Judgment rendered October 2, 2024. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 55,916-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
***** ENABLE MIDSTREAM Plaintiff-Appellee PARTNERS, LP
versus
LOUISIANA ENERGY Defendant-Appellant GATEWAY LLC
***** Appealed from the Forty-Second Judicial District Court for the Parish of DeSoto, Louisiana Trial Court No. 84,243
Honorable Amy Burford McCartney, Judge
*****
ETHAN P. ARBUCKLE Counsel for Appellant
PHELPS DUNBAR, LLP By: H. Alston Johnson, III Brad M. Boudreaux Kevin W. Welsh Stephen R. Vick, Jr. Anthony J. Gambino, Jr. Jordan P. Zeringue Nena M. Eddy
BRADLEY, MURCHISON, Counsel for Appellee, KELLY & SHEA, LLC Enable Midstream By: Kay Cowden Medlin Partners, LP Leland G. Horton Joshua S. Chevallier Ashley G. Gable LIZ MURRILL Counsel for Appellee, Louisiana Attorney General State of Louisiana
WARREN B. BATES, JR. Assistant Attorney General
GORDON, ARATA, MONTGOMERY, Counsel for Appellees, BARNETT, MCCOLLAM, DUPLANTIS American Petroleum Institute & EAGAN, LLC and Interstate Natural Gas By: Clinton P. Hayne, Jr. Association of America Scott A. O’Conner
CARVER, DARDEN, KORETZHY, Counsel for Appellee, TESSIER, FINN, BLOSSMAN & Louisiana Landowners AREAUX, LLC Association, Inc. By: Brandon T. Darden
Before COX, ROBINSON, and ELLENDER, JJ. COX, J.
This appeal arises out of DeSoto Parish, Louisiana. Louisiana Energy
Gateway, LLC (“LEG”) appeals a preliminary injunction granted in favor of
Enable Midstream Partners, LP (“Enable”). For the following reasons, we
reverse the trial court’s judgment.
FACTS
On July 24, 2023, Enable filed a petition for a temporary restraining
order, preliminary injunction, and permanent injunction to prevent LEG
from interfering “with its property rights and natural gas pipeline
operations[.]”
On February 26, 2010, Enable’s predecessor, CenterPoint Energy
Field Services, entered into a pipeline agreement with Dorothy and James
Ricks, which grants an “exclusive fifty foot (50’) wide” pipeline easement
on property in Section 1, Township 12 North, Range 13 West in DeSoto
Parish (“Enable Ricks Servitude”). CenterPoint’s successor in title, Enable,
operates a gathering pipeline on the Enable Ricks Servitude.
On April 1, 2023, LEG obtained their own servitude over the Ricks
property (“LEG Ricks Servitude”) intersecting the Enable Ricks Servitude.
Enable’s affiliate, Energy Transfer, LP (“ETC”) was contacted by
representatives of Williams Company on behalf of LEG requesting
assessment and consent to 42 proposed pipeline crossings on May 23, 2023.1
Each pipeline crossing involved various sizes of pipe and specifications
throughout DeSoto, Caddo, Beauregard, Sabine, and Vernon Parishes.
Enable alleged that it was given only 14 days to evaluate the proposed 42
1 LEG is a subsidiary of Williams Company. crossings and not given all the pertinent information. After numerous email
exchanges between the companies, Enable, through an email from Mark
Vedral, denied all crossings on June 30, 2023.
In its petition, Enable argued that the Enable Ricks Servitude is an
exclusive servitude, and it did not agree to allow any crossing of that
servitude. Enable stated that LEG intends to construct a 36-inch natural gas
pipeline that would cross the Enable Ricks Servitude. The trial court granted
the temporary restraining order.
Mark Vedral, the Senior Director of Land and Right of Way with
ETC, stated in his affidavit that Enable/ETC received a request for
assessment and consent of more than 40 pipeline crossings. The request was
received on May 23, 2023, with a requested response date of June 6, 2023.
He stated that complete details and documentation were not provided. Mr.
Vedral stated that after receiving inaccurate and incomplete information
from LEG, Enable informed LEG that it did not have permission to cross the
pipeline. He stated that LEG’s contractors were also informed that LEG did
not have permission to cross after receiving a Louisiana One Call notice.
