United States District Court, E.D. Louisiana
VINTAGE ASSETS, INC.
TENNESSEE GAS PIPELINE COMPANY, L.L.C.
ORDER AND REASONS
TRICHE MILAZZO, UNITED STATES DISTRICT JUDGE
the Court are Defendants Tennessee Gas Pipeline Company, LLC,
Southern Natural Gas Company, LLC, High Point Gas
Transmission, LLC, and High Point Gas Gathering, LLC's
Partial Motion for Summary Judgment on Duty to Maintain Canal
and Canal Banks (Doc. 117); Motion for Summary Judgment on
Prescription (Doc. 190); Partial Motion for Summary Judgment
on Claims for Trespass and Disgorgement of Profits (Doc.
111); and Plaintiffs' Partial Motion for Summary Judgment
(Doc. 122). For the following reasons, Defendants' Motion
for Summary Judgment on Duty to Maintain Canal and Canal
Banks is GRANTED IN PART; Defendants' Motion for Summary
Judgment on Prescription is DENIED; Defendants' Partial
Motion for Summary Judgment on Claims for Trespass and
Disgorgement of Profits is GRANTED; and Plaintiffs'
Partial Motion for Summary Judgment is GRANTED IN PART.
1953 and 1970, Defendants' predecessors received eight
right-of-way servitudes crossing various portions of
Plaintiffs' property, which authorized the construction
and operation of pipelines and dredge canals. Plaintiffs
allege that Defendants failed to maintain these canals,
resulting in erosion and damage to their property. It is
undisputed that the widths of the canals now far exceed that
which was contemplated by the servitude agreements.
Plaintiffs bring state law claims for trespass, breach of
contract, and negligence. There are several motions before
the Court, discussing whether Plaintiffs can succeed on their
trespass claim, whether Plaintiffs' claims are
prescribed, and whether Defendants had a duty to maintain the
canals. This Court will address each issue in turn.
however, a discussion of the various servitude agreements at
issue is appropriate. From 1953 to 1970, Plaintiffs'
grandfather and later their father granted eight
rights-of-way on four different parcels of property to
Defendants and their predecessors.
January 9, 1953, Plaintiffs' predecessors granted a
right-of-way to Defendant Southern Natural Gas Company, LLC
(“SNG”) on Section 31 and 32 of Township 16
South, Range 15 East (“1953 Contract”). This
agreement granted Defendants a right-of-way and easement 100
feet in width within which to operate a pipeline. The
agreement allowed the pipeline to lay in “open ditches
or canals not to exceed 40 feet in width, which may be filled
in or left open at the option of Grantee.” The
agreement prevents Plaintiffs from constructing any
obstruction or changing the grade over the pipeline.
15, 1970, Plaintiffs' predecessors granted a right-of-way
covering portions of the same parcel to SNG for the purpose
of installing a second parallel pipeline (“1970
Contract”). The agreement stated that Plaintiffs
granted Defendants a 175-foot pipeline easement, including
“the right to lay such pipeline in an open ditch or
canal, ” and the right to widen the existing 40-foot
canal by an additional 25 feet. In the agreement, Defendants
also agreed to dam or bulkhead the canal at the point where
the canal enters and leaves the property.
January 9, 1953, Plaintiffs' predecessors granted a
right-of-way to SNG covering Section 5 of Township 17 South,
Range 15 East (“1953 Contract”). That agreement
granted Defendants a 100-foot-wide right-of-way “to lay
such pipe line or lines in open ditches or canals not to
exceed 40 feet in width, which may be filled in or left open
at the option of Grantee.” The agreement prevents
Plaintiffs from constructing any obstruction or changing the
grade over the pipeline.
15, 1970, Plaintiffs' predecessors granted to SNG a new
right-of-way covering the same portion as the 1953 Contract
for the purpose of laying a second parallel pipe line
(“1970 Contract”). The agreement granted a
175-foot right-of-way, including “the right to lay such
pipeline in an open ditch or canal, ” and the right to
widen the existing canal by an additional 25 feet The
agreement required Defendants to dam or bulkhead the canal
where it enters and leaves the property.
February 13, 1958, Plaintiffs' predecessors granted a
right-of-way covering portions of Section 24 of Township 16
South, Range 15 East, and Sections 19 and 20 in Township 16
South, Range 16 East to SNG (“1958 Contract”).
The agreement granted a 100-foot easement and the right to
lay pipelines in “open ditches or canals not to exceed
40 feet in width, which may be filled in or left open at the
option of Grantee.” The agreement prevents Plaintiffs
from constructing any obstruction or changing the grade over
the pipeline laid pursuant to the agreement.
