W&T OFFSHORE, L.L.C.
TEXAS BRINE CORPORATION AND TEXAS BRINE COMPANY, L.L.C.
WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT,
PARISH OF LAFOURCHE.
these consolidated applications, Texas Brine Corporation and
Texas Brine Company, L.L.C. seek review of a judgment of the
court of appeal which reversed the judgment of the district
court insofar as it dismissed the claims of W&T Offshore,
L.L.C. for trespass and damages. W&T Offshore, L.L.C.
v. Texas Brine Corp., 2017-0574 (La.App. 1 Cir.
5/10/18), 250 So.3d 970, 981. We granted certiorari and
received briefing and oral argument from the parties.
W&T Offshore, L.L.C. v. Texas Brine Corp.,
2018-0956 (La. 10/8/18), 253 So.3d 788, and 2018-0950 (La.
10/8/18), 253 So.3d 788.
the highly unique facts and unusual circumstances of this
case, a majority of this court has determined the district
court did not err in dismissing the trespass and damage
claims asserted by W&T Offshore, L.L.C. In reaching this
conclusion, we emphasize our holding is limited to the
precise and narrow facts before the court and should not be
interpreted expansively beyond the specific factual confines
judgment of the court of appeal is reversed insofar as it
held Texas Brine Corporation and Texas Brine Company, L.L.C.
committed a trespass and were liable for damages. The
judgment of the district court dismissing W&T Offshore,
L.L.C.'s trespass and damage claims with prejudice is
reinstated. In all other respects, the judgment of the court
of appeal is affirmed.
JOHNSON, Chief Justice, dissents.
WEIMER, J., dissenting.
nearly two centuries, Louisiana has maintained, as a cardinal
of civilian property law, that doubt as to the existence,
extent, or manner of exercise of a predial servitude should
be resolved in favor of the servient estate. The Latin phrase
in favorem libertatis (which can be traced back to
antiquity through the laws of Spain, France, and Rome which
form Louisiana's civilian legal heritage) has become
enshrined as a blackletter provision of the Louisiana Civil
Code. This bedrock civilian property law
principle was not altered in 1976 with the adoption of the
law of limited personal servitudes and, specifically, rights
of use. Nonetheless, the per curiam does not apply
this fundamental civilian property law concept in the context
of interpreting a right of use for "a pipeline."
Because the per curiam erodes, rather than preserves, this
long-held principle of the state's rich civil law
heritage and has the potential to detrimentally impact the
rights of landowners throughout the state, I am compelled to
1979, the owners of the property in question entered into a
"Salt and Underground Storage Lease" agreement that
granted a right of use for a pipeline in favor of the mineral
lessee, Texas Brine Corporation. A pipeline was constructed
on the property in 1980 and has since been used for the
transportation of salt and salt brine across the property. In
1993, W&T Offshore, L.L.C., purchased an undivided
interest in the property, subject to the right of use. In
2014, Texas Brine desired to construct a replacement pipeline
due to the obsolescence of the original pipeline.
Negotiations with the co-owners of the property ensued.
W&T declined to be a party to a 2015 "Pipeline
Right-of-Way" agreement that was executed in favor of
Texas Brine by the other co-owners. Despite the lack of
unanimity among co-owners, Texas Brine constructed a
significantly larger volume replacement pipeline in a
different location on the property in accordance with the
2015 right-of-way agreement with the other co-owners.
case addresses whether the right-of-use provision contained
in the 1979 lease, which authorized the construction of
"a pipeline" on a portion of the property, allows
for the construction of a replacement pipeline with a larger
diameter in another location on the property.
begin, as we must, with the words of the code.
reviewing the law on rights of use, civilian methodology and
the Civil Code instruct that the sources of law are
legislation and custom and legislation is the superior source
of law. La. C.C. arts. 1 and 3. See Wede v.
