FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO.
257, 060 HONORABLE PATRICIA E. KOCH, DISTRICT JUDGE
M. Wilson Kelly Brechtel Becker Katherine Seegers Roth Jaclyn
E. Hickman Liskow & Lewis COUNSEL FOR
PLAINTIFF/APPELLANT: Acadian Gas Pipeline System
Brenner Sadler Provosty, Sadler, deLaunay, APC COUNSEL FOR
DEFENDANTS/APPELLEES: Oliver Liecht McMickens Ricky Loren
McMickens Mark R. McMickens Neal L. McMickens Scott A.
composed of Billy Howard Ezell, Phyllis M. Keaty, and Van H.
expropriation litigation, the plaintiff, Acadian Gas Pipeline
System,, appeals from the trial court judgment in favor of
the defendant landowners, denying its expropriation of a
right-of-passage servitude through the landowners'
property. For the following reasons, we affirm.
OF THE RECORD
October 10, 2016, the plaintiff, Acadian Gas Pipeline System
(Acadian), filed suit, seeking to acquire a perpetual
servitude, in the form of a non-exclusive right-of-passage,
across a 1, 405-acre tract of land owned by the Defendants,
Oliver Liecht McMickens, Ricky Loren McMickens, Mark R.
McMickens, Neal L. McMickens, and Scott A. McMickens
(referred to collectively as "the Defendants"). The
property is located in Rapides Parish, just outside of
Alexandria, Louisiana. The purpose of the servitude is to
provide Acadian with access to and from its pipeline, which
runs from east to west across the southernmost portion of the
a March 16, 2017 bench trial, the trial court took the matter
under advisement, then on August 31, 2017, it issued written
reasons for ruling and signed a judgment denying
Acadian's expropriation request. Notice of judgment was
mailed to the parties on September 1, 2017. On September 12,
2017, Acadian filed a motion for new trial. The next day, the
trial court wrote the word "Denied" diagonally
across the proposed show-cause order and included the
notation, "written reasons given," apparently to
indicate that it had issued written reasons for its August
31, 2017 judgment. No hearing was held on the motion for new
trial, and no written reasons regarding the motion appear in
the appellate record. Subsequently, a hearing was held to
address issues involving costs and attorney fees, and those
issues were disposed of in a judgment rendered on October 30,
2017. That same day, Acadian filed a motion to appeal the
trial court's August 31, 2017 judgment.
January 31, 2018, this court issued a rule for Acadian to
show cause why its appeal should not be dismissed as being
premature. Thereafter, we dismissed Acadian's appeal,
[T]he notation "Denied" written on the rule to show
cause order does not constitute a valid judgment. Since the
trial court did not conduct a hearing or sign a judgment
properly disposing of the motion for new trial, we find that
the appeal order signed on October 30, 2017, was premature
and that the trial court was not divested of its
jurisdiction. Having concluded that we lack jurisdiction over
this appeal, we find that the appeal must be dismissed and
remanded to the trial court for consideration of Plaintiff s
motion for new trial.
Acadian Gas Pipeline System v. Oliver Liecht
McMickens, 17-1158, pp. 3-4 (La.App. 3 Cir. 1/31/18)
remand, Acadian moved for a judgment denying its motion for
new trial, after which the trial court rendered a judgment
denying the motion on February 9, 2018. Thereafter, Acadian
again filed a motion to appeal the trial court's August
31, 2017 judgment.
appeal, Acadian raises three assignments of error committed
by the trial court:
1. The trial court erroneously denied expropriation by
misallocating the burden of proof, forcing Acadian to prove
its good faith and stripping it of the presumption of good
faith that, until this decision, an expropriator has enjoyed
under Louisiana law.
2. The trial court erroneously denied expropriation by
applying the wrong legal standard for expropriation. It
discarded the well-established Red River standard
for the selection of the location and extent of the property
to be expropriated, in favor of criteria that do not exist
under Louisiana law.
3. The trial court's errors in denying expropriation
resulted in an additional error: the failure to make any
factual findings on the just compensation due to the
Defendants for the expropriation of their property.
response to this appeal, the Defendants filed a motion to
strike and for a partial dismissal of Acadian's appeal,
arguing that the issue of compensation due to the Defendants
was not properly before this court since no judgment was
rendered on that issue by the trial court. Acadian opposed
this motion, and the matter was referred to the merits of the
person has the right to acquire, own, control, use, enjoy,
protect, and dispose of private property." La.Const.
art. 1, § 4(A). However, private property is subject to
expropriation by a public entity when it is needed "for
public purposes" and when just compensation is paid to
the owner. La.Const. art. 1, § 4(B)(1). Private
entities, when authorized by law, are also entitled to
expropriate private property, such as in the case of Acadian,
which was created for the purpose of building a pipeline to
supply natural gas to the public. La.Const. art. 1 §
4(B)(4); La.R.S. 19:2(5). "[W]hether the purpose"
of the expropriation is "public and necessary" is a
determination made by the trial court, which finding will not
be reversed absent manifest error. La.Const. art. 1, §
4(B)(5); Lafayette City-Parish Consol. Gov't v.