Mr. Vedral is of the opinion that the Enable Ricks Servitude is exclusive.
He alleged “imminent safety and operational risk” and “immediate and
irreparable loss.”
LEG filed its answer, affirmative defenses, and reconventional
demand on September 6, 2023. LEG stated that the documents and written
communications are the best evidence of their content. LEG alleged that
Enable never identified the missing information and denied that it needed
Enable’s consent to cross the pipeline. LEG asserted the following
affirmative defenses: Enable’s petition fails to state a claim upon which 2 relief can be granted; LEG has complied with all laws to exercise its rights
on the property; Enable’s rights have not been and will not be adversely
affected; LEG has accommodated all of Enable’s rights; LEG pleads waiver,
release, estoppel, unclean hands, laches, and extinguishment of obligation;
LEG asserts all rights under any applicable servitude agreement; Enable
does not have a right to a TRO, preliminary, or permanent injunction; and
Enable’s servitude is an absolute nullity and against public policy.
LEG alleged that Enable has the right to construct one pipeline at a
maximum depth of six feet (four feet of cover plus two feet of pipeline
diameter), and it has already been installed. LEG stated that it would
maintain at least three feet of clearance under Enable’s servitude, a depth
where Enable has no rights. LEG stated that Mr. Vedral objected to all
crossings without explanation. LEG requested a preliminary injunction
against Enable’s action to block LEG’s pipeline, damages, attorney fees,
court costs, legal interest, and all other relief which may be equitable under
the circumstances.
A hearing on the preliminary injunction was held on September 20,
2023. Steven Futch testified that he is the vice president of interstate
engineering for ETC; Enable is a pipeline company owned by ETC; and he
is responsible for all project development and project execution for all
company pipelines. He stated that he has never received 42 proposed
pipeline crossings at once. When reviewing the request, Mr. Futch believed
that 42 crossings meant LEG would switch back and forth over the Enable
Pipeline and end up back on the same side. He stated the two-week
turnaround was not a normal request. Mr. Futch detailed ways in which a
pipeline crossing could pose obstacles in the future: the pipeline never leaves 3 because a hole or dirt settling would remain; maintenance is more difficult;
the inability to move the pipeline if there is a change in the surface usage;
and repeated need to coordinate between the pipeline companies. Mr. Futch
clarified that the Enable Ricks Servitude does not have a maximum depth
limitation, only a minimum depth of three or four feet depending on the
surface use.
On cross-examination, Mr. Futch disagreed with opposing counsel
regarding whether the LEG pipeline is a gathering pipeline and the
applicable federal laws. Counsel for LEG asked Mr. Futch to clarify that the
42 crossings were planned to cross not only pipelines owned by Enable but
also different pipelines. Mr. Futch stated that the crossings were of “all of
our assets,” which includes companies within the ETC/Enable family of
companies. Mr. Futch agreed that safe pipeline crossings happen “all the
time.” On both direct and cross, Mr. Futch mentioned that the ETC/Enable
family of companies is the largest pipeline owner/operator in the country
with 120,000 miles of pipe.
Judd Tinkle, an encroachments project manager for ETC, testified that
he works on crossing requests. He stated that once the encroachments
division has approved the crossing, the right-of-way groups will then review
the request. Mr. Tinkle received the pipeline crossing requests from LEG.
He stated that it is unusual to get 42 requests at once. He testified that he did
not receive all the crossing diagrams together. Mr. Tinkle stated that it
typically takes three to four weeks to go through an encroachment request,
so he did not expect to have all the requests completed by the June 6, 2023,
deadline given by LEG. He stated that he requested missing information
4 from LEG, including a full KMZ file because he received partial files.2 Mr.
Tinkle testified LEG’s construction method was not clear in its crossing
requests. He testified that Enable received Louisiana One Call notifications
from LEG after the TRO was signed. He stated that it would not be
sufficient for LEG to simply follow ETC’s crossing guidelines and proceed
with construction.
On cross-examination, Mr. Tinkle admitted that some of the items he
stated were missing (i.e. proof of insurance and an encroachment agreement)
are not actually listed on the list of required documents for encroachment
approval. He also admitted that providing a full KMZ file is not in the
guidelines, but it is something ETC asks to be provided. He stated that
ETC’s guidelines do provide that it needs a final submittal plan and profile
drawings. Mr. Tinkle stated that the full KMZ would not be necessary to
access the Ricks Property, and from an encroachment standpoint, LEG has
proposed a safe crossing of the Enable Ricks Servitude.
