Opinion
Civil Action NO. 98-2095, Section "C" (4).
February 22, 2001.
ORDER AND REASONS
Before the Court is the Motion of Defendant Koch Gateway Pipeline Company ("Koch") for Summary Judgment (Rec. Doc. 97). The Court heard oral argument on this Motion on July 5, 2000, and took the matter under submission. In light of the fact that a related case, St. Martin v. Mobil Exploration Producing Co., was pending before the Fifth Circuit at that time, the Court deferred ruling on this and other pending motions. (Rec. Doc. 112). After the Fifth Circuit released its decision, 224 F.3d 402 (5th Cir. 2000), and denied rehearing of its decision en banc, 234 F.3d 31 (5th Cir. 2000), the Court directed counsel to provide briefing regarding the impact of the Mobil decision on this case. (Rec. Doc. 115). The Court renoticed this Motion, along with several others, for hearing with oral argument on January 31, 2001. (Rec. Doc. 153). After considering the arguments of counsel, the record and the applicable law, IT IS ORDERED that Defendant Koch's Motion for Summary Judgment is HEREBY GRANTED.
Background
On June 23, 1992, Plaintiffs, Virginia Rayne and Michael X. St. Martin, purchased property in Terrebone Parish, which is the subject of this litigation. The property is contiguous to the land upon which Plaintiffs maintain their personal residence, and connects their residence to the Mandalay National Wildlife. Specifically, the St. Martins allege that Southdown Sugars, Inc., Plaintiffs' predecessor in interest, granted United Gas Pipe Line Co. ("United Gas"), Koch's predecessor in interest, a right of way dated June 13, 1951, which provided United Gas (and now Koch) with the right to construct and operate a natural gas pipe line on Plaintiffs' property. The agreement stated that the right-of-way would be one hundred feet in width, and Koch was granted the right to dig a canal not to exceed forty feet in width.
Since 1951, the canal has grown from its original width of forty feet to its current width of approximately seventy feet. Although the parties do not dispute that the Koch canal is now approximately seventy feet wide, Defendant insists that it was and is under no obligation to maintain the canal at its original width of forty feet. Plaintiffs, on the other hand, assert that the Koch Canal is in violation of the 1951 right-of-way and easement, and seek to enforce the servitude. In addition to its contractual claims, Plaintiffs' complaint also brings claims against Koch sounding in tort for the damages caused to his property as a result of the widening of the canal. Standard of Review
In its motion for summary judgment, Koch also addressed any claim of trespass contained in Plaintiffs' complaint. Plaintiffs did not respond to these argument in its opposition to Koch's motions for summary judgment, and focused instead on the contract-and tort-based claims. Therefore, Defendant's motion as it pertains to claims of trespass is GRANTED as unopposed and as having merit.
A district court can grant a motion for summary judgment only when the "`pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). When considering a motion for summary judgment, the district court "will review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). The court must find "[a] factual dispute . . . [to be] `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party . . . [and a] fact . . . [to be] `material' if it might affect the outcome of the suit under the governing substantive law." Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citingAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
"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." Engstrom v. First Nat'l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995) (citing Celotex, 477 U.S. at 322-24, and Fed.R.Civ.P. 56(e)). The mere argued existence of a factual dispute will not defeat an otherwise properly supported motion.See Anderson, 477 U.S. at 248. "If the evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. Id. at 249-50 (citations omitted). The Court finds that the dispositive issues in this case are questions of law rather than fact, for which summary judgment is appropriate.
Analysis Part 1: Contract
"When a servitude is established by contract, the extent and mode of using the servitude is regulated by the contract." Ryan v. Southern Nat. Gas, 879 F.2d 162, 164 (5th Cir. 1989). The plain and unambiguous terms of the contract therefore apply. See id. The terms of the servitude clearly permit Koch to maintain an "open" ditch canal. According to the right of way agreement signed in 1951, the grantee (Koch) "shall have the right to lay such pipe line or lines in open ditches or canls [sic] not to exceed forty (40) feet in width, which may be left open. . . ." See Plaintiffs' Opposition Memorandum Exh. A-1. This provision gave the grantee a zone of forty feet, within which it could lay its pipe line and otherwise be free from interference by the owner of the dominant estate (i.e., St. Martin). The contract also provides that the grantee shall "pay any damage which arise to the property, growing crops, fences, or timber from the construction, maintenance and operation of said pipe lines."See id. (emphasis added). The agreement granted United Gas, and by succession, Koch, "a right of way and easement to construct, maintain, operate, repair, replace, change of the size thereof and remove pipe lines and appurtenances thereto. . . ." See i.d. (emphasis added).
Plaintiffs insist that this servitude also imposed upon Koch a duty to maintain the canal at its original width of forty feet. However, the actual contract does not support the contention that such an obligation exists. Koch clearly had a duty to maintain the pipe lines and compensate the Plaintiffs for any damage caused by a failure to do so, but there is no allegation that Plaintiffs' damages were suffered, for example, as a result of leakage from the pipe line. Rather, the damage to Plaintiffs' marshland results from the continuous flow of water through the canal due to its having "remained open" — that is, not having been dammed at both ends. However, Koch was specifically granted the right to keep the canal open through the language of the servitude agreement cited above.