Niche Mktg. USA, LLC, 10-0243, p. 7 (La. 11/30/10), 52
So.3d 60, 64. Legislation, which is defined as the solemn
expression of legislative will (La. C.C. art. 2), is to be
interpreted according to the rules set forth in the Civil
Code. La. C.C. arts. 9-13. See Wede,
10-0243 at 7, 52 So.3d at 64. Chief among those rules is the
admonition in La. C.C. art. 9 that "[w]hen a law is
clear and unambiguous and its application does not lead to
absurd consequences, the law shall be applied as written and
no further interpretation may be made in search of the intent
of the legislature." Additionally, La. C.C. art. 11
instructs that "[t]he words of a law must be given their
generally prevailing meaning." Further, La. C.C. art. 13
provides: "Laws on the same subject matter must be
interpreted in reference to each other." Reading the
various codal provisions involved and giving effect to each
is the key to resolving this matter. See Wede,
10-0243 at 7, 52 So.3d at 64.
begin, therefore, with the words of the applicable codal
provisions-La. C.C. arts. 639 through 645. Central to the
resolution of this case is La. C.C. art. 642, which provides:
A right of use includes the rights contemplated or necessary
to enjoyment at the time of its creation as well as rights
that may later become necessary, provided that a greater
burden is not imposed on the property unless otherwise
stipulated in the title.
La. C.C. art. 642 has been the law since 1977,  courts have
rarely been called on to evaluate this codal provision.
Brine argues that Article 642 displaced the general predial
servitude provisions that favor an interpretation of
virtually unrestricted use of the servient estate by
affording a superior right to the personal servitude holder
similar to the German and Greek provisions (B.G.B. §
1091 and Greek Civil Code art. 1189, respectively, quoted
infra) on which Article 642 is reportedly based.
See La. C.C. art. 642, 1976 Revision Comment.
Although the German and Greek codal provisions favor the
owners of the right of use, Texas Brine's argument
overlooks the difference in the language of La. C.C. art. 642
and the Greek and German codal provisions.
La. C.C. art. 642 begins by extending the rights of the
holder of a limited personal servitude. Its reference to
"the rights contemplated or necessary to enjoyment at
the time of its creation as well as rights that may later
become necessary" is similar to the Greek and German
provisions in which the needs of the person having the right
of use are recognized. However, the "proviso
clause" which follows ("provided that a greater
burden is not imposed on the property") imposes a
restriction and modification on the rights of the servitude
there is a gap in the laws on rights of use, La. C.C. art.
645, a sibling article to La. C.C. art. 642, directs:
A right of use is regulated by application of the rules
governing usufruct and predial servitudes to the extent that
their application is compatible with the rules governing a
right of use servitude.
the codal provisions related to predial servitudes should be
consulted when evaluating rights of use. Specifically on
point is La. C.C. art. 730, titled "Interpretation of
servitude," which states: "Doubt as to the
existence, extent, or manner of exercise of a predial
servitude shall be resolved in favor of the servient
year after the enactment of the rights-of-use provisions, the
legislature in 1977 La. Acts 514, § 1, effective January
1, 1978, amended and reenacted the laws on predial
servitudes, reproducing the substance of La. C.C. art. 753
(1870) in La. C.C. art. 730-indicating there was no intent to
change the law. See La. C.C. art. 730, 1977 Revision
Comment (a). In pertinent part, the 1977 Revision
Comments to La. C.C. art. 730, obviously penned by the late
Professor A.N. Yiannopoulos,  provide:
(b) It is a cardinal rule of interpretation that, in case of
doubt, instruments purporting to establish predial servitudes
are always interpreted in favor of the owner of the property
to be affected. The rule incorporates into Louisiana law the
civilian principle that any doubt as to the free use of
immovable property must be resolved in favorem
libertatis. See Domat, Les lois civiles dans
leur ordre naturel, 1 Oeuvres de Domat 329 (ed. Remy 1828); 2
Toullier, Droit civil français 192 (1833). The
Louisiana Supreme Court has repeatedly declared that
"servitudes are restraints on the free disposal and use
of property, and are not, on that account, entitled to be
viewed with favor by the law." Parish v.