Tyler Aldridge, a senior right-of-way representative at ETC, testified
that he manages groups of field agents that acquire and manage land rights
for pipeline assets. He stated that he has been involved in making requests
on behalf of ETC to cross Williams Company. He testified that exclusive
agreements allow ETC “to safely and effectively operate and maintain our
pipeline and its assets within that easement without having to worry about
the interference of a third party.” Mr. Aldridge stated that when acquiring
servitudes, ETC always tries to get an exclusive servitude. His testimony
corroborated Mr. Futch’s testimony that if LEG crossed Enable’s servitude,
2 The KMZ file contains workspace, pipelines, easements, and map information that Enable could compare with their internal GIS system. 5 Enable would have to coordinate any maintenance of the Enable Ricks
Servitude with LEG, potentially costing more money and taking more time.
On cross-examination, Mr. Aldridge stated that he interpreted the
three- and four-foot depth requirements to be minimum depths based on
industry practice. He testified that Enable’s position is that it does not plan
to allow the crossing under the Enable Ricks Servitude. He stated that no
amount of data or information could be provided to change that position.
Mr. Aldridge was asked to read through emails he sent to a subsidiary of
Williams Company when ETC requested to cross an exclusive servitude. He
stated that in that request, he only sent a pinpoint KMZ file, not the entire
pipeline’s KMZ file. Mr. Aldridge testified that after Enable was notified
that there were 42 crossings, Mr. Vedral, from the land department, asked
that all the crossings be submitted at one time.
Mr. Vedral testified that he is the director of land and right-of-way for
ETC. He stated that the exclusive servitude gives Enable the “rights to
defend that fifty-foot easement with third-party obstructions and to have a
say.” He agreed with Mr. Aldridge that the three- and four-foot depth
restrictions were minimums, not maximums. Regarding whether he was
aware before the crossing requests that LEG was planning to cross 42 times,
Mr. Vedral stated:
[S]he had mentioned earlier in the year--I’ll say somewhere around Spring of this year--that there was some crossings coming up in Louisiana. And I think at that time, she had mentioned maybe around twenty. Again, this was just hearsay essentially--us talking. So I was not aware of it being forty- two, but she had disclosed or presented that there was a larger size project coming down the road in the future.
6 Mr. Vedral testified that he asked LEG representatives to provide all
the crossing requests at once. Mr. Vedral stated that he wanted to see the
full picture of LEG’s project—the full pipeline route, whether they had
expropriation rights, servitude agreements for the pipeline, and any
certificates received by the State of Louisiana. He testified that after
receiving the LEG proposed crossings, ETC received a crossing request
from another company with over 100 planned crossings.
In clarifying his desire to know about expropriation rights, Mr. Vedral
stated:
I have stated all along if a company has the rights of expropriation, whether at any particular state they’re in, via the utility of that state, or it’s under a FERC certificate, from my perspective I review the land rights differently. Say we have an exclusive easement, but it’s Williams’ Transco system, which is a FERC-regulated system and they’re putting an expansion onto it and they need to get across our exclusive easement, if we’ve got a problem with it or if we try to hang it up, I need to know if they would have to file for expropriation. They could probably go to federal court and get an injunction, or if they wanted to expropriate they could. They have that right with that certificate. So in the case of is it an expropriation level pipeline versus a gathering line, well a gathering line does not have those rights of eminent domain or expropriation. So us having an exclusive easement sitting there with a superior right, a superior land right, holds more water in my opinion. We have a right that is existing and is there. You don’t have the right to expropriate us. That’s why we’re standing firm.
On cross-examination, Mr. Vedral was asked about the other lawsuits
ETC has filed to prevent crossings. Mr. Vedral stated that some of the other
lawsuits do not involve agreements with the word “exclusive,” but the goal
is to block all the crossings in this LEG project. Mr. Vedral was asked to
review two Letters of No Objection from ETC to third-party companies from
2021 and 2022 that included requirements for crossing under an exclusive
agreement. Mr. Vedral stated that he was not on the review team for the
7 2021 crossing and did not know why the crossing of an exclusive servitude
was allowed. Mr. Vedral stated the 2022 crossing may have been allowed
because it was going to connect to the ETC pipeline. When asked if one of
the criteria for allowing a crossing was whether it would be good for
business, Mr. Vedral responded, “I’d say yes. I mean we’re a growing
company. We’re always looking to negotiate deals and grow our bottom
line. So anytime that we can, uh, conduct business to make money, that’s
what we do.”
