     Case: 13-30990   Document: 00512854148   Page: 1   Date Filed: 12/02/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT

                                                                United States Court of Appeals
                                                                         Fifth Circuit

                               No. 13-30990                            FILED
                                                                December 2, 2014
                                                                  Lyle W. Cayce
                                                                       Clerk
FRANKS INVESTMENT COMPANY, L.L.C.,

                                         Plaintiff-Appellant,
v.

UNION PACIFIC RAILROAD COMPANY,

                                         Defendant-Appellee.




                Appeal from the United States District Court
                   for the Western District of Louisiana




Before DAVIS, DENNIS, and COSTA, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
      Plaintiff-Appellant Franks Investment Co., LLC (“Franks”) appeals from
the district court’s final judgment granting the motion for summary judgment
filed by Defendant-Appellee Union Pacific Railroad Co. (“Union Pacific”) and
dismissing Franks’s claims with prejudice. For the reasons set out below, we
AFFIRM.
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                       FACTS AND PROCEEDINGS
      This action is the latest in a series of legal battles between Franks and
Union Pacific over whether Franks has the right to cross Union Pacific’s train
tracks on certain property in Caddo Parish originally owned by the Levy family
at the turn of the 20th century. In 1902, the Levys sold a strip of land running
through its tract to the Texas & Pacific Railway Company (“T&P”). The deed
required T&P to “put in all necessary crossings” and “not to obstruct drainage.”
In 1913, the Levys dedicated a road across their land to Caddo Parish, and
agreed to “furnish the new posts” for this land on the condition that the Parish
move a fence and “put in three crossings over ditches.”
      In 1923, the Levys and T&P completed another transaction, the deed to
which is the focal point of this case (hereinafter the “1923 deed”). This
transaction involved the sale of a larger and longer strip of land to T&P, and
allowed the railroad company to move its tracks southwest. The 1923 deed
contains the language directly at issue in this appeal. After stating the
dimensions of the land, establishing the purchase price of $3,106, and granting
the property “unto said purchaser, its successors and assigns forever,” the deed
states:
            It is understood and agreed that the said Texas &
            Pacific Railway Company shall fence said strip of
            ground and shall maintain said fence at its own
            expense and shall provide three crossings across said
            strip at the points indicated on said Blue Print hereto
            attached and made part hereof, and the said Texas and
            Pacific Railway hereby binds itself, its successors and


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             assigns, to furnish proper drainage out-lets across the
             land hereinabove conveyed. 1

      Franks now owns a portion of the Levy property adjacent to the railroad
tracks. Union Pacific owns the strip of railroad property previously owned by
T&P. In 2007, Union Pacific began closing the crossings. Prior to the closing of
the crossings, they were apparently being used for oil and gas operations on
Franks’s land. Franks is asserting a right to three separate crossings. Two of
these crossings are within 10 to 12 feet of the locations shown in the blueprint
attached to the 1923 deed, and one is more than 1,400 feet away from the
location shown. Franks asserts that the crossings were in uncontested use for
“over 70 years.” Franks concedes that there are other points of access to the
property.
       Franks previously brought a possessory action against Union Pacific
seeking to restore its use of four railroad crossings over Union Pacific’s track. 2
After an appeal to this court sitting en banc to determine whether Franks’s
claims were federally preempted, 3 the district court ruled, following a bench
trial, that because Franks did not possess the crossings adversely to Union




1 Franks Inv. Co., LLC v. Union Pac. R. Co., 972 F. Supp. 2d 891, 894-95 (W.D. La. 2013).
2 “The possessory action is one brought by the possessor of immovable property or of a real
right therein to be maintained in his possession of the property or enjoyment of the right
when he has been disturbed, or to be restored to the possession or enjoyment thereof when
he has been evicted.” La. Code Civ. Proc. art. 3655.
3 Franks Inv. Co. LLC v. Union Pac. R. Co., 593 F.3d 404, 415 (5th Cir. 2010)

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Pacific’s ownership, it was merely a “precarious possessor.” 4 We affirmed in a
short per curiam opinion. 5
       Franks filed this petitory action next, 6 claiming actual ownership of the
rights to the three crossings referred to in the 1923 deed, rather than mere
possession. Franks argued that the 1923 deed transferring the property from
the Levys to T&P gave the Levys a predial servitude in the crossings. A predial
servitude is “a charge on a servient estate for the benefit of a dominant estate.” 7
       Union Pacific moved to dismiss, asserting that the deed, by its plain
language, did not create a predial servitude, and that any servitude that was
conveyed via the deed was strictly personal to the Levys, ending when they
transferred     the    land.    Declining      to   adopt     the    magistrate      judge’s
recommendation to grant the motion to dismiss, the district court denied the
motion in order to develop the facts of the case. After some written discovery
and depositions, Union Pacific moved for summary judgment, arguing that the
language could have created a personal servitude only, and, in the alternative,
that any predial servitude that the court would find should be limited in scope
to agricultural use.



4 Franks Inv. Co., LLC v. Union Pac. R. Co., 2011 WL 6157484, *3-4 (W.D. La. June 14, 2011).
5 Franks Inv. Co. LLC v. Union Pac. R.R. Co., 464 Fed. App’x 415, 416 (5th Cir. 2012).
6 “The petitory action is one brought by a person who claims the ownership, but who is not in

possession, of immovable property or of a real right therein, against another who is in
possession or who claims the ownership thereof adversely, to obtain judgment recognizing
the plaintiff’s ownership.” LA. CODE CIV. PROC. art. 3651.
7 LA. CIV. CODE art. 646. As discussed below, the law applicable to the interpretation of the

