Judgment rendered April 10, 2024. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 55,534-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
ETC TIGER PIPELINE, LLC Plaintiff-Appellee
versus
DT MIDSTREAM, INC. AND DTM Defendants-Appellants LOUISIANA GATHERING LLC
Appealed from the Forty-Second Judicial District Court for the Parish of DeSoto, Louisiana Trial Court No. 83,903
Honorable Nicholas E. Gasper, Judge
STONE PIGMAN WALTHER Counsel for Appellants, WITTMANN LLC DT Midstream, Inc., By: C. Lawrence Orlansky and DTM Louisiana Nicholas J. Wehlen Gathering, LLC Faith C. Flugence
COOK, YANCEY, KING & GALLOWAY, APLC By: John T. Kalmbach W. Drew Burnham J. Bert Babington BRADLEY, MURCHISON, Counsel for Appellees, KELLY & SHEA, LLC ETC Tiger Pipeline, LLC By: Leland G. Horton and Enable Gas Ashley G. Gable Transmission
LIZ MURRILL Counsel for Appellee, Louisiana Attorney General State of Louisiana
RYAN M. SEIDEMANN WARREN B. BATES, JR. Assistant Attorneys General
OTTINGER HEBERT, LLC Counsel for Appellee, By: Patrick S. Ottinger Louisiana Oil & Gas Association
PHELPS DUNBAR, LLP Counsel for Appellee, By: H. Alston Johnson, III Williams Companies, Inc. Brad M. Boudreaux Kevin W. Welsh
CARVER, DARDEN, KORETZKY, Counsel for Appellee, TESSIER, FINN, BLOSSMAN & Louisiana Landowners AREAUX, LLC Association, Inc. By: M. Taylor Darden Brandon T. Darden
GORDON, ARATA, MONTGOMERY, Counsel for Appellees, BARNETT, MCCOLLAM, DUPLANTIS American Petroleum & EAGAN, LLC Institute and Interstate By: Scott A. O’Connor Natural Gas Association C. Peck Hayne, Jr. of America J. Douglas Rhorer
Before COX, THOMPSON, and ELLENDER, JJ.
THOMPSON, J., concurs with written reasons. COX, J.
This appeal arises out of DeSoto Parish, Louisiana. ETC Tiger
Pipeline, LLC (“ETC”) was granted a temporary restraining order (“TRO”)
and preliminary injunction to prevent DT Midstream, Inc. and DTM
Louisiana Gathering, LLC (collectively, “DTM”) from constructing a
perpendicular pipeline under ETC’s pipeline. DTM appeals the preliminary
injunction. For the following reasons, we reverse.
FACTS
On March 10, 2010, Red River Louisiana I LP (“Red River”) granted
a Servitude of Use for Pipeline (“ETC Servitude”) to ETC.1 The ETC
Servitude was recorded in the public records in DeSoto Parish. ETC’s 42-
inch, high pressure, high volume natural gas pipeline runs from Panola
County, Texas, through the ETC Servitude in DeSoto Parish, to Richland
Parish.
In October 2022, ETC was contacted by DTM indicating that it
intended to cross the ETC Servitude in DeSoto Parish with a smaller natural
gas pipeline. ETC alleged that it had conversations with DTM after the
notification. On December 1, 2022, ETC advised DTM that it objected to its
route and DTM would need to reroute its pipeline. 2 DTM asked to meet and
discuss the pipeline crossing, and ETC maintained that their answer was no.
ETC stated that it “invited DTM to involve its commercial team to make
1 Title later transferred from Red River to Republic, Inc. 2 Originally, DTM’s route included crossing property owned by ETC as well as the ETC Servitude. However, ETC informed DTM that it would not be providing a Servitude agreement to cross their property. DTM rerouted in order to avoid the ETC property and intended to cross the ETC Servitude in a different location. commercially reasonable proposals for the crossing to be considered[.] In
the ensuing two months, no such proposals were received[.]”
On March 9, 2023, a contractor for DTM informed ETC that DTM
intended to cross the ETC Servitude in a few weeks. ETC again informed
DTM that it did not have permission to cross and DTM could not fulfill the
necessary safety and operational requirements of ETC. On March 13, 2023,
DTM initiated a Louisiana One Call (“One Call”) seeking information to
cross the ETC Servitude. ETC again informed DTM that it did not have
permission to cross. An ETC employee observed pipe on the ground near
the ETC Servitude.