Mr. Vedral was questioned about his affidavit that mentioned general
safety risks of LEG crossing Enable. He stated he is in the land department
and not part of encroachments or engineering. He stated that his knowledge
of safety concerns comes from years in the industry and any crossing could
present an imminent safety risk.
Eric Malstrom testified on behalf of LEG. Mr. Malstrom is a licensed
engineer and project director for Williams Company. He stated Williams
Company is working on the LEG project and explained the purpose of the
LEG pipeline to alleviate bottlenecks in the gathering systems that make
moving gas from the well sites difficult. Mr. Malstrom described an exhibit
that showed the placement of the pipelines in the area. Mr. Malstrom
testified that there is typically collaboration between pipelines and crossings
are expected, but that has not been the case with this LEG project. He stated
that there has been no collaboration, and ETC has had broad objections from
the beginning without the willingness to work out any concerns. He testified
that all the crossings will follow industry safety standards, as well as ETC’s
own standards for crossing exclusive and non-exclusive servitudes.
8 Mr. Malstrom described the impact of blocking pipeline crossings on
the landowners and mineral owners. He stated the landowner would have
fewer options to get their gas to market, it creates an anticompetitive
environment, and it could potentially result in less income for the land
and/or mineral owners. Mr. Malstrom clarified that the planned crossings
are not a zigzag back and forth over a straight ETC/Enable pipeline but
crossing a spiderweb of pipelines owned by ETC/Enable. He explained that
LEG has considered a reroute around the Enable Ricks Servitude; however it
will add 2,750 feet of pipe, cost about $1.8 million, and still require them to
cross ETC further down the line. He stated that even if they found a place to
cross ETC without the word “exclusive” in the servitude, ETC is currently
litigating all crossings; therefore, they would still likely find themselves in
litigation to cross. Mr. Malstrom testified that Williams Company and LEG
are aware of ETC’s attempts to block other exclusive servitudes and wanted
to get these exclusive servitudes litigated at the beginning of the project.
Regarding ETC’s request for the full KMZ file, Mr. Malstrom stated that the
file has commercially sensitive information in it. He then stated:
I don’t understand why [ETC] would need information on one hundred percent of our pipeline, 99.8% of it which isn’t even on any of their servitudes, to understand their rights associated with .2% of our entire length. I don’t know why you would need information for a pipeline that’s thirty miles away [from] your servitude that’s only fifty feet wide.
Wendy Whitfill-Embry testified that she is a land manager for
Williams Company overseeing land acquisitions. She stated that her job
position requires her to work in 19 states, and this is the first time she has
experienced a pipeline company attempting to block an encroachment. She
testified that she never received any communication from ETC that specific
9 information was missing or inaccurate regarding the Enable Ricks Servitude
crossing.
Mrs. Whitfill-Embry stated that pipeline crossings with ETC were
historically amicable, but in the past year, ETC changed its position on
crossing exclusive pipelines. She stated that now Mr. Vedral mentions
getting their commercial departments involved, which never happened in the
past. She speculated that part of the relationship breakdown between ETC
and Williams Company could have stemmed from a $600 million judgment
Williams Company obtained against ETC due to a failed merger at the end
of 2021/beginning of 2022. Mrs. Whitfill-Embry stated that exclusive
language in a servitude agreement is intended to prevent co-location or
parallel pipelines within the servitude, not prevent perpendicular crossings.
On cross-examination, Mrs. Whitfill-Embry stated that she received
the request for the full KMZ file, but LEG’s position is that the full file will
not be provided for the entire project.