1, 1964, Plaintiffs' predecessors granted a right-of-way
to Defendant Tennessee Gas Pipeline Company, LLC
(“TGP”) covering Section 5 in Township 17 South,
Range 15 East; Section 32 in Township 16 South, Range 15
East; and Section 17, Township 17 South, Range 15 East
(“1964 Contract”). The agreement granted a
40-foot pipeline easement, stating that “the open ditch
or canal which Grantee may dig will be dug to a minimum depth
of approximately minus six feet (-6') below mean low gulf
level and will not exceed forty (40') feet in width at
the top.” In addition, Plaintiffs' predecessors
granted rights-of-way on August 19, 1957 and July 3, 1958 to
TGT that simply granted the right to lay pipelines in open
ditches or canals “which may be filled in or left open
at the option of Grantee.” These contracts provided no
“not to exceed” measurement for the canals or
rights-of-way (“No Measurement Contracts”).
Court will discuss the parties' motions as they relate to
each servitude agreement.
judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” A genuine issue
of fact exists only “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
determining whether the movant is entitled to summary
judgment, the Court views facts in the light most favorable
to the non-movant and draws all reasonable inferences in his
favor. “If the moving party meets the
initial burden of showing that there is no genuine issue of
material fact, the burden shifts to the non-moving party to
produce evidence or designate specific facts showing the
existence of a genuine issue for trial.” Summary judgment
is appropriate if the non-movant “fails to make a
showing sufficient to establish the existence of an element
essential to that party's case.” “In
response to a properly supported motion for summary judgment,
the non-movant must identify specific evidence in the record
and articulate the manner in which that evidence supports
that party's claim, and such evidence must be sufficient
to sustain a finding in favor of the non-movant on all issues
as to which the non-movant would bear the burden of proof at
trial.” “We do not . . . in the absence of
any proof, assume that the nonmoving party could or would
prove the necessary facts.” Additionally, “[t]he
mere argued existence of a factual dispute will not defeat an
otherwise properly supported motion.”
Plaintiffs argue that the widening of the canals constitutes
a trespass on their property. Defendants have filed a Motion
for Summary Judgment seeking dismissal of Plaintiffs'
claim for trespass and request for disgorgement of profits.
In addition, Plaintiffs have filed a Motion for Summary
Judgment seeking a finding that Defendants' canals are
trespassing on their property. This Court will discuss these
motions concurrently in its consideration of the viability of
Plaintiffs' trespass claims.
argue that the Defendants have committed a trespass by
allowing the canals that were dredged on Plaintiffs'
property pursuant to the servitude agreements at issue to
exceed the width of the rights-of-way granted. Further,
Plaintiffs allege that Defendants trespassed in bad faith and
that Plaintiffs are therefore entitled to the civil fruits
earned by Defendants as a result of their trespass.
Defendants argue, however, that trespass requires an
affirmative, “physical invasion” of property and
that the widening of a canal does not constitute an
unauthorized physical act by Defendants. They argue that
Plaintiffs cannot identify any affirmative act committed on
their property by Defendants and that their trespass claims
should therefore be dismissed.
Louisiana law, a trespass is an act of unlawful physical
invasion of the property of another. Plaintiffs set forth two
arguments to support their claims for trespass. First, they
argue that exceeding the rights granted in a right-of-way
results in trespasser liability. Second, they argue that a
trespass can occur through negligent acts.
their first argument, Plaintiffs cite to case law that they
argue stands for the proposition that operating outside of a
right-of-way constitutes a trespass. This Court, however,
finds these cases easily distinguishable. In each of the
cases cited by Plaintiffs, the defendants took an
affirmative, unauthorized action that constituted a trespass.
For example, the cases involved acts of laying a fiber optic
cable outside of the area designated by the right-of-way,
laying a sewer line without the property owner's consent,
or storing construction materials outside of the right-of-way
and without a right of storage. Here, Defendants were
authorized to (and did) lay their pipelines and dredge canals
within the rights-of-way designated by the servitude
agreements. Thereafter, through erosion, the canals grew in
width to exceed the width of the rights-of-way. Allowing a
canal to slowly widen outside of a right-of-way stands in
stark contrast to an affirmative act taken without
authorization outside the bounds of a right-of-way.
Accordingly, this Court finds Plaintiffs' reliance on
these cases unconvincing.
Plaintiffs argue that the Defendants' negligence in
allowing the canals to widen outside of the bounds of the
right-of-way constitutes a trespass. They argue that under
Louisiana law a trespass can be brought about by a negligent
act. Plaintiffs cite to the Louisiana Fourth Circuit Court of
Appeal's opinion in Terre Aux Boeufs Land Co. v. J.R.