1923 deed is actually that in effect when the deed was confected, but this basic definition is
fundamentally the same.
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       The district court noted that discovery did not produce any information
bearing “on the legal interpretation of the 1923 deed.” 8 The court cited a
number of Louisiana cases finding the existence of a predial servitude in a
single clause based on a presumption established under Louisiana law. 9 It
noted, however, that none of those cases “presented an additional clause, such
as the drainage clause [in the 1923 deed], that had to be considered in
interpreting the contract.” 10 The drainage clause specifically binds T&P and
“its successors and assigns” to furnish drainage. 11 The clauses obligating T&P
to provide fencing and passage contained no such language. 12
       According to the district court, without the drainage clause and its
specific “successors and assigns” language, “[t]he general principles regarding
the interpretation of servitudes suggests [sic] that the crossing clause,
standing alone, would create a predial servitude.” 13 But given the existence of
the drainage clause, reading the right of passage as a predial servitude would
“render the successors and assigns language in the drainage clause merely
empty surplusage, which should be avoided.” 14 Moreover, Franks conceded
below that “[t]he use of the phrase ‘successors and assigns’ in the 1923 act was
either ‘bad lawyering’ or surplusage.” 15 The court concluded that the language


8 Franks, 972 F. Supp. 2d at 895.
9 Id. at 897-98.
10 Id. at 900.
11 Id. at 899.
12 Id.
13 Id. at 900 (emphasis added).
14 Id.
15 Id. at 897.

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was “unambiguous,” and refused to “attempt to substitute its judgment about
what the parties meant or intended.” 16 It therefore granted Union Pacific’s
motion for summary judgment and dismissed Franks’s claims with prejudice. 17
      On appeal, Franks argues that the district court erred in denying the
existence of a predial servitude in the three crossings.
                             STANDARD OF REVIEW
      This court “review[s] a district court’s grant of summary judgment de
novo,” applying the usual standards under FED. R. CIV. P. 56. 18 The panel must
resolve ambiguities in favor of the non-moving party. 19
                                    DISCUSSION
       This case turns on interpretation of the 1923 deed. “A document
purporting to create a predial servitude is interpreted in accordance with both
the general rules of contract construction as well as in accordance with specific
rules of construction for instruments that purport to create servitudes.” 20 We
apply the law in effect in 1923, at the time the deed was confected, 21 which was
the Revised Civil Code of Louisiana of 1870 (hereinafter “RCC”). The RCC was
amended in the 1970s, resulting in the modern Louisiana Civil Code, but both
the district court and the parties agree that the same result should obtain


16 Id. at 900.
17 Id.
18 RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).
19 Total E&P USA, Inc. v. Kerr-McGee Oil and Gas Corp., 719 F.3d 424, 434 (5th Cir. 2013).
20 Ryan v. Monet, 95-1332 p. 3-4 (La. App. 4 Cir. 12/28/95), 666 So. 2d 711, 714.
21 See, e.g., U. S. Daughters of 1812-Chalmette Chapter v. Louisiana Dep’t of Culture,

Recreation & Tourism, 404 So. 2d 941, 944 n.6 (La. 1981) (applying the law in effect when a
1921 contract was executed, not the version of the law which was revised in 1978).
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under the law in effect in 1923 or today. 22 Although Franks points to different
language in the RCC compared to the current version of the Civil Code, it has
not pointed to any material difference which would alter the district court’s
reasoning or the result it reached. Nevertheless, because the law of 1923 is the
applicable law, we primarily address the relevant provisions of the RCC, citing
wherever possible the modern equivalent in the Civil Code.
                     I. Principles of Contract Interpretation
       In 1923, as now, 23 the main goal of contract interpretation under
Louisiana law is determining the common intent of the parties:
              Legal agreements having the effects of law upon the
              parties, none but the parties can abrogate or modify
              them. Upon this principle are established the
              following rules:

              First—That no general or special legislative act can be
              so construed as to avoid or modify a legal contract
              previously made;

              Second—That courts are bound to give legal effect to
              all such contracts according to the true intent of all the
              parties;




22 In its ruling, the district court explained: “the parties have briefed the case with reference
to the current Civil Code articles governing servitudes. Neither party contends that the
articles in effect at the time of the 1923 instrument would direct a different outcome, so the
court has assessed the issues with reference to the current articles, as well as the
jurisprudence that has developed in this area over the intervening nine decades.” Franks,
972 F. Supp. 2d at 895 n.5 (W.D. La. 2013).
23 “Interpretation of a contract is the determination of the common intent of the parties.” LA.

CIV. CODE art. 2045.
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              Third—That the intent is to be determined by the
              words of the contract, when these are clear and explicit
              and lead to no absurd consequences;

              Fourth—That it is the common intent of the parties—
              that is, the intention of all—that is to be sought for; if
              there was a difference in this intent, there was no
              common consent and, consequently, no contract. 24

       To that end, we interpret words using their “general and popular use,” 25
unless they are “[t]erms of art or technical phrases,” in which case they “are to
be interpreted according to their received meaning with those who profess the
art or profession to which they belong.” 26 “When there is a doubt as to the true
sense of the words of a contract, they may be explained by referring to other
words or phrases used in making the same contract.” 27
       “When a clause is susceptible of two interpretations, it must be
understood in that in which it may have some effect, rather than in a sense




24 RCC art. 1945; LA. CIV. CODE 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' intent.”).
25 RCC art. 1946.
26 RCC art. 1947; LA. CIV. CODE art. 2047 (“The words of a contract must be given their

generally prevailing meaning. Words of art and technical terms must be given their technical
meaning when the contract involves a technical matter.”).
27 RCC art. 1948; LA. CIV. CODE art. 2050 (“Each provision in a contract must be interpreted

in light of the other provisions so that each is given the meaning suggested by the contract
as a whole.”). If, however, the contract cannot be interpreted in itself, “it may be explained
by referring to other contracts or agreements made on the same subject between the same
parties, before or after the agreement in question.” RCC art. 1949; LA. CIV. CODE art. 2053
(“A doubtful provision must be interpreted in light of the nature of the contract, equity,
usages, the conduct of the parties before and after the formation of the contract, and of other
contracts of a like nature between the same parties.”).
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which would render it nugatory.” 28 “Terms, that present two meanings, must
be taken in the sense most congruous to the matter of the contract.” 29 “All
clauses of agreements are interpreted the one by the other, giving to each the
sense that results from the entire act.” 30 All of these rules for interpreting
contracts have modern equivalents in the Civil Code, so the district court’s use
of some recent cases does not change the result.
       If a court may determine the unambiguous common intent of the parties
from the language of the contract under the rules set out above, the analysis
ends there. 31 “Under Louisiana law, a contract is ambiguous when it is
uncertain as to the parties’ intentions and susceptible to more than one
reasonable meaning under the circumstances and after applying established
rules of construction.” 32 Only when a contract is ambiguous is “extrinsic
evidence . . . admissible to clarify the ambiguity or to show the parties’
intent.” 33