Lee West testified that he has worked for Williams Company for nine
years as a construction manager in the gathering processing group and has
been in the pipeline industry for 19 years. He stated that he has been
involved in numerous pipeline crossings, including crossing ETC pipelines,
and there have been no safety concerns. Mr. West testified that Williams
Company selected a reputable contractor that ETC previously used to
perform the necessary potholing of the Enable Ricks Servitude but was
denied access by ETC. He stated that final construction details and concerns
have been handled at the field level in past projects. He stated that he has
reviewed ETC’s crossing guidelines, and the LEG project complies with
10 those guidelines. Mr. West detailed Williams Company’s plans for
construction on this ETC crossing.
At the close of testimony, the trial court requested briefing. Both
sides filed their briefs, and the trial court issued its judgment. The trial court
granted the preliminary injunction as requested by Enable on December 18,
2023.
In written reasons for ruling, the trial court found that Enable has a
real right in the property and is not required to show irreparable harm to
obtain the preliminary injunction. The trial court stated that the Enable
Ricks Servitude provides that Enable would have the right to prevent future
construction within the boundaries of the servitude. The trial court found
both servitudes to be clear and explicit and do not lead to absurd
consequences by the terms of the servitude agreement. LEG’s incomplete
data submission and the “extraordinarily narrow window of time” LEG
requested review and approval of 42 crossings was found by the trial court to
be pertinent to this case.
Regarding the claims by LEG that Enable acted in bad faith and in a
combative manner, the trial court found relevant that LEG requested
approval of 42 crossings in nine business days. The trial court stated:
Despite the enormous financial investment and the considerable time
devoted to securing servitude agreements for nearly 200 miles of pipeline,
LEG chose an untenable approach to obtaining pipeline crossings necessary
for the successful completion of the LEG project. Enable did not act
unreasonably by conveying a general objection to all pipeline crossings as
LEG did not afford Enable adequate time to evaluate the proposal.
LEG now appeals. 11 DISCUSSION
LEG argues that Enable’s “exclusive” servitude does not allow it to
forbid subsequent crossings. It asserts that only ownership can confer
exclusive authority, and a personal servitude conveys less than full
enjoyment. LEG states that this case is almost identical to ETC Tiger
Pipeline, LLC v. DT Midstream, Inc., 55,534 (La. App. 2 Cir. 4/10/24), 384
So. 3d 458 because of the one-time use of the word “exclusive” in the
agreement; Enable’s one pipeline authorized by the agreement has already
been completed; and there are no safety concerns for the crossing.
LEG highlights that just because Enable can review and consent to the
third-party construction under Paragraph 9, it does not have authority to
prevent any crossings below the Enable servitude, as found in Paragraph
12(3) of the agreement. LEG asserts that public policy prevents a broad
reading of Paragraph 9. It argues that the civil code disfavors the trial
court’s interpretation of the servitude under La. C.C. arts. 720 and 730.
Enable argues that the trial court properly considered the Enable Ricks
Servitude agreement in determining the servitude is exclusive and Enable
has the authority to block LEG’s pipeline. Enable highlights the provisions
preventing excavation and removal of the ground above and around its
pipeline. Enable asserts that the servitude agreement is the best evidence of
the intent of the parties. It argues that the trial court was correct in holding
that the Enable Ricks Servitude is clear and explicit, and a plain reading
does not lead to absurd consequences. Enable argues that LEG seeks to
infringe upon Enable’s real property rights without compensation or 12 expropriation, and allowing otherwise would be a takings violation of the
Louisiana Constitution.
Amicus briefs were filed by Interstate Natural Gas Association of
America, American Petroleum Institute, Louisiana Landowner’s
Association, Inc., and the State of Louisiana, all of which support LEG’s
position that the trial court judgment should be reversed.
LEG argues that Enable failed to meet its burden of proof that LEG’s
crossing will irreparably harm Enable and adversely affect Enable’s use of
its servitude. It states that the trial court erred when determining that Enable
did not have to show irreparable harm because it sought to enjoin LEG from
interfering with its real right.
Enable argues that it was not required to prove irreparable harm or
adverse effects because it has a real property right, but the trial court found
that Enable proved irreparable harm. It states that the trial court found that
potholing was invasive and had the potential to harm its pipeline.
LAW
A trial court has broad discretion in ruling on a preliminary injunction
and its ruling will not be disturbed absent an abuse of discretion. ETC v. DT
Midstream, supra; Powertrain of Shreveport, L.L.C. v. Stephenson, 49,327
(La. App. 2 Cir. 10/1/14), 149 So. 3d 1274.