The Ryan court considered an almost identical situation. There, the plaintiff claimed that the defendant had a duty to dam an open canal on its property. The plain words of the servitude contract, however, gave the defendant the option to leave the canal "open." An examination of the lower court opinion in Ryan makes it clear that the parties had contemplated that erosion might result from leaving the canal open, and had even memorialized a "letter agreement" providing that the defendant would compensate the plaintiff at the rate of $400 per acre "in the event the banks of the canal . . . shall at any time in the future slough or widen so that the canal encroaches on lands owned by [plaintiff] not within the boundaries of the 50-foot wide right of way. . . ." Ryan, 1987 WL 19044 at *2. Nevertheless, the Fifth Circuit found that the clear terms of the servitude allowing the canal to remain open overrode any other duty that may have been incumbent upon the defendant and thereby obviated any duty to fill the canal or pay for the damages caused by the canal's widening through erosion. See Ryan, 879 F.2d at 164. Specifically, the Court held
The right of way agreement in Ryan provided in relevant part: "The Grantee is given the right to use the right of way granted above for the purpose of constructing a canal or ditch, which canal or ditch is not to exceed 40 feet in width and which canal or ditch may, at Grantee's option, be left open. . . ." Ryan v. Southern Nat. Gas, 1987 WL 19044 at *2 (E.D.La. 1987).
Article 697, Louisiana Civil Code, makes it clear that the duty imposed on the servitude owner by article 745 to avoid unreasonable damage to the dominant estate is subject to the provisions of the instrument creating the servitude: "The use and extent of such servitudes are regulated by the title by which they are created, and in the absence of such regulation, by the following rules." . . . . We conclude therefore that any duty SNG had under article 745 did not include the duty to dam the canal because SNG was relieved of that specific duty under the servitude agreement.Id.
Another related case makes it clear to the Court that the parties in this matter could have, but chose not to, protect any rights the dominant landowner might have had with regard to the widening of the canal. In St. Martin v. Mobil Exploration Producing Co., 1998 WL 474211(E.D.La. 1998), Judge Livudais found that the defendant had an ongoing obligation to maintain the width of the canal. However, in that case, the servitude agreement specifically stated that "Grantor does hereby convey to Grantee, its successors and assigns, the right and servitude to dredge, construct and maintain and use a canal having a width of 65 feet." See id. at *4. Unlike this case, where the grantee's obligation was only to maintain the pipe line, in Mobil, the grantee has a duty to maintain the width of the canal. Both the Ryan and Mobil agreements were executed contemporaneously with the servitude at issue in this case. Therefore, it is clear to the Court that those companies and individuals who were parties to these types of contracts knew how to protect their rights and how to craft language reflecting the exact nature of the rights and obligations the right of way was meant to bestow. In this case, Koch's duty was simply to maintain its pipe line, not to maintain the width of the canal at forty feet. Koch has not breached its duties under the servitude agreement, and therefore, Plaintiffs' contractual claims based on the servitude agreement must fail.
Part 2: Tort
Plaintiffs knew of the widening canal well over one year before instituting this action. Therefore, in order for Plaintiffs' claim to survive Koch's statute of limitations defense, they argue that Defendant's conduct qualifies a continuous tort. In South Central Bell Tel. Co. v. Texaco, 418 So.2d 531 (La. 1982), upon which Plaintiffs rely to sustain this cause of action, the defendant allowed leaking gasoline to seep out of its tanks, which damaged the plaintiffs telephone wires on an ongoing basis. However, in this case, nothing has leaked from Koch's pipelines causing the erosion of the marshland as an initial matter or on an ongoing basis. The continuous widening of the canal and the related destruction of the St. Martins' marshland are not the result of any ongoing harmful conduct by the Defendant. At oral argument, counsel acknowledged that the water flowing through the canal is what continues to cause the erosion, not anything related to Koch's use of its pipe line. Therefore, this Court finds South Central Bell inapposite to this case, and finds no continuous tort.
Louisiana Civ. Code Art. 3492, with its one-year statute of limitations, controls Plaintiffs' claims sounding in tort.
Consequently, Defendant's allegedly tortious conduct must be the construction of the pipe line canal itself. However, the canal was constructed decades ago, meaning that any tortious conduct by the Defendant definitively abated more than one year prior to the filing of this suit, regardless of whether there are continuing damages as a result of the canal's existence. See Mouton v. State of Louisiana, 525 So.2d 1136, 1141-42 (La.App. 1st Cir. 1988); Badalamenti v. Chevron Chem. Co., 1995 WL 386868 (E.D.La. 1995). Accordingly, the prescription period ran from the time that the St. Martins knew or should have known of the problem — i.e., the erosion of the marshland caused by the flow of water through the canal. Even using the date that would be most generous to the Plaintiffs — May, 1996, which is when Plaintiffs began writing letters to the various defendants in this case — it is clear that the suit was time-barred when filed in 1998. Therefore, Plaintiffs' claims for damages sounding in tort also fail.
In light of the Court's decision to grant summary judgment for the Defendant on all counts, any pending motions before the Court in this matter are hereby DISMISSED AS MOOT.
Still pending before the Court at the time of this ruling were Rec. Docs. 94 (Plaintiffs' Motion in Limine regarding experts), 95 (Defendant's Motion in Limine regarding experts), 121 (Plaintiffs' Motion for partial summary judgment), 168 (Motion in Limine regarding rents and royalties), and 187 (Motion to Reconsider Magistrate Roby's February 6, 2001 Order). All of these motions are DISMISSED AS MOOT.
IT IS SO ORDERED.