28 RCC art. 1951; LA. CIV. CODE art. 2049 (“A provision susceptible of different meanings
must be interpreted with a meaning that renders it effective and not with one that renders
it ineffective.”).
29 RCC art. 1952; LA. CIV. CODE art. 2048 (“Words susceptible of different meanings must be

interpreted as having the meaning that best conforms to the object of the contract.”).
30 RCC 1955; LA. CIV. CODE art. 2050 (“Each provision in a contract must be interpreted in

light of the other provisions so that each is given the meaning suggested by the contract as a
whole.”).
31 See Taita Chem. Co., Ltd. v. Westlake Styrene Corp., 246 F.3d 377, 386 (5th Cir. 2001)

(applying Louisiana law and noting that “when the contract is not ambiguous, this Court
lacks the authority to look beyond the four corners of the document”).
32 Lloyds of London v. Transcon. Gas Pipe Line Corp., 101 F.3d 425, 429 (5th Cir. 1996)

(citation omitted).
33 McDuffie v. Riverwood Int’l Corp., 27,292, p.2 (La. App. 2 Cir. 8/23/95), 660 So. 2d 158, 160.

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       The district court concluded that the language of the 1923 deed was
unambiguous and did not convey a predial servitude with respect to the three
crossings; therefore, the court would not examine extrinsic evidence and would
not “attempt to substitute its judgment about what the parties meant or
intended.” 34 In order to address the question of whether the language of the
deed unambiguously conveyed a predial servitude, we must examine the
nature of predial servitudes and how they are created.
                     II. Background on Predial Servitudes
       Predial servitudes (or real servitudes) were defined in the RCC as “those
which the owner of an estate enjoys on a neighboring estate for the benefit of
his own estate. They are called predial . . . servitudes, because, being
established for the benefit of an estate, they are rather due to the estate than
to the owner personally.” 35 “A real or predial servitude is a charge laid on an
estate for the use and utility of another estate belonging to another owner.” 36
The RCC also established that it was necessary for there to be two estates and
for each to have a different owner, 37 then stated:
              It is necessary, in the third place, that the servitude
              have for its object the use or benefit of the estate in
              favor of which it is established.




34 Franks, 972 F. Supp. 2d at 900.
35 RCC art. 646 (emphasis in original). LA. CIV. CODE art. 646 provides: “A predial servitude
is a charge on a servient estate for the benefit of a dominant estate. The two estates must
belong to different owners.”
36 RCC art. 647.
37 RCC arts. 648 and 649; LA. CIV. CODE art. 646.

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              But it is not necessary that this benefit exist at the
              time of the contract; a mere possible convenience or
              remote advantage is sufficient to support a servitude.

              In order to render a servitude null, it is not enough
              that it should appear to be useless, it must be shown
              that at no time, and under no circumstances, can it
              possibly become useful to the person in whose favor it
              is enacted. 38

       One significant consequence of a predial servitude, as opposed to a
merely personal obligation, is that a predial servitude “is binding on
subsequent owners who acquire the servient estate without further mention of
the restriction in the act conveying the servient estate.” 39 Furthermore, “[o]ne
of the characteristics of a servitude is, that it does not oblige the owner of the
estate subject to it to do anything, but to abstain from doing a particular thing,
or to permit a certain thing to be done on his estate.” 40
       In 1923, unlike now, the RCC classified servitudes as either urban
servitudes (those established for the use of houses) or rural servitudes (those
established for the use of land), 41 and one of the principle rural servitudes was




38 RCC art. 650. LA. CIV. CODE art. 647 provides: “There must be a benefit to the dominant
estate. The benefit need not exist at the time the servitude is created; a possible convenience
or a future advantage suffices to support a servitude. There is no predial servitude if the
charge imposed cannot be reasonably expected to benefit the dominant estate.”
39 RCC Properties, L.L.C. v. Wenstar Properties, L.P., 40,996 p. 6 (La. App. 2 Cir. 6/5/06), 930

So. 2d 1233, 1237.
40 RCC art. 655. LA. CIV. CODE art. 651 provides: “The owner of the servient estate is not

required to do anything. His obligation is to abstain from doing something on his estate or to
permit something to be done on it. . . .”
41 RCC art. 710.

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the servitude of passage. 42 This is a distinction without a difference because
the servitude is defined essentially the same now as it was under the RCC:
               The right of passage, or of way, is a servitude imposed
               by law or by convention, and by virtue of which one has
               a right to pass on foot, on horseback, or in a vehicle, to
               drive beasts of burden or carts through the estate of
               another.

               When this servitude results from the law, the exercise
               of it is confined to the wants of the person who has it.