Gray Barge Co., which states that:
[C]ivil trespass is generally considered to be an intentional
tort, requiring proof that the defendant took some
intentional action that resulted in harm to the plaintiff. .
. . Nevertheless, some Louisiana courts have awarded damages
for illegal trespass on one's property, even when
committed in good faith. . . . Although the trespass itself
might be inadvertent, we find that a defendant generally may
not be held liable for trespass under Louisiana law in the
absence of evidence that the trespass resulted from some
intentional act taken by the defendant.
Nevertheless, there could be one situation in which a
defendant may be held liable for trespass even in the absence
of intent-i.e. when the plaintiff offers proof that the
defendant was at fault in causing the trespass pursuant to
the general tort article, La. C.C. art. 2315.
court in Terre Aux Boeufs Land Co. therefore
suggests that a party could be liable for the tort of
trespass even if it is caused by a negligent act. The
Louisiana Supreme Court has, however, cast doubt on such a
holding. In Hogg v. Chevron USA Inc., the
Court considered a case involving the underground migration
of toxic substances from a neighboring property, which
plaintiff alleged was a trespass. It stated that:
We note, without deciding the issue, that it is questionable
whether the tort of trespass even applies in this situation
because civil trespass is generally considered to be an
intentional tort, requiring proof that the defendant took
some intentional action that resulted in harm to the
plaintiff. It has been suggested that the action more
properly lies in nuisance.
the Louisiana Supreme Court has indicated that to succeed on
a trespass claim, the plaintiff must show that the trespasser
took some intentional, affirmative action. Although it has
not explicitly addressed whether Louisiana law recognizes a
claim for trespass caused by a negligent, passive act, this
Court finds that its best Erie guess is that it does
not. Just as in Hogg where the
alleged trespass was caused by the passive seeping of toxic
substances underground, here the alleged trespass was caused
by the passive work of erosion. Neither negligent act is
sufficient to support a claim of trespass. Such activity is
better addressed by a claim of negligence, and
Plaintiffs' claims for trespass are therefore dismissed.
next bring two distinct breach of contract claims: (1)
Defendants breached their duty in all of the servitude
agreements to maintain the canals and prevent their widening,
and (2) Defendants breached the 1970 Contracts by failing to
build a dam or bulkhead on the canals at issue in those
agreements. Defendants seek dismissal of Plaintiffs'
contract claims on two grounds: (1) that the claims are
prescribed, and (2) that the servitude agreements do not
create a duty to maintain the canals. In addition, Plaintiffs
have moved for summary judgment on each of their contract
claims. This Court will discuss each argument in regards to
both of Plaintiffs' contract claims.
Breach of Duty to Maintain
the first breach of contract claim, Defendants argue that
because they have never maintained the canals, prescription
began to run at the time the servitude agreements were
executed-the latest of which was in 1970. Breach of contract
claims are subject to a prescriptive period of ten years, and
Plaintiffs filed suit on December 18, 2015. Defendants
therefore contend that prescription has long since run on
each of Plaintiffs' contract claims. Plaintiffs argue,
among other things, that their contract claims are not
prescribed because Louisiana's suppletive rules on
servitudes apply to impose an ongoing duty to maintain the
canals. As discussed in detail below, this Court ultimately
holds that the suppletive rules do apply to the servitude
agreements at issue to impose a duty to maintain the canals.
It is well settled that such a duty is a continuing
one. “[T]he life of the duty of a
servitude owner not to aggravate the condition of the
servient estate by allowing a canal to widen is coextensive
with the life of the servitude.” Accordingly,
Plaintiffs' breach of contract claims as to
Defendants' failure to maintain the canals have not
Duty to Maintain
have filed a Motion for Summary Judgment, arguing that
pursuant to the servitude agreements, they have no obligation
to maintain the canals. Plaintiffs have likewise filed a
Motion for Summary Judgment, seeking a holding that the
Defendants breached the servitude agreements by failing to
maintain the canals. This Court will consider these arguments
concurrently as they relate to each servitude agreement.
1953 Contracts, 1958 Contract, 1964 Contract and 1970
outlined in detail above, the 1953 Contracts, the 1958
Contract, the 1964 Contract, and the 1970 Contracts contain
substantially similar language. Each allow the canals to be
left “open” but contemplate a maximum width of
those canals. Both parties argue that these servitude
agreements are clear and unambiguous as to whether Defendants
have a duty to maintain the canals and canal banks.
point to the portions of the agreements that allow the canals
to be left “open.” They argue that this language
unambiguously evinces the parties understanding that
Defendants had no obligation to maintain the canal banks.
They argue that while the contracts provide for an obligation
to maintain the pipelines, there is no such obligation for
the canals. They also argue that although the contracts state
that the canals shall not exceed a certain width, this