Person, 12-307 (La. 10/16/12), 100 So.3d 293.
applicable to expropriation by a private entity was addressed
by the supreme court in Exxon Mobil Pipeline Co. v. Union
Pacific Railroad Co., 09-1629, pp. 12-13 (La. 3/16/10),
35 So.3d 192, 200, wherein it stated:
In challenges to the necessity of a taking, the landowner
must prove that the legislatively-authorized expropriator
exercised "its large discretion" arbitrarily,
capriciously, or in bad faith. Red River Waterway Com
'n v. Fredericks, 566 So.2d 79, 83 (La. 1990).
Whether the expropriator's purpose is public and
necessary is a judicial determination that will not be
reversed on appeal absent manifest error.
Calcasieu-Cameron Hosp. Serv. Dist. v. Fontenot, 628
So.2d 75, 78 (La, App. 3d Cir.1993), writ denied,
94-0168 (La.3/18/94), 634 So.2d 854. In the context of
expropriation, "necessary" refers to the necessity
of the purpose for the expropriation not the necessity for a
specific location. Calcasieu-Cameron Hosp. Serv.
Dist., 628 So.2d at 78. Once public necessity is
established, the extent and the location of property to be
expropriated are within the sound discretion of the
expropriation authority and determination of same will not be
disturbed by the courts if made in good faith. Id.
The criteria to be considered by the expropriator in
determining the location and extent of the property to be
expropriated includes factors such as costs, environmental
impact, long range area planning, and safety considerations.
Red River Waterway Com 'n, 566 So.2d at 83
(citing U.S. v. Carmack, 329 U.S. 230, 67 S.Ct. 252,
91 L.Ed. 209 (1946)). The amount of land and the nature of
the acreage taken must be reasonably necessary for purpose of
the expropriation, but it is not necessary "to show
actual, immediate, and impending necessity for the
expropriation." City of New Orleans v.
Moeglich, 169 La. 1111, 126 So. 675, 677 (1930). The
suitability of the property for expropriation is primarily a
question of fact on which the judgment of the trial court
will not be disturbed unless manifestly erroneous. Board
of Com 'rs of New Orleans Exhibition Hall v. Missouri
Pacific R. Co., 625 So.2d 1070, 1073 (La.App. 4th
Cir.1993), writ denied, 93-3088, 93-3100 (La.
1/28/94), 630 So.2d 802. By statute, expropriation of
property for common carrier pipe line purposes may include
"the real estate, rights of way, pipe in line, telephone
and telegraph lines or other communication systems, tank
facilities . . . necessary for the proper conduct of its
business as a common carrier, all fixtures, equipment and
personal property of every kind owned, controlled, operated,
used or managed, in connection with, or to facilitate the
transportation, distribution and delivery of petroleum
through lines constructed of pipe." La.Rev.Stat.
45:251(3) (emphasis supplied).
Calcasieu-Cameron Hospital Service District v.
Fontenot, 628 So.2d 75, 78-79 (La.App. 3 Cir. 1993),
writ denied, 94-168 (La. 3/18/94), 634 So.2d 854,
this court further explained:
[T]he extent and location of the property to be
expropriated are within the sound discretion of the body
possessing the power of eminent domain, and these
determinations will not be interfered with by the courts if
made in good faith. Greater Baton Rouge Port Comm 'n.
v. Watson, [244 La. 136');">244 La. 136, 68 So.2d 901 (1953)]; Board
of Comm'rs. of Tensas Basin Levee Dist. v. Franklin,
219 La. 859, 54 So.2d 125 (1951); Evangeline Parish
Police Jury v. Deville, [247 So.2d 258 (La.App. 3d Cir.
1971)]. Questions such as the location of the expropriation,
the extent of the property taken, the nature of the title to
be taken, and the wisdom of pursuing the particular
improvement project relate to the necessity of the taking.
The standard is whether the expropriator, in selecting the
location and extent of the property to be expropriated, acted
in bad faith or so capriciously or arbitrarily that its
action was without an adequate determining principle or was
unreasoned. Criteria to be considered by the expropriator
include the availability of an alternate route, costs,
environmental factors, longrange area planning, and safety
considerations. The expropriating agency may abuse its
discretion by acting without considering and weighing the
relevant factors, that is, by acting arbitrarily. Red
River Waterway Comm'n. v. Fredericks, 566 So.2d 79
(La. 1990), and authorities cited therein. However, the mere
availability of a feasible alternative location is not, by
itself, an indication that the expropriator has acted
arbitrarily or capriciously in making its selection.
Faustina Pipe Line Co. v. Levert-St. John, Inc., 463
So.2d 964 at 969 (La.App. 3d Cir.), writ denied, 466 So.2d
1301 (La. 1985), quoting Louisiana Resources Co. v.
Stream, 351 So.2d 517 (La.App. 3d Cir.1977).
standard of review applicable to civil matters was stated by
this court in Moncriefv. Succession of Armstrong,
05-1584, p. 10 (La.App. 3 Cir. 9/27/06), 939 So.2d 714, 720,
The standard of appellate review of factual findings in a
civil action is the manifest error/clearly wrong standard,
and factual findings should not be reversed absent manifest
error or unless they are clearly wrong. Rosell v.
ESCO,549 So.2d 840 (La. 1989). If the trial court's
findings are reasonable in light of the record reviewed in
its entirety, the reviewing court may not reverse.
Sistler v. Liberty Mut. Ins. Co.,558 So.2d 1106
(La.1990). Consequently, when there are ...