La. C.C.P. art. 3601 provides, in pertinent part, “An injunction shall
be issued in cases where irreparable injury, loss, or damage may otherwise
result to the applicant, or in other cases specifically provided by law[.]”
In order to obtain a preliminary injunction, a plaintiff must show that he will
suffer irreparable harm if the injunction is not granted, that he is entitled to
the relief sought, and he must make a prima facie showing that he will 13 prevail on the merits. ETC v. DT Midstream, supra; Louisiana Granite
Yard, Inc. v. LA Granite Countertops, L.L.C., 45,482 (La. App. 2 Cir.
8/18/10), 47 So. 3d 573, writ denied, 10-2354 (La. 12/10/10), 51 So. 3d 733.
Injunctive relief to protect or restore possession of immovable
property or of a real right therein is available to “a person who is disturbed
in the possession which he and his ancestors in title have had for more than a
year of immovable property or of a real right therein of which he claims the
ownership, the possession, or the enjoyment.” La. C.C.P. art. 3663(2). A
preliminary injunction brought pursuant to La. C.C.P. art. 3663 does not
require a showing of irreparable harm. Whitlock v. Fifth Louisiana Dist.
Levee Bd., 49,667 (La. App. 2 Cir. 4/15/15), 164 So. 3d 310.
The personal servitude of right of use confers in favor of a person a
specified use of an estate less than full enjoyment. La. C.C. art. 639. 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. 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. La. C.C. art. 645.
A predial servitude is a charge on a servient estate for the benefit of a
dominant estate. La. C.C. art. 646. The owner of the servient estate may
establish thereon additional servitudes, provided they do not affect adversely
the rights of the owner of the dominant estate. La. C.C. art. 720. Doubt as
to the existence, extent, or manner of exercise of a predial servitude shall be
resolved in favor of the servient estate. La. C.C. art. 730. 14 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’ intent. La. C.C. art. 2046.
The Enable Ricks Servitude contains, in pertinent part, the following
provisions:
1. Easement. A permanent and exclusive right of use, servitude, easement and right-of-way Fifty feet (50’) in width (hereinafter called the “Easement”), being Twenty-five feet (25’) on either side of the midline, together with all improvements located thereon, on, in, over, under, through and across Grantor’s land for the purpose of locating, establishing, constructing, laying, installing, operating, using, maintaining, inspecting, testing, protecting, cathodically protecting, repairing, assigning, restoring, renewing, reconstructing, replacing, substituting, changing, altering, converting, relocating within the Easement and removing therefrom one (1) pipeline not to exceed Twenty-four (24”) inches nominal diameter, together with such appliances, equipment and appurtenant facilities (above and below ground) as from time to time deemed by Grantee to be necessary, useful or convenient in connection with the use and convenient operation of the pipeline, for the transportation of oil, gas, petroleum products, fresh water, saltwater, or any other liquids, gases (including inert gases) or substances which can be transported through pipeline…The description of the Easement and the Easement location, are described in Exhibit “A” attached hereto and made a part hereof for all purposes.
7. Pipeline Depth. Except as provided for in paragraph 12 (3), the pipeline will be buried to a minimum depth of thirty-six inches (36”) below the surface of the ground[.]
9. Restrictions on Grantor Use of Easement. Except as provided for in paragraph 12 (11), without prior, written consent of the Grantee, Grantor shall not construct or permit construction within the boundaries of the Easement, and Grantee shall have the right to prevent the construction within the boundaries of the Easement and the right to remove therefrom, any and all types and sizes of houses, barns, buildings, structures, permanent impoundments of water, and natural or man-made obstructions, including but not limited to trees, brush, roots and other growth. Grantor shall not, nor permit third parties to, change the grade of the land or remove the cover over the pipeline or excavate on or near the Easement without prior, written consent of the Grantee.
15 12. Special provisions.
(3) DEPTH OF PIPELINE: The pipeline constructed under the terms of this agreement shall be buried to a depth of four (4) feet below normal ground level in pastureland areas and three (3) feet below ground level in timberland areas.