Municipality No. 2, 8 La.Ann. 145, 147 (1853), cited
with approval in Buras Ice Factory, Inc. v. Department of
Highways, 235 La. 158, 103 So.2d 74 (1958). See
also McGuffy v. Weil, 240 La. 758, 767, 125
So.2d 154, 158 (1960): "any doubt as to the
interpretation of a servitude encumbering property must be
resolved in favor of the property owner." The rule that
the proper interpretation of an ambiguous instrument is that
which least restricts the ownership of the land has been
applied by Louisiana courts in a variety of contexts.
See, e.g., Whitehall Oil Co. v. Heard, 197
So.2d 672 (La.App.3rd Cir.), writ
refused, 250 La. 924, 199 So.2d 923 (1967)
(determination of the question whether a landowner created a
single servitude over contiguous tracts or a series of
(c) "Servitudes claimed under titles, are never
sustained by implication-the title creating them must be
express, as to their nature and extent, as well as to the
estate to which they are due." Parish v.
Municipality No. 2, 8 La.Ann. 145, 147 (1853), cited
with approval in Buras Ice Factory, Inc. v. Department of
Highways, 235 La. 158, 103 So.2d 74 (1958).
La. C.C. art. 730, 1977 Revision Comments (b) and (c).
interpretation suggested by Texas Brine, and accepted by the
lower courts and affirmed by this court's per curiam as
to the pipeline at issue in this case,  relies on the
similarities between the first portion of La. C.C. art. 642
and the Greek and German codal provisions, but ignores the
proviso clause. Clearly, the Louisiana Legislature did not
intend for La. C.C. art. 642 to be as expansive as the German
and Greek codal provisions. If the Louisiana Legislature had,
there would have been no need to add the proviso clause. In
summary, although Article 642, in its first part, expands the
rights of the holder of a right of use by including "the
rights contemplated or necessary to enjoyment at the time of
creation as well as the rights that may later become
necessary," the servitude holder's rights are
limited by the ensuing clause "provided that a greater
burden is not imposed on the property." The modifying
proviso is consistent with the long recognized civilian
principle in favorem libertatis embodied in La. C.C.
art. 730. Clearly, La. C.C. art. 642 was not designed to
completely abolish the longstanding civilian predial
servitude principle in the context of limited personal
servitudes to the detriment of the landowner and benefit of
the servitude holder. The second clause in La. C.C. art. 642,
the proviso, is followed by a recognition of the parties'
freedom to contract otherwise ("unless otherwise
stimulated in the title").
Brine contends that it had the right to construct a larger
replacement pipeline under the 1979 agreement and under La.
C.C. art. 642. Accordingly, the agreement between the parties
should be evaluated, applying blackletter law, and the
cardinal rule of interpretation in favor of the owner of the
property to be affected to determine if the agreement
afforded Texas Brine the right to construct replacement
pipelines in the future.
of the Applicable Provisions in the Agreement
1979 lease agreement was for a term of "ten (10) years
(the 'primary term') from the date entered into and
so long thereafter as salt or salt brine are produced
from" the leased property. The provision in the lease
agreement that creates the right of use in question provides:
Lessee shall have the right to construct, operate and
maintain a pipeline for the transportation of brine over and
across additional property of Lessor comprising the North
one-half (½) of Section 64 and all of Section 59,
Township 15 South, Range 15 East, Parish of LaFourche,
Louisiana, on such portion of the property as designated by
Lessee and as approved by Lessor, such approval not to be
unreasonably withheld. Lessee shall pay an additional
consideration of ONE HUNDRED AND NO/100 ($100.00) DOLLARS per
rod for such pipeline right-of-way. [Emphasis added.]