ETC filed its petition for TRO, preliminary injunction, and permanent
injunction against DTM on March 15, 2023. ETC alleged that it had an
exclusive servitude and did not permit any other pipelines to cross. It
alleged that the DTM pipeline presents an imminent safety and operational
risk for ETC and would cause immediate and irreparable injury, loss, or
damage. ETC claimed that DTM’s actions expose ETC to immediate and
ongoing damages, infringe upon its exclusive servitude rights, and constitute
a trespass. ETC requested a TRO to prevent DTM from continuing
construction, which it will later request to be permanent, and costs
associated with the suit and expert fees.
ETC attached the affidavit of Mark Vedral, who stated he is the senior
director of land and right of way with ETC; ETC’s exclusive servitude does
not allow any other pipelines to cross the ETC Servitude or the same
property as the pipeline; and ETC has strict policies for crossing safely,
which DTM has not met. Mr. Vedral also stated that ETC invited DTM “to
2 make commercially reasonable proposals for a crossing to be considered by
ETC[.]”
ETC attached the affidavit of Joseph Migues, a pipeline technician
for ETC. Mr. Migues received the One Call request made by DTM and
informed DTM that it could not cross the ETC pipeline as the necessary
safety and operational requirements were not and could not be met.
DTM filed an opposition to the preliminary injunction. DTM stated
that it made good faith efforts to communicate with ETC regarding
compliance with safety codes, construction standards, and industry customs
and practices. DTM explained that it is in the process of constructing a 24-
inch, 4-mile long pipeline in DeSoto Parish (“DTM Pipeline”). At the
location in question, it plans to cross the following four pipelines that run
adjacent to and parallel to each other: 1) a 12-inch diameter pipeline owned
by The Williams Companies, Inc. (“Williams Co.”); 2) a 12-inch diameter
pipeline owned by Clearfork Midstream (“Clearfork”); 3) a 42-inch pipeline
owned by a different subsidiary of ETC’s parent company (“ETC-CP
Pipeline”); and 4) ETC’s 42-inch diameter pipeline. DTM planned to bore
under the four pipelines at a right angle, using a horizontal directional
drilling machine. It stated that the DTM Pipeline would run approximately
19 feet below the largest pipeline and 25 feet below the ETC Pipeline, a
depth that exceeds ETC’s own requirements. DTM stated that it obtained a
servitude from the landowner, Red River, and cleared the crossing with
Williams Co. and Clearfork.
DTM argued the following: ETC cannot meet their high burden to
obtain a preliminary injunction; DTM has a valid servitude agreement to
cross the subject property; ETC does not have a property right in the ETC 3 Servitude to prevent crossing; DTM can safely cross the ETC Servitude;
DTM gave ETC ample notice; the damage to DTM, its customers, and the
public from an injunction outweighs any theoretical harm to ETC; a
preliminary injunction would be against public policy and the public
interest; and ETC’s bond is inadequate.
DTM filed an answer and reconventional demand, denying ETC’s
portrayal of the events and demanding damages, a TRO, preliminary
injunction, and permanent injunction. DTM attached the affidavit of Eric
Gray. Mr. Gray stated that he is a senior supervisor of land operations at
DTM. He stated that “exclusive” in a pipeline agreement means that no
other pipeline can co-locate on a parallel basis within the servitude. He
stated that this is common verbiage and does not allow a company to
prohibit a crossing.
DTM attached the affidavit of Shane Martin, who outlined the details
of the DTM Pipeline and steps that had been taken to work with ETC in
boring under the ETC Pipeline. DTM attached the affidavit of Michael
Guerra, who stated that DTM will suffer $18.5 million in damages, as well
as the potential loss of its anchor shipper, if the project cannot be completed.
DTM also attached a copy of their servitude agreement with Red River.
The trial court heard the matter on April 3 through 5, 2023. Mr.
Vedral testified that he oversees right of ways and permitting matters,
among other things, at ETC’s parent company and formerly acquired right of
ways for ETC, including the ETC Servitude. He was questioned about the
phrase “exclusive servitude of use.” Mr. Vedral stated that because of all the
Haynesville Shale activity and the fact that they were laying a 42-inch pipe
parallel to two other 42-inch pipes, they wanted to have an exclusive 4 servitude that only they could use. He stated that they purchased as many
exclusive servitudes as they could for this pipeline. He noted that there was
not a depth restriction in the servitude. Mr. Vedral stated that Red River was
in the timber business.