               When it is the result of a contract, its extent and the
               mode of using it is regulated by the contract. 43

       Under the RCC, as now, landowners could establish predial servitudes
by convention, i.e., by contract. 44 The RCC recognized that certain contractual
obligations could be real or personal, depending on the parties’ intent, and
recognized that explicit language is preferable to implication:
               Servitudes being established on estates in favor of
               other estates, and not in favor of persons, if the grant
               of the right declare it to be for the benefit of another




42 RCC art. 721.
43 RCC art. 722. LA. CIV. CODE art. 705 provides: “The servitude of passage is the right for
the benefit of the dominant estate whereby persons, animals, utilities, or vehicles are
permitted to pass through the servient estate. Unless the title provides otherwise, the extent
of the right and the mode of its exercise shall be suitable for the kind of traffic or utility
necessary for the reasonable use of the dominant estate.”
44 RCC art. 709 (“Owners have a right to establish on their estates, or in favor of their estates,

such servitudes as they deem proper . . . .”). LA. CIV. CODE art. 654 provides: “Predial
servitudes may be natural, legal, and voluntary or conventional. Natural servitudes arise
from the natural situation of estates; legal servitudes are imposed by law; and voluntary or
conventional servitudes are established by juridical act, prescription, or destination of the
owner.”
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              estate, there can be no doubt as to the nature of this
              right, even though it should not he called a servitude. 45

       On the other hand, if the act does not declare that the grant of a right is
for the benefit of an estate but merely for the benefit of a person, the RCC
provided that it might still be a predial servitude if it conveyed “a real
advantage to the estate” as opposed to “personal convenience to the owner.” 46
Furthermore:
              If the right granted be of a nature to assure a real
              advantage to an estate, it is to be presumed that such
              right is a real servitude, although it may not be so
              styled.

              Thus, for example, if the owner of a house contiguous
              to lands bordering on the high road, should stipulate
              for the right of passing through lands, without it being
              expressed that the passage is for the use of his house,
              it would be not the less a real servitude, for it is
              evident that the passage is of real utility to the
              house. 47

However:
              If, on the other hand, the concession from its nature is
              a matter of mere personal convenience, it is considered
              personal, and can not [sic] be made real but by express
              declaration of the parties.




45 RCC art. 754 (emphasis added). LA. CIV. CODE art. 731 provides: “A charge established on
an estate expressly for the benefit of another estate is a predial servitude although it is not
so designated.”
46 RCC art. 755.
47 RCC art. 756. LA. CIV. CODE art. 733 provides: “When the right granted be of a nature to

confer an advantage on an estate, it is presumed to be a predial servitude.”
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              Thus for example, if the owner of a house near a
              garden or park, should stipulate for the right of
              walking and gathering fruits and flowers therein, this
              right would be considered personal to the individual,
              and not a servitude in favor of the house or its owner.

              But the right becomes real and is a predial servitude,
              if the person stipulating for the servitude, acquires it
              as owner of the house, and for himself, his heirs and
              assigns. 48

As a backstop, the RCC provided: “Servitudes which tend to affect the free use
of property, in case of doubt as to their extent or the manner of using them, are
always interpreted in favor of the owner of the property to be affected.” 49
       Louisiana courts have also long recognized that parties to a contract may
choose to create neither a predial servitude nor personal servitude but rather
a personal obligation, i.e, an agreement that focuses on the duty of an obligor
rather than a benefit either to an estate (predial servitude) or to a person
(personal servitude), and which does not bind the obligor’s successors-in-
interest. In 1911, the Louisiana Supreme Court quoted with approval French
civil law commentary to that effect:
              In case of doubt as to the nature of the service that has
              been stipulated, it is for the courts to decide, finally,
              whether the parties have intended to establish a real
              servitude or a personal servitude, or a simple right of




48 RCC art. 757. LA. CIV. CODE art. 734 provides: “When the right granted is merely for the
convenience of a person, it is not considered to be a predial servitude, unless it is acquired by
a person as owner of an estate for himself, his heirs and assigns.”
49 RCC art. 753. LA. CIV. CODE art. 730 provides: “Doubt as to the existence, extent, or manner

of exercise of a predial servitude shall be resolved in favor of the servient estate.”
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              obligation. The terms of the act of agreement should
              furnish the principal element of the decision. 50

The Louisiana Third Circuit later noted that the characterization of a clause
as either a predial servitude, personal servitude, or personal obligation is a
question of law determined by the ordinary principles of contract
interpretation set out above:
              When contracting parties do not specify the kind of
              right they intended to create, the question may arise
              whether they intended to create a predial servitude, a
              personal servitude, or merely a personal obligation.
              This question is resolved in Louisiana by applying
              Civil Code articles 754-58, the rules of interpretation
              used to ascertain the kinds of rights created by
              juridical acts lacking express designation. 51

       In short, under the RCC, parties to a contract may remove all doubt by
expressly declaring a predial servitude, and if they do not, the interpretation
depends on the nature of the right granted or obligation required under the
language of the contract. As the statutes set out above illustrate, the language
of the contract must control the interpretation, and the parties would do well
to make explicit their intention to create or not create a predial servitude. Case
law bears out this focus on the language of the contract, both under the RCC
and the current Civil Code. See, e.g., Burgas v. Stoutz, 174 La. 586, 591 (1932)


50 Louisiana & A. Ry. Co. v. Winn Parish Lumber Co., 131 La. 288, 305, 59 So. 403, 408 (1911)
(on original hearing) (quoting Baudry-Lacontinerie, Traité de Droit Civil-Des Biens (2d ed.
1899), p. 539). The court also quoted a passage from the Commentary of M. Huc which
explained why personal obligations, i.e., those not running with the land, are permitted. Id.
51 McLure v. Alexandria Golf & Country Club, Inc., 344 So. 2d 1080, 1091 (La. Ct. App. 1977).