agreement does not indicate the anticipated life span of the
pipeline or the estimated term for production of salt or salt
brine, nor does it directly address larger replacement
rules of contract interpretation dictate that intent is
determined by the words of a contract. See La. C.C.
art. 2046 ("When the words of a contract are clear and
explicit and lead to no absurd consequences, no further
interpretation may be made in search of the parties'
the literal language, the clear and explicit words of the
agreement contemplated construction of "a
pipeline." The words of the agreement specify a single
pipeline, not multiple pipelines. With the construction of a
larger replacement pipeline on the landowner's property,
where there was previously "a pipeline," there are
now "two pipelines." The fact that only one of the
pipelines is actually being used to transport brine over and
across the landowner's property does not detract from the
fact that there are now two pipelines on the property. Two
pipelines are twice the number and twice the burden on the
property authorized by the agreement. The right-of-use
provision in the lease agreement is simplistically clear and
explicit-only "a pipeline" is contemplated.
in the absence of a limitation on the size or specification
of the location of the pipeline, Texas Brine argues, and the
courts have agreed, that Texas Brine has broad rights under
the 1979 right-of-use provision to determine the size and
placement of the pipeline. However, the right-of-use
provision directs that the pipeline is to be located on a
"portion" of the specified area. Again, a
single portion of the property is to be burdened with a
pipeline, not various portions of the property burdened with
numerous pipelines. Clearly, the right-of-use provision does
not make the entirety of the specified area available to
Texas Brine for placement of the original pipeline and,
thereafter, subject the property to construction of
replacement pipelines desired by Texas Brine in the future.
Upon the placement of the original pipeline in 1980 (based on
Texas Brine's designation and the landowner's
consent) the exact location and the extent and width of Texas
Brine's servitude was made certain, limiting the
servitude to the smaller area actually needed for the
construction of the single, original pipeline. See
J.C. Trahan Drilling Contractor, Inc. v. Younger,
169 So.2d 15, 18 (La.App. 2 Cir. 1964); Dickson v.
Arkansas Louisiana Gas Co., 193 So. 246, 249 (La.App. 2
Cir. 1939). The facts establish that Texas Brine's
pipeline servitude was 9, 000 feet long and 14 inches in
diameter, with the right of ingress and egress for the
purpose of operations under the lease.
language in the right-of-use provision corroborates that
"a pipeline" was meant to be one pipeline. The
agreement establishes the right to "construct, operate
and maintain a pipeline for the transportation of
brine." "Maintain" is "to keep in an
existing state (as of repair, efficiency, or validity):
preserve from failure or decline (~ machinery)."
Webster's Ninth New Collegiate Dictionary 718 (1988). The
New Oxford American Dictionary 1030 (2001) defines
"maintain" as "keep (a building, machine, or
road) in good condition or in working order by checking or
repairing it regularly." Constructing the new larger,
replacement pipeline in a completely different location is
not consistent with an agreement that bestowed the right to
"maintain a pipeline."
appellate court correctly recognizes that "the 1979
lease does not include specific language regarding the
replacement of the original pipeline" due to
obsolescence.W & T Offshore, L.L.C. v. Texas
Brine Corp., 17-0574, 17-0575, p. 14 (La.App. 1 Cir.
5/10/18), 250 So.3d 970, 979. However, the language in the
right-of-use provision of the lease agreement is "clear
and explicit" as to the rights granted to Texas Brine.
Pursuant to the right-of-use provision, Texas Brine's
rights were limited to "the right to construct, operate
and maintain a pipeline for the transportation of
brine." Any uncertainty as to the extent and manner of
Texas Brine's 1979 right of use was made certain by the
construction of the original pipeline. Pursuant to
the express language in the right-of-use provision, Texas
Brine did not have authority to construct a replacement
pipeline, much less a larger replacement pipeline in another
location. A contrary interpretation of the 1979 right-of-use
agreement would result in the sustaining of a servitude
claimed under title by implication, which is not