When asked how the DTM pipeline would interfere with ETC’s future
use of the servitude, Mr. Vedral responded:
They’re gonna have a pipeline, that’s contained within our sixty-foot exclusive easement, that’s gonna be there moving forward. We’re gonna have to deal with it, it’s going to be there, and there’s no way around it. So that impacts our day-to- day operations and maintenance work related to this major, [42- inch], two billion cubic feet per day, natural gas pipeline.
Mr. Vedral detailed the communication he had with DTM
representatives and stated the answer was always that DTM could not cross
the ETC Servitude or any ETC-owned property. On cross-examination, Mr.
Vedral admitted that he does not work on this pipeline on a daily basis and is
unaware of how many other pipelines cross the ETC Pipeline and if any
others cross in what ETC deems an exclusive servitude area. He admitted
that ETC effectively has a wall across North Louisiana in each area they
deem to have an exclusive servitude. When asked how deep that wall runs,
Mr. Vedral responded, “How deep do you want it to run?” Mr. Vedral later
agreed that the wall could go as deep as ETC wanted it to go.
Mr. Vedral emphasized that he believed an exclusive servitude was
not limited to only the width of the servitude. He stated that the word
exclusive precludes the landowner from granting any other servitude that
crosses the ETC Servitude.
Judd Tinkle testified that he is an encroachments project manager for
ETC. He detailed ETC’s guidelines for a pipeline crossing one of ETC’s
5 pipelines. He stated guidelines are the basics for crossing the pipeline, but
ETC may require more than is stated in the guidelines. He testified that he
did not receive all the necessary paperwork from DTM to approve a crossing
and told DTM that the answer to crossing the easement would be no. Emails
between Mr. Tinkle and DTM show that initially Mr. Tinkle stated that
DTM could cross the ETC Pipeline in a different location (not on ETC-
owned property), as long as it adhered to the guidelines, which were copied
into the email. Within 15 minutes, Mr. Tinkle sent another email to DTM
stating it could not cross the owned property or easements. Mr. Tinkle
testified that this change of heart occurred after talking to Mr. Vedral and a
joint decision to not allow a crossing. Mr. Tinkle’s testimony was, “Like I
said before, no crossing of the fee-owned property and the exclusive
servitude.”
Mr. Migues testified that he is a pipeline technician for ETC. He
stated that he received the One Call that DTM had planned activity in the
ETC Servitude. He testified that he refers pipeline crossings to ETC’s
encroachment department. On cross-examination, Mr. Migues stated that in
his area of the ETC Pipeline, there have been 60 to 70 pipeline crossings,
with the largest pipe being 42 inches in diameter. He stated that in order for
another company to know the depth and diameter of the ETC Pipeline, the
other company will pothole the pipe, or remove the dirt to visually see the
pipeline. 3 He testified that ETC did not allow DTM’s contractor to pothole
the ETC Pipeline. Mr. Migues stated that without the depth information,
3 Potholing a pipe is a process that combines pressure washing and vacuuming— the ground is saturated with water and the soil is vacuumed up to expose the pipe. 6 DTM could not complete their boring profile for their project. He testified
that the reason for not allowing the potholing was above his paygrade.
Mr. Gray testified that he is a senior supervisor of land operations
with DTM. He stated the purpose of the DTM Pipeline is to transport
natural gas from a facility north of Keatchie to a larger pipe, which will take
the natural gas to a hub in South Louisiana. He testified that DTM cannot
complete its pipeline profile until all necessary information is received from
the pipeline company it is trying to cross. Mr. Gray detailed the following
contact that he had with ETC representatives:
• October 2022- first communication with ETC
• November 2022- first written communication with ETC; Emails
with Tyler Aldridge, senior land representative with ETC;
Informed Mr. Aldridge of the proposed crossing and ETC
requested the start date, location, and proposed method, which
DTM provided. DTM negotiated with ETC for a servitude through
their owned property, but ETC informed DTM that the servitude
would not be granted in December 2022.
• December 2022- DTM inquired why they could not get the
servitude and if there was another place they could cross the ETC
Pipeline; ETC responded that it had future plans for its property
and DTM could cross the ETC Pipeline in another location, as long
as the design adhered to the exclusive easement guidelines that
were attached to the email; ETC requested a copy of DTM’s plan
and profile; 12 minutes later, ETC sends another email that it will
not allow crossing of its property or easements. Mr. Gray called to
inquire about the change and was told it was a “commercial” issue 7 and the decision was made higher up to say no to the crossing. Mr.