The McLure case, like the Louisiana & A. Ry. Co., came before the 1978 Code revisions and
therefore unquestionably applies to the 1923 instrument at issue in this case.
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(noting that language in a deed granting use of a driveway to “the purchaser,
its successors and assigns” would have created a predial servitude); Buckhorn
Ranch, L.L.C. v. Holt, 2008-1509 p. 2 (La. App. 3 Cir. 5/6/09), 10 So. 3d 367,
369, writ denied, 2009-1263 (La. 9/18/09), 17 So. 3d 977 (creating a predial
servitude with the phrase “these servitudes shall be predial servitudes”).
       Nevertheless, both the RCC and the current Civil Code create a
presumption in favor of predial servitudes when the right confers an advantage
to an estate. 52 Louisiana courts have applied the presumption to infer the
creation of predial servitudes in a number of instances. In Burgas v. Stoutz, for
example, the Supreme Court of Louisiana found that a provision granting the
use of a driveway on lot B to the owners of lot A was “of real utility” to lot A
because it gave lot A “more free space either for building or for flowers, or for
a garden, and making the property more desirable and valuable,” and therefore
created a predial servitude. 53
       Even in some cases where language in an act of sale specifically names
one of the parties to the act as the beneficiary of the servitude, Louisiana courts
have found a predial servitude rather than a personal servitude. In McLure, 54
the Court of Appeal held that an act of sale that stated “the vendee herein
agrees to allow the vendor an outlet to Highway No. 165 and over and across
the property herein purchased” created a predial servitude despite the use of
the term “vendor,” which could potentially have been interpreted to confer a
right only to the seller. In Whitney Nat. Bank of New Orleans v. Poydras Ctr.


52 RCC art. 756; LA. CIV. CODE art. 733.
53 174 La. at 592.
54 344 So.2d at 1089.

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Associates, 55 the court found that the language “[s]aid Metropolitan Bank to
have the right to use the aforesaid common alley” did not thwart the creation
of a predial servitude because it “matters not that the language of the Act was
couched in personal terms, for the right created was a real advantage to the
dominant estate and the reservation of the right to build was likewise a real
advantage to the servient estate.” 56 Thus, there is no question that although it
is better for contracting parties to be explicit regarding their intention to create
a predial or personal servitude, courts will not hesitate to apply the predial
servitude presumption in appropriate circumstances.
                      III. Interpretation of the 1923 Deed
       We turn now to the relevant language in the 1923 deed:
              It is understood and agreed that [1] the said Texas &
              Pacific Railway Company shall fence said strip of
              ground and shall maintain said fence at its own
              expense and shall provide three crossings across said
              strip at the points indicated on said Blue Print hereto
              attached and made part hereof, and [2] the said Texas
              & Pacific Railway hereby binds itself, its successors
              and assigns, to furnish proper drainage out-lets across
              the land hereinabove conveyed. 57

For convenience and consistency with the district court opinion, we will refer
to clause [1] as the “crossings clause,” and to clause [2] as the “drainage clause.”
       In essence, Franks argues that the crossings clause creates a predial
servitude because it was established to provide a benefit to the property owned


55 Whitney Nat. Bank of New Orleans v. Poydras Ctr. Associates, 487 So. 2d 120, 122–23 (La.
Ct. App. 1986), writ denied, 492 So. 2d 1221 (La. 1986).
56 Id.
57 Franks, 972 F. Supp. 2d at 894-95 (emphasis added).

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                                   No. 13-30990


by the Levys. Therefore, Franks argues, it is presumed to be a predial servitude
under the RCC provisions and case law discussed above. The district court,
citing much of the case law discussed above, agreed with Franks that the cases
“are persuasive that the crossings clause, standing alone, would create a
predial servitude.” 58 However, the Court continued, “the parties have not
drawn the court’s attention to a case that presented an additional clause, such
as the drainage clause, that had to be considered in interpreting the contract.
For that reason, the caselaw [sic] is of less assistance than usual.” 59
       We agree with the district court’s assessment. If the crossings clause
stood alone in the 1923 deed, then Franks likely would be correct that it would
be subject to the predial servitude presumption. It does not stand alone,
however. It is in the same sentence as the drainage clause, and we must
interpret both provisions which satisfies “both the general rules of contract
construction as well as in accordance with specific rules of construction for
instruments that purport to create servitudes.” 60 As the district court
explained (and we agree):
              The court must, however, keep in mind the provisions
              of the Civil Code that (1) each provision in a contract
              must be interpreted in light of the other provisions so
              that each is given the meaning suggested by the
              contract as a whole and (2) doubt as to the existence of
              a predial servitude shall be resolved in favor of the
              servient estate. The court must also, if possible, give
              practical effect to all parts of the contract, so as to



58 Id. at 900.
59 Id.
60 Ryan, 666 So. 2d at 714.

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                                      No. 13-30990


              avoid neutralizing or ignoring any of them or treating
              them as surplusage. 61

       The problem for Franks is that Franks is trying to establish a predial
servitude by presumption because the crossings clause does not expressly
create a predial servitude, but the parties to the 1923 deed showed that they
knew how to establish a predial servitude expressly in the drainage clause—
not just in part of the same deed but in the very same sentence. Specifically,
whereas the crossings clause binds only Texas & Pacific Railway Company to
maintain fences and provide crossings (which does not necessarily establish a
predial servitude), the drainage clause binds not only Texas & Pacific Railway
Company but “itself, its successors and assigns,” which is sufficient to create
an express predial servitude. 62
       The parties knew how to create an express servitude by adding the
“successors and assigns” language but added that language only to the
drainage clause, limiting the obligations in the crossings clause to “Texas &
Pacific Railway Company” only. As the district court reasoned:
              If the parties intended all of the obligations to be
              predial in nature, they could have easily applied the
              successors and assigns language to the entire
              sentence. They did not. Instead, they specifically made
              one obligation (drainage) binding on successors and
              assigns, and did not impose that requirement on two
              other obligations (fencing and crossings). The most
              reasonable interpretation in accordance with


61 Franks, 972 So. 2d at 900 (citing LA. CIV. CODE arts. 730 and 2050, which are the current
equivalents of RCC arts. 753, 1952, and 1955); see also RCC art. 1951.
62 See Burgas, 174 La. at 591 (noting that language in a deed granting use of a driveway to

