Opinion
No. 2021-OC-01735
01-19-2022
4 C'S LAND CORPORATION, Jimmy Cantrelle Land Company, LLC, James Cantrelle and Leona Cantrelle v. COLUMBIA GULF TRANSMISSION COMPANY and Industrial Helicopters, LLC.
Writ application denied.
Genovese, J., would grant and assigns reasons.
Weimer, C. J., recused.
GENOVESE, J., WOULD GRANT AND ASSIGNS THE FOLLOWING REASONS:
In this case, Plaintiffs, 4 C's Land Corporation, Jimmy Cantrelle Land, Company, LLC, and James and Leona Cantrelle ("Plaintiffs") filed suit against Defendant, Columbia Gulf Transmission Company, alleging a trespass on its property and a breach of the servitude agreement by the aerial application of chemical herbicides to the properties, both inside and outside the servitude boundaries. Plaintiffs sought compensation for injuring and killing of trees and vegetation on its property.
Plaintiffs also named Industrial Helicopters, LLC, as a defendant, contending it applied the herbicide and is liable in solido with Columbia. However, the claims against Industrial Helicopters, LLC, were not at issue in the appeal from which the writ application was taken.
The reason for my decision to "grant" Plaintiffs’ writ is based on the alleged damage within the servitude boundaries.
Defendant filed a motion for partial summary judgment, asserting that since the servitude agreement was silent as to how it could maintain the servitude, the agreement should not be construed to prohibit the use of the application of herbicides. The trial court granted Defendant's motion for partial summary judgment, and the First Circuit Court of Appeal denied writs.
I agree with the trial court that the essence of the servitude agreement was to maintain the area of the pipeline which included the right to keep the area clear of vegetation and tree growth; however, I find fault with the granting of a partial summary judgment conveying unfettered rights to Defendant to do with the servitude what it wants in keeping the servitude clean and clear of obstruction. There are limits in the use of a servitude. The actions of Defendant in clearing and cleaning the servitude must be tempered with reasonableness. Defendant cannot simply destroy all vegetation in its use of the servitude. Defendant's action must succumb to a reasonableness standard its use of the servitude. Some of the destruction to the property after aerial application of the poisonous herbicides has the potential of destroying vegetation long after the life of servitude.
I would reverse the grant of the motion for partial summary judgment based on the fact that Defendant is not entitled to unabridged poisoning of vegetation in its use of pesticides as a matter of law. Plaintiffs should at the very least be allowed a hearing on the reasonableness of the method employed by Defendant in altering the vegetation on its property with an eye toward use of the servitude. It is a balancing test. The right under a servitude is not the right to destroy the property upon which a servitude is granted.