Gray was unable to get further responses from ETC and passed the
information to his boss.
Mr. Gray testified that he understood “exclusive” to mean there could
not be any other pipeline co-located within the servitude on a parallel basis.
He stated that when DTM could not get a servitude agreement with ETC, it
sought a servitude through Red River’s property and another property, which
were granted. Mr. Gray testified that in all of his conversations with ETC,
safety concerns or concerns about their contractors were never brought to his
attention.
Jeremy Tingler testified that he is the director of land at DTM. He
stated that when Mr. Gray told him ETC would not allow them to cross their
property and servitude, he reached out to Mr. Vedral. Mr. Tingler was told
by Mr. Vedral that “it was out of his hands” and “more of a commercial
issue, not a land issue.” Mr. Tingler testified that he assumed “commercial”
meant they wanted compensation or gas and he was not able to negotiate
those issues. He stated that he added Mr. Guerra to the emails because he
was on the commercial side of DTM, but Mr. Vedral never gave a name of
anyone in ETC’s commercial department. Mr. Tingler’s opinion was the
same as Mr. Gray’s—“exclusive” means no parallel pipeline within the 60-
foot servitude. Mr. Tingler testified that safety concerns were never
expressed to him by ETC. He stated that in his experience, another pipeline
company has never attempted to deny a crossing.
Mr. Martin testified that he is a senior supervisor of construction at
DTM. He outlined the process for a One Call and how pipeline companies
typically coordinate the crossing of pipelines. He stated that after the One 8 Call in this case, the Williams Co. and Clearfork met them at their sites to
pothole the pipelines; the information gathered from potholing was sent to
DTM’s engineering department to develop a pre-bore profile. He stated that
ETC would not meet to allow potholing of their pipelines. Mr. Martin
testified that DTM is able to comply with ETC’s crossing guidelines and has
developed a preliminary bore plan based on the information it has available.
Shannon Perry testified that he is the director of construction for
DTM. He stated that he has never encountered a situation where another
pipeline company attempted to prevent a pipeline crossing. He testified that
he has reviewed ETC’s crossing guidelines and DTM is able to comply with
those guidelines.
Philip Coleman testified that he is a professional engineer and the
director of codes and regulatory at DTM. He testified that the Federal
Energy Regulatory Commission (“FERC”) is more of an economic regulator
that assists companies with permits, tariffs, and rates. He said pipeline
safety is regulated by the Pipeline and Hazardous Materials Safety
Administration (“PHMSA”). Mr. Coleman testified that as it pertains to
pipeline safety, there is no difference between a FERC-regulated pipeline
(ETC’s Pipeline) and a non-FERC-regulated pipeline (DTM’s Pipeline).
Mr. Coleman detailed the federal regulations regarding separation between
pipelines.
Mr. Guerra testified that he is the director of marketing and
optimization at DTM, and he has worked on this pipeline project since it
began. He stated ETC was a competitor in getting the bid for this pipeline
project. He testified that if the project cannot be completed, DTM loses their
contract and other gas companies affected by this pipeline would lose 9 contracts and the ability to sell their gas under their current contracts. Mr.
Guerra stated he was not put in contact with anyone from the commercial
side of ETC until the TRO was filed. He stated that he talked to their VP
over commercial and was told they were looking for a business incentive to
allow the crossing and mentioned needing help getting some Paloma Natural
Gas (“Paloma”) gas on their pipeline system. Mr. Guerra testified that ETC
never pinpointed exactly what they wanted in exchange for the crossing. He
stated that he had never been asked to make a commercial offer in order to
cross another pipeline.
Les Smith testified that he is the senior vice president of marketing
and midstream for Paloma, which has a contract with DTM to transport its
gas to South Louisiana. Mr. Smith detailed the negative economic effects to
Paloma if DTM is unable to transport its gas.
Both parties submitted post-hearing briefs. DTM attached proof of its
purchase agreement to purchase the land through which the ETC Servitude
runs.