“the purchaser, its successors and assigns” would have created a predial servitude).
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                                         No. 13-30990


                 Louisiana law is that the obligations are to be treated
                 differently. 63

                                              ***
                 The most faithful application of these [interpretation]
                 principles to the language of the 1923 deed, as a whole,
                 results in a determination that the crossings clause
                 did not give rise to a predial servitude. This court
                 should not, ninety years after the formation of the
                 contract, interfere with the unambiguous language
                 and attempt to substitute its judgment about what the
                 parties meant or intended. 64

          We agree. Although Franks puts forward a number of arguments on
appeal, none of them offers a convincing explanation for why the parties
included the “successors and assigns” language in the drainage clause but not
the crossings clause, if they intended both clauses to establish predial
servitudes. Nor has Franks pointed to any material difference between the
RCC provisions applicable in 1923 versus the Civil Code provisions applicable
today and on which the district court relied. Indeed, as the parallel citations in
this opinion show, virtually every relevant RCC article has a modern
equivalent in the Civil Code, and the cases cited by the district court and herein
do not depend on any of amendments for their reasoning or results.
          In short, under the law applicable to the interpretation of the 1923 deed,
we conclude that the contract is unambiguous. It does not establish a predial
servitude with respect to Texas & Pacific Railway Company’s obligation to
provide three crossings across what was then its property. Rather, it is merely


63   Franks, 972 So. 2d at 899 (footnote omitted).
64   Id. at 900.
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                                No. 13-30990


a personal obligation which does not bind Texas & Pacific Railway Company’s
successors-in-interest.
                              CONCLUSION
      For the reasons set out above, we AFFIRM.




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                                     No. 13-30990
JAMES L. DENNIS, Circuit Judge, dissenting:
      At issue in this case is whether the owners of the Levy family plantation
in Caddo Parish, Louisiana, who in 1923 deeded a strip of land bisecting the
plantation to the Texas and Pacific Railway Company for railroad use, reserved
a predial servitude of passage across the railroad’s strip of land for the benefit
of the plantation. The 1923 deed, in pertinent part, provides:
             It is understood and agreed that the said Texas &
             Pacific Railway Company shall fence said strip of
             ground and shall maintain said fence at its own
             expense and shall provide three crossings across said
             strip at the points indicated on said Blue Print hereto
             attached and made part hereof, and the said Texas and
             Pacific Railway hereby binds itself, its successors and
             assigns, to furnish proper drainage out-lets across the
             land hereinabove conveyed.
      The parties agree that the provision requiring the railroad to “provide
three crossings across said strip” created a servitude of passage. (A servitude
is a “charge laid on an estate.” Art. 647.) 1 The parties dispute, however,
whether the deed created a personal servitude (that is, a right of passage
benefitting specific persons—here, the Levy family—and terminating with the
lives of those persons) or a predial servitude (that is, a right of passage
benefitting an estate—here, the Levy plantation—whoever may come to own
it). The majority, however, rejects both positions in favor of a third option the
parties did not raise: that the deed did not impose any charge upon an estate,
but only imposed a personal obligation on the part of the Texas and Pacific
Railway Company (which no longer exists and has been replaced as owner of



      1  I agree with the majority that the 1870 Revised Civil Code of Louisiana, which was
in effect in 1923, governs this case rather than the modern version. Hereinafter, unless
specified otherwise, all citations to codal provisions refer to the 1870 code.
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                                       No. 13-30990
the railroad strip by the appellant, the Union Pacific Railroad Company). For
the reasons that follow, I respectfully dissent.
       It should be obvious that, when the Levy family sold a strip of land to
the Texas and Pacific Railway Company and included in the deed the
reservation that the railroad “provide three crossings across” the purchased
land at designated places, the parties intended to afford a right to use the
crossings. There is no reasonable explanation why the Levy family would have
reserved the right to crossings as a condition of the land sale if they would have
been trespassers when stepping foot on the crossings. It is self-evident that
the deed’s provision of three crossings encompasses a right of passage across
those crossings, and, under the Civil Code, “[t]he right of passage, or of way, is
a servitude.” Art. 722 (emphasis added); see also Art. 721 (stating that the
right of passage is one of the “principal rural servitudes”). Thus, we must start
from the premise that, unless shown otherwise, the parties intended to create
what the Civil Code provides: a servitude.                  The question presented, as
recognized and argued by the parties, is whether they intended for the
servitude of passage to be predial or personal. 2
       The deed does not say which sort of servitude was intended and,
therefore, “the question whether the parties intended to create a predial


       2Theoretically, the parties could have created only a purely personal right of passage
for the members of the Levy family and a corresponding purely personal obligation by the
Texas and Pacific Railway Company to allow such passage. See Art. 1764 (“All things that
are not forbidden by law, may legally become the subject of, or the motive for contracts.”);
Art. 1885 (“All things, in the most extensive sense of the expression, corporeal or incorporeal,
movable or immovable, to which rights can legally be acquired, may become the object of
contracts.”). The question, however, is whether there is any valid reason to think that the
parties did not intend to create either a personal or predial servitude of passage. For the
reasons explained infra, I do not think there is.
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                                 No. 13-30990
servitude or another right is to be made in accordance with articles [755]
through [757] of the Civil Code.” 4 A. N. Yiannopoulos, Louisiana Civil Law
Treatise: Predial Servitudes, § 6:28 (4th ed.). Article 755 instructs that the
question turns on “whether the right granted be of real advantage to the estate,
or merely of personal convenience to the owner.”           The next two articles
elaborate. Article 756, the most critical article for our purposes, provides:
            If the right granted be of a nature to assure a real
            advantage to an estate, it is to be presumed that such
            right is a real servitude, although it may not be so
            styled.
            Thus, for example, if the owner of a house contiguous
            to lands bordering on the high road, should stipulate
            for the right of passing through lands, without it being
            expressed that the passage is for the use of his house,
            it would be not the less a real servitude, for it is
            evident that the passage is of real utility to the house.
      Article 757 provides that, “[i]f, on the other hand, the concession from its
nature is a matter of mere personal convenience, it is considered personal, and
can not be made real but by express declaration of the parties.” It gives as an
example “the right of walking and gathering fruits and flowers [in] a garden or
park.” Art. 757.
      Here, there can be little doubt that the railroad crossings “assure a real
advantage to an estate” (article 756) rather than provide a “mere personal
convenience” to the original 1923 owners (article 757).
      First, the benefit to the plantation estate is clear. Generally, plantation
owners want access to their plantations, and more convenient means of access
are preferred over less convenient alternatives. The railroad crossings here
allow the owner of a plantation that has been divided by the railroad’s strip to