DISCUSSION
As we stated in ETC v. DT Midstream, the pipeline servitude is not a
predial servitude because it does not involve two estates; rather, it is a right
of use granted to the pipeline company. See also La. C.C. art. 645, comment
(b). Enable has a right of use in a 50-foot-wide strip across the Ricks
Property. According to La C.C. art. 639, a right of use is for a specific
purpose and less than full enjoyment. Here, the purpose of the ETC Ricks
Servitude was the placement and maintenance of one pipeline.
Enable argues this case is distinguishable from the ETC v. DT
Midstream case because the clauses are different and there were 42 requests
submitted at once. First, we find that the trial court improperly considered
the number of crossings requested in reviewing the injunction for this one
crossing. Mr. Vedral anticipated multiple crossing requests and told LEG to
submit all its requests at once. If Enable was overwhelmed or needed more
time, it was the result of its own decision to ask that all requests be
submitted together.
As in ETC v. DT Midstream, whether Enable has the right to block the
crossing pipeline is dependent upon the Enable Ricks Servitude agreement
and what was granted to Enable. The Enable Ricks Servitude uses the word
“exclusive” once, and it is not defined in the agreement. In keeping with
this Court’s jurisprudence, we do not find that the one-time use of the word
16 “exclusive” means that Enable’s servitude includes all depths and can
subjectively block the crossing of another pipeline.
The Enable Ricks Servitude is for one pipeline within the 50-foot
servitude, buried at a depth of three to four feet, depending upon the surface
use. Paragraph 7 has a general depth provision of at least three feet.
However, that is subject to the specific provisions in paragraph 12(3), which
states the pipeline “shall be buried to a depth of four (4) feet below normal
ground level in pastureland areas and three (3) feet below ground level in
timberland areas.” Unlike the ETC v. DT Midstream case, this agreement
states a depth for the pipeline. Therefore, we will not stretch the one-time-
use of the word “exclusive” to convey an intent of exclusive rights to all
depths when the pipeline must be buried at a specific depth.
The purpose of the Enable Ricks Servitude is “locating, establishing,
constructing, laying, installing, operating, using, maintaining, inspecting,
testing, protecting, cathodically protecting, repairing, assigning, restoring,
renewing, reconstructing, replacing, substituting, changing, altering,
converting, relocating within the Easement and removing therefrom one (1)
pipeline.” Enable cannot lay a second pipeline under this agreement and is
limited to maintaining the current pipeline. Even if the maintenance of the
pipeline requires it to be replaced, the agreement’s terms as to placement and
depth remain the same. Therefore, the purpose of the pipeline does not
support a finding of “exclusive” to mean an infinite depth.
The Enable Ricks Servitude states that the landowner may not
permit “construction within the boundaries of the Easement, and Grantee
shall have the right to prevent the construction within the boundaries of the
Easement.” Because we do not find the word “exclusive” to convey the 17 meaning of infinite depths, we do not find that the installation of a second
pipeline below the Enable pipeline is within the boundaries of the easement.
The prohibition on construction lists multiple above-ground activities
as examples. The only underground activities in the prohibition of
construction are the changing of the grade, removal of dirt cover, or
excavation. This contemplates activities that would change the depth of the
pipeline, i.e. leveling the land which would make the pipeline shallower than
the initially buried depth. The prohibition against excavation is that which is
“near” the easement. What constitutes “near” is ambiguous. Is ten feet
“near” or is it only two feet? What is considered “near” will likely be
subjectively based on safety concerns and the planned excavation project.
Here, Enable did not block LEG based on articulable safety issues. Mr.
Futch testified that safe pipeline crossings occur frequently. Mr. Tinkle
stated that from an encroachment standpoint, the proposed crossing would
be safe. There was some discussion on changes regarding cathodic testing if
a pipeline were to cross the Enable Ricks Servitude, but it was not an issue
of safety or irreparable harm.
As in the ETC v. DT Midstream case, the concern is not safety but
Enable attempting to block a competitor or gain a “commercial” benefit.
The district court erred in its interpretation of the Enable Ricks Servitude,
and Enable has failed to show it is entitled to relief. Enable does not have a
property right to infinite depths, which are outside the easement boundaries
and did not show irreparable harm. Therefore, we reverse the preliminary
injunction granted in favor of Enable.
18 CONCLUSION
For the reasons set forth above, the preliminary injunction granted in
favor of Enable is reversed. Costs associated with this appeal are cast on
Enable.
REVERSED.