On April 17, 2023, the trial court issued its ruling and reasons for
ruling. The trial court granted ETC’s preliminary injunction and denied
DTM’s preliminary injunction. It stated that this case falls under La. C.C.P.
art. 3663, and ETC only has to show that it has a real right and is seeking to
protect its possession of that right. It found that the words of the ETC
Servitude were clear—ETC has an exclusive servitude and the crossings
anticipated in the servitude do not include a pipeline crossing. The trial
court also stated that it believes the safety concerns of ETC are not grounds
for issuing a preliminary injunction. It found that the exclusive servitude
gave ETC the right to prevent DTM’s crossing. 10 DTM filed a motion for clarification, requesting that the injunction in
ETC’s favor be dissolved immediately upon DTM’s recording of its
purchase of the property in question. ETC opposed DTM’s motion for
clarification in a motion to strike the evidence of DTM’s purchase
agreement. The trial court stated that “the purchase of the land in question
would be subject to the current exclusive servitude. This court does not
believe that the purchase would change anything.” The trial court stated that
the motion to strike was moot in light of its ruling on DTM’s motion for
clarification.
Upon DTM’s unopposed motion for modification of ruling, the trial
court modified its judgment to avoid any ambiguity as to what work DTM is
prevented from performing. DTM applied for supervisory writs to this
Court and appealed the trial court’s ruling. Their writs were denied as the
issue could be decided on appeal.
ARGUMENTS
DTM argues that the district court erred in interpreting the ETC
Servitude as unambiguously granting ETC the right to block construction of
a crossing pipeline. It asserts that there is no express grant of that right in
the ETC Servitude; contrary servitude provisions reserve broad rights to the
grantor, including crossing rights; and Louisiana law requires any doubt to
be resolved against ETC.
DTM also argued that ETC failed to make a prima facie case that it is
entitled to the relief it seeks and would prevail on the merits; the district
court erred in holding that ETC was not required to prove irreparable harm
in order to obtain injunctive relief; and the district court erred in denying
DTM’s motion for clarification of judgment. 11 ETC asserts that the trial court was correct in its interpretation. It
argues that DTM has misinterpreted the limits placed on the grantor’s rights
under the ETC Servitude and has omitted provisions of the ETC Servitude in
its analysis. ETC requests that the district court ruling be affirmed.
The following parties filed amicus curiae briefs in support of DTM
and allowing the pipeline crossing: The State of Louisiana, Louisiana Oil
and Gas Association, Louisiana Landowner’s Association, American
Petroleum Institute, and The Williams Companies, Inc.4 There were no
filings in support of ETC’s position.
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.
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
prevail on the merits. 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.
4 Interstate Natural Gas Association of America attempted to file an amicus curiae brief in support of DTM after the filing deadline but was not granted leave of court to file its brief. 12 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.
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 ETC Servitude contains the following provisions:
Grantor, and under threat of expropriation, does hereby grant and convey to Grantee an exclusive servitude of use sixty feet (60’) in width and eighteen thousand three hundred seventy six and one tenth (18,376.10’) linear feet, more or less, for the purposes of constructing, maintaining, inspecting, operating, patrolling, repairing, replacing, renewing, and removing, in whole or in part, one (1) pipeline for the transmission of natural gas, its products, byproducts, and derivatives, as may be necessary or convenient for such purposes, upon, under, across, through and along the following described property[.] …
13 BUT ONLY as to the location specified for such servitude on the sketch attached hereto as Exhibit A[.] …
Nothing herein shall be construed as a conveyance of any part of the ownership of the above-described property or the mineral rights underlying the above-described property. …
[I]n no event shall Grantee, its successors or assigns be permitted to maintain more than one (1) pipeline in this servitude. …
Grantor may not use any part of the servitude if such use may unreasonably damage, destroy, injure, and/or interfere with the Grantee’s use of the servitude for the purposes for which this servitude is being sought by Grantee. Grantor reserves the right to use the servitude for any and all purposes not inconsistent with the purposes set forth in this servitude. Grantor’s uses may include but shall not be limited to right to cross the servitude and to construct roads, highways and bridges across it and the right to erect, install and construct over and across the servitude power lines, railroads, tram roads, switch tracks, dams, roads, fences and such other similar facilities which Grantor may desire for the use or convenience of its operations. Such roads, highways, bridges, and other facilities shall be erected, installed, constructed and maintained so as not to deprive Grantee of ingress and egress to the servitude and so as not to interfere unreasonably with the rights granted herein. Such roads, highways, bridges, and other facilities that will cross the servitude must cross the servitude at any angle of not less than forty-five (45) degrees to Grantee’s pipelines, provided that all of Grantee’s required and applicable spacings, including depth separation limits and other protective requirements are met by Grantor. The use of the servitude by Grantor shall be regulated by all appropriate ordinances, regulations, resolutions or laws of the governmental entity with authority over the servitude. Grantor must notify Grantee in writing before streets, roadways, utilities or other encroachments are installed. Grantee shall exercise its rights of ingress and egress in such a way so as to not unreasonably interfere with the operations of Grantor.