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                                       No. 13-30990
conveniently cross from one section of the estate to the other. Absent the
crossings, a less convenient, circuitous path would be required. The crossings
are a plain advantage. Moreover, without the railroad crossings, the land that
has been divided by an intersecting railroad is rendered less accessible, and its
value is consequently diminished. Put another way, the crossings served to
increase and/or maintain the value of the Levy family’s plantation. See Burgas
v. Stoutz, 141 So. 67, 69 (1932) (holding that a servitude of passage was predial
rather than personal because, inter alia, it had the effect of “making the
property more desirable and valuable”). 3
       Second, it is clear that the benefit provided is to the estate itself rather
than to an individual. See State v. Cefalu, 288 So. 2d 332, 338 (La. 1974) (“An
examination of the grant reveals that it meets the basic requirement of predial
servitudes—it is clearly of benefit to a dominant estate, namely the Cefalu
tracts. The effect of the grant was to guarantee the Cefalu tracts direct access
to each other. As a result it is clear that the Cefalu tracts were benefited.”);
Plaisance v. Gros, 378 So. 2d 178, 179 (La. Ct. App. 1979) (holding that the
right of way contained in a 1906 deed was a predial servitude because it
conferred “a real advantage to the then Dugas estate and not merely a personal
convenience to the owner”). In fact, it is difficult to imagine a more plain



       3 At oral argument, the Union Pacific Railroad Company contended that we could not
infer a benefit to the estate in the absence of specific supporting evidence. That argument is
not persuasive. The benefit that adheres to a landowner when he is afforded convenient
access from one part of his land to another is the sort of common knowledge of which we can
infer. See, e.g., McGuffy v. Weil, 120 So. 2d 358, 362 (La. Ct. App. 1960) (“That the erection
and operation of commercial establishments, not only adjacent to residential property but in
the immediate vicinity thereof, sometimes adversely affect the use and enjoyment of one’s
home is a matter of common knowledge.”); State v. Cefalu, 288 So. 2d 332, 338 (La. 1974)
(finding a benefit to an estate based on “[a]n examination of the grant”).
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                                  No. 13-30990
benefit to an estate bisected by a railroad than passage over crossings affording
the tracts “direct access to each other.” See Cefalu, 288 So. 2d at 338. In Taylor
v. New Orleans Terminal Co., 52 So. 562 (La. 1910), for example, the Louisiana
Supreme Court had little difficulty concluding that a railroad’s contract to
provide crossings afforded a predial, not personal, servitude: “The right
followed the property and was not personal to the owner. The original owner
acquired the right as a servitude for the benefit of the estate and not for his
own benefit.” Id. at 564.
      Because it is clear that the railroad crossings provide a benefit to the
estate, “it is to be presumed” under article 756 that they constitute a predial
servitude. Thus, the question becomes, are there sufficient indicia in the
record to rebut the predial presumption and rather find, as the Union Pacific
Railroad Company argues, that the parties intended a personal servitude or,
as the majority concludes, that the parties intended only a personal obligation?
      Case law from Louisiana courts suggests that less-than-clear indications
that a servitude may be personal rather than predial do not suffice to rebut the
predial presumption under article 756. For example, in Ogden v. Bankston,
398 So. 2d 1037 (La. 1981), at issue was, as here, a 1923 property transfer. Id.
at 1040. There, the terms of the act of sale provided a servitude of passage “to
the vendor.” Id. That the right of passage was granted, under the text of the
document, “to the vendor” rather than to the estate might tend to suggest, of
course, that the parties intended to create a personal right, that is, a personal
servitude, for the vendor.    However, the Louisiana Supreme Court, citing
article 756, explained that such suggestion was insufficient to overcome the
predial presumption: “Although the language creating the servitude in the
1923 act of sale recites that the passageway was granted ‘to the vendor,’ it is
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                                  No. 13-30990
evident that the right of passage was a real benefit to the estate itself. For this
reason, the servitude must be construed as a real right, not one which was
personal to the grantee.” Id. at 1041. In addition to Ogden, other similar cases
include Whitney National Bank of New Orleans v. Poydras Center Associates,
487 So. 2d 120, 123 (La. Ct. App. 1986) (“It matters not that the language of
the Act was couched in personal terms, for the right created was a real
advantage to the dominant estate . . . .”), and McLure v. Alexandria Golf and
Country Club, Inc., 344 So. 2d 1080, 1089 (La. Ct. App. 1977) (“[D]efendant[]
argu[es] that the servitude did not outlive Kaiser because it was given to
‘vendor’ and not to ‘vendor, his heirs and assigns.’ It has been specifically held
that the addition of such language is not necessary for property rights in the
nature of a servitude to pass to one’s heirs.”).
      Here, there is a persuasive reason to find that the parties intended for
the railroad crossings to be a predial servitude rather than, as the Union
Pacific Railroad Company argues, a personal one. The 1923 deed states in its
opening clause:
            This instrument made and executed by and between
            Louis Levy, resident of said parish and state [Caddo
            Parish, Louisiana], George W. Levy, Miss Julia Levy,
            Miss Fannie Levy, and Miss Carolina Levy,
            represented herein by Louis Levy, her agent and
            attorney in fact, residents of the City of New York, and
            State of New York; Aaron Levy, a resident of the Parish
            of Caddo and State of Louisiana, and Mrs. Annie Levy
            Dreyfus, wife of Leon Dreyfus, resident of the City of
            London, in the Kingdom of Great Britain, represented
            herein by Louis Levy, her agent and attorney in fact,
            parties of the first part, and the Texas & Pacific
            Railway Company, a corporation organized under the
            laws of the United States of America, whereof J. L.
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                                  No. 13-30990
            Lancaster and C. L. Wallace are Receivers, party of the
            second part.
      (Emphasis added.) On one side of the 1923 transaction was the railway,
and on the other side were a number of people, at least some of whom,
importantly, resided outside Louisiana, in New York City and London. If the
appellant was correct that the parties to this transaction intended for the
railroad crossings to be a personal servitude, it would mean that the parties
intended for the railroad crossings to benefit persons residing a world away. It
is fantastical to presume, without evidence or expression, that persons residing
in New York City and London had reserved the right of passage in Caddo
Parish, Louisiana, as a matter of personal convenience similar to, e.g., the right
of gathering fruits and flowers in a garden. See Art. 757. (Contrast, for
example, Deshotels v. Fruge, 364 So. 2d 258, 260-61 (La. Ct. App. 1978),
wherein the court found that a servitude was personal based on actual
testimony about the beneficiary’s personal reasons for desiring the servitude.)
Based on the record in this case, the far more evident answer is that these
persons in New York and London “acquired the right as a servitude for the
benefit of the estate and not for [their] own benefit.” See Taylor, 52 So. at 425
(holding that railroad crossings were a predial servitude); cf. Gillis v. Nelson,
1861 WL 3840 (La. 1861) (stating, with respect to an irrigation servitude, that
“the contract does not appear to us to be personal, for its object could only be
for the advantage of the respective tracts of land”).
      To reach its contrary conclusion, the majority points to that part of the
1923 deed which states that “the said Texas and Pacific Railway hereby binds
itself, its successors and assigns, to furnish proper drainage out-lets across the
land hereinabove conveyed.” (Emphasis added.) The majority explains:

