropriate the defendants' properties. As stated before, however, the Court is clearly convinced that the taking here is clearly and without doubt for a public purpose and hence will be allowed. * * *

'In support of their contention that the proposed line is not necessary or expedient the defendants offered the testimony of Mr. Paul Montgomery, 1938 graduate in petroleum engineering from Louisiana State University, who has had considerable experience in the oil and natural gas field. This gentleman testified on March 7, 1968 and stated that he had begun his study of the United Gas Pipe Line system some ten days previously. He stated that the purpose of the loop was to increase the capacity or deliverability of the line. This proposed increase, he testified, could be effected through the existing line by the use of an additional 511 horsepower at the Napoleonville compressor station and that, as the station was presently using only 3900 horsepower out of a 5000-horsepower capacity, there would remain about 600 unused horsepower. He testified, in addition, that to serve the Mobile, Alabama area through the McComb, Mississippi route was inefficient and that the area should be served from a line running eastward from New Orleans, Louisiana. On cross-examination he readily admitted that the construction of the proposed line would not be what could be termed a mistake.

'Mr. Pegues, on the other hand, testified that the proposed loop (estimated to cost $3,397,000.00 and onl one phase out of a project proposed to cost a total of $8,371,771.00) was arrived at after a study conducted by 12 of the United Gas Company's employees which consumed some 100 man days. He testified further as to how the demand for natural gas and new facilities to handle it have increased and are...