DISCUSSION
There were discussions in the arguments made by several parties
about whether the ETC Servitude is a predial servitude. Based on our Civil
Code, the ETC Servitude is not a predial servitude because it does not 14 involve two estates; rather, it is a right of use granted to ETC. The Civil
Code states that a right of use will be governed by usufruct and predial
servitude rules, to the extent the rules are compatible. Our Civil Code
anticipates multiple servitudes burdening a servient estate and states that
servitudes should be interpreted in favor of the servient estate, which in this
case is Red River (and its predecessors in title).
In requesting the TRO and preliminary injunction, ETC asserted that
it had an exclusive servitude and could prevent the crossing of DTM’s
pipeline. The district court agreed with ETC in its interpretation of the ETC
Servitude. That agreement gives ETC the right to lay one pipeline on the
grantor’s property within the defined space. ETC highlighted at district
court that the term “exclusive” is used and the grantor’s rights are outlined.
According to ETC, the ETC Servitude grants to ETC the use of an unlimited
depth and right to prevent another pipeline from crossing under ETC’s
pipeline. We do not agree. We do not find that the one-time use of the word
“exclusive” means that ETC’s servitude includes all depths and can
subjectively block the crossing of another pipeline.
The ETC Servitude is for one pipeline within the width described. It
also grants ETC the ability to access and maintain its pipeline. The depth of
the pipeline is not mentioned or described in the body of the ETC Servitude
or in the diagrams in Exhibit A. The word “exclusive” does not convey an
intent to specifically retain an exclusive depth when the servitude is silent as
to depth. Any uncertainty as to the depth of the pipeline was made certain at
15 the time the pipeline was completed. Once ETC laid its pipeline, its depth
became defined.5
The purpose of the ETC Servitude is “constructing, maintaining,
inspecting, operating, patrolling, repairing, replacing, renewing, and
removing” a natural gas pipeline. Therefore, now that the pipeline has been
completed, ETC is limited to its operating and maintenance activities
associated with this pipeline. Under the one-pipeline provision of the ETC
Servitude, ETC cannot lay a second pipeline below this current pipeline.
Therefore, the purpose of the servitude supports the finding that the depth is
limited to the space used for the current pipeline and does not extend to an
infinite depth.
The ETC Servitude states, “[O]ther facilities that will cross the
servitude must cross the servitude at any angle of not less than [45] degrees
to Grantee’s pipelines, provided that all of the Grantee’s required and
applicable spacings, including depth separation limits and other protective
requirements[are met.]” Because the ETC Servitude states depth separation
limits must be met, it anticipated the possibility of future underground
crossings.
The ETC Servitude did not state that ETC could prohibit underground
crossings; they only agreed to prevent any use that “may unreasonably
damage, destroy, injure, and/or interfere with” ETC’s use of the ETC
Servitude. A crossing pipeline that meets applicable spacing, depth
separation limits, and other protective requirements is not certain to damage,
destroy, injure, or interfere with ETC’s pipeline. The trial court found that
5 See W&T Offshore, L.L.C. v. Texas Brine Corp., 18-0950 (La. 6/26/19), 319 So. 3d 822, as corrected (July 18, 2019), 18-00950 (La. 1/29/20), 347 So. 3d 629. 16 safety was not an issue in this case. ETC did not prove that safety was an
actual concern and that DTM could not meet ETC’s requirements for
crossing under their pipeline. The record shows that ETC’s concern was
how it could gain a “commercial” benefit from the crossing. DTM has
shown that it is willing to work with ETC to ensure a proper and safe
crossing.
The district court erred in its interpretation of the ETC Servitude and
ETC has failed to show that it is entitled to relief and likely to prevail on the
merits. Therefore, we reverse the preliminary injunction granted in ETC’s
favor.6 Because we are reversing the district court’s judgment, we pretermit
discussion of the remaining assignments of error.
CONCLUSION
For the reasons set forth above, the preliminary injunction granted in
favor of ETC is reversed. Costs associated with this appeal are cast on ETC.