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                                  No. 13-30990
            The problem for Franks is that Franks is trying to
            establish a predial servitude by presumption because
            the crossings clause does not expressly create a predial
            servitude, but the parties to the 1923 deed showed that
            they knew how to establish a predial servitude
            expressly in the drainage clause—not just in part of the
            same deed but in the very same sentence. Specifically,
            whereas the crossings clause binds only Texas &
            Pacific Railway Company to maintain fences and
            provide crossings (which does not necessarily establish
            a predial servitude), the drainage clause binds not only
            Texas & Pacific Railway Company but “itself, its
            successors and assigns,” which is sufficient to create
            an express predial servitude.
      Ante, at 19.
      Respectfully, I disagree that the “successors and assigns” language
relating to the railroad’s drainage obligations rebuts the predial presumption
as to the right of passage. The drainage obligations are separate and apart—
distinct—from the right of passage across the railroad crossings, and the
railroad’s agreement to bind itself and “its successors and assigns” to furnish
drainage outlets across the land conveyed to it does not in any way add to or
detract from the predial servitude of passage granted for the benefit of the Levy
estate. Whether it was unusual for the railroad to bind itself, “its successors
and assigns,” in its obligation, or why it did so, is not a material issue in this
case, but a matter that could vary widely depending on the company, the
landowners, the terrain, and the particular circumstances involved. Nothing
in the Civil Code, other legislation, or custom prevented the landowners from
obtaining both a predial right of passage in favor their estate across the
railroad’s estate and the railroad’s obligation, binding on its “successors and


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                                  No. 13-30990
assigns,” to “furnish proper drainage out-lets across the land hereinabove
conveyed.”
      The majority asks the wrong question: why did the parties “include the
‘successors and assigns’ language in the drainage clause”? See ante, at 20. I
see no reason for the plaintiffs to be required to explicate the drainage clause’s
meaning. The better question is, did the parties intend to create a predial
servitude of passage across the railroad crossings even though they did not
include “successors and assigns” language in that provision of the deed? For
the reasons explained, the law gave them no reason to think that the absence
of “successors and assigns” language indicated neither a predial or personal
servitude but rather a personal obligation.         The right of passage “is a
servitude,” the Code says. Art. 722. In fact, the Code describes the right of
passage as one of the “principal rural servitudes.” Art. 721 (emphasis added).
And the Louisiana courts have evinced no hesitation to construe rights of
passage, including those over railroad crossings, to be predial servitudes. See,
e.g., Taylor, 52 So. at 564. It was in the context of the Civil Code’s articles on
servitudes that the parties drafted the deed, and, when considered in that
light, the addition of “successors and assigns” language with respect to the
railroad crossings was not necessary. It was, rather, a reasonable omission. I
suspect that, had the Levy family any way of knowing how this court would
construe their deed nearly a century after it was written, they would be
surprised to learn that, when they required railroad crossings as a condition
for the sale of their land, they did not obtain a property right at all, but only a
contractual right with one single railroad, meaningless against any other
railroad that may succeed it.


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                                 No. 13-30990
      In sum, under article 756, which provides the controlling rule of law in
this case, this court must presume that the railroad crossings afforded in the
1923 deed constitute a predial servitude, and I do not believe that there is a
reasonable basis to find that the presumption has been rebutted. On the
contrary, there are persuasive reasons to conclude that the parties indeed
intended to create a predial servitude for the benefit of the Levy family
plantation. Therefore, I respectfully dissent from the majority’s conclusion,
argued for by none of the parties, that, as a matter of law, the deed created
nothing more than a purely personal right of passage for the members of the
Levy family as individuals and a personal obligation on the part of the Texas
and Pacific Railway Company to allow such passage, and not a predial right
for the benefit of the Levy plantation estate.




                                       31