REVERSED.
6 We reverse this case based on the servitude agreement because that is where the district court abused its discretion. However, the public policy and interstate commerce arguments are also compelling reasons to deny such an “exclusive” agreement. 17 THOMPSON, J., concurs with written reasons.
I concur with the results of the opinion and write separately to address
the notion that through silence and/or ambiguity in an agreement, a
landowner should be deprived of the rights of ownership and that the oil and
gas industry should effectively be disrupted regarding the ability to construct
and maintain necessary pipelines in Louisiana for transmission of oil and
natural gas. Appellee suggests this Court should enforce against a
landowner an impenetrable iron-curtain of sorts from ground level to the
center of the earth, with the sole purpose of allowing the grantee, not the
landowner, to monetize the ability for others to cross width, length, and
depth of the existing servitude. Such a proposition is confounding when any
proposed crossings must be designed, constructed, and operated in a manner
so as not to interfere with the operation of the existing pipeline. A careful
reading of the agreement between the parties does not support the expansion
of the rights of the grantee, diminution of rights of the landowner, or lend
any creditability to a theory that would likely be considered violative of the
expansive research, writings, and instruction in property law the body of
work of the late Professor A.N. Yiannopoulos.
Here, the landowner granted a servitude of use for the construction of
one pipeline across its property, and the document actually defines the
servitude’s purpose:
…for the purposes of constructing, maintaining, inspecting, operating, patrolling, repairing, replacing, renewing, and removing, in whole or in part, one (1) pipeline for the transportation of natural gas, its products, byproduct, and derivatives, as may be necessary or convenient for such purposes, upon, under, across, through, and along the following described property…
Regarding the scope and extent of the servitude the agreement provides: 1 BUT ONLY as to the location specified for such servitude on the sketch attached hereto as Exhibit A, and at no other location without the express written consent of Grantor …
“Exhibit A” of the agreement consisted of 12 pages of illustrations and
detailed diagrams of the plans for the “60’ Wide Permanent R/W &
Easement,”7 which specified exacting coordinates and bearings and provided
extensive detail to the inch of depth of location of the pipeline within the
servitude.
Appellees would suggest that despite the expressed purpose of the
servitude as being for a natural gas pipeline, located within the precise
location detailed on the multiple pages of diagrams, that somehow the
parties intended that the schematic also included the 60’ in width servitude
to continue a distance of almost 4,000 miles to the center of the earth. There
was no diagram clarifying the servitude continued to the earth’s core. Had
the parties intended such a result, a thirteenth page, illustrating a cross-
section of the planet with the servitude depicted, could easily have been
added to the exhibit. If specification of width and location to the inch is
important, one would think continuing the servitude thousands of miles
toward the earth’s core would also have been mentioned, if understood and
agreed to by the parties. There is nothing written within the four corners of
the agreement to resolve that apparent ambiguity. The parties, likewise,
could have expanded the language used in defining the purpose of the
servitude paragraph on the first page of the agreement to include: “and to
assign to grantee the exclusive right to grant passage across this servitude
from the surface of the earth to its core.”
7 Not the “60’ Wide and 4,000 Mile Deep Permanent R/W and Easement.” 2 Yet another option to clarify the missing plain meaning of the words
and understanding of the parties could be to express the location of the
servitude extended to the earth’s core at any point in that section of the
agreement that detailed the parameters of the servitude. That did not
happen, either, in written word or diagram. To assert the grantee was
somehow granted exclusive authority outside the area necessary for the
operation and maintenance of the pipeline produces an absurd result and
begs for further judicial interpretation of the validity any similar agreement.
I suggest the language of the servitude created is exactly what it
details, i.e. the right “to prevent damage or interference with the efficient
maintenance, operation and patrol of the pipeline constructed pursuant
to this agreement” and nothing more. Anything more expansive, especially
rights extending thousands of miles, needed to likewise be detailed, and such
expansion of the agreement would confirm the clear intent of the parties. I
find unpersuasive any argument expanding the servitude to the center of the
earth stemming from an agreement that remained silent on that salient
consideration. I decline the invitation to further deprive landowners of the
rights of ownership or to disrupt the progression of the oil and gas industry
by expanding by thousands of vertical miles the dimensions and extent of
the servitude based upon the language contained in the agreement. As such,
I conclude the trial court was in error and its judgment below should be