        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                Fifth Circuit

                                                                  FILED
                                                              November 20, 2007

                                 No. 06-31119                Charles R. Fulbruge III
                                                                     Clerk

ANN LYNNE MIRANDONA ROSE

                                           Plaintiff-Appellant
v.

TENNESSEE GAS PIPELINE COMPANY, formerly known as Tennessee
Gas Transmission Company

                                           Defendant-Appellee



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


Before WIENER, DEMOSS, and PRADO, Circuit Judges.
WIENER, Circuit Judge:
      Plaintiff-Appellant Ann Lynne Mirandona Rose, as joint owner of an
undivided interest in property across which Defendant-Appellee Tennessee Gas
Pipeline Company (“TGP”) holds a pipeline “easement” or “right of way” obtained
in an expropriation proceeding against her predecessor in title, appeals from the
district court’s dismissal of her claims against TGP as time barred by
prescription. Concluding that the district court erred by failing to ground its
analysis in the fundamental recognition that the expropriation judgment created
                                       No. 06-31119

a servitude over the subject property, we reverse the district court’s dismissal1
and remand for further proceedings consistent with this opinion.
                           I. FACTS AND PROCEEDINGS
       Two interstate gas pipelines owned and operated by TGP, formerly known
as Tennessee Gas Transmission Company, are located in parallel canals or
“flotation ditches” that intersect Rose’s property near Breton Sound in coastal
Louisiana. TGP lawfully obtained authority to build the two pipelines across
Rose’s property at different times by instigating the judicial procedure known in
Louisiana as “expropriation,” which is “practically synonymous” with eminent
domain.2
       TGP dredged the first canal and laid the first pipeline in it in 1958, after
obtaining a favorable judgment in an expropriation proceeding in Louisiana
state court and subsequently settling with Rose’s predecessor in interest, Violet
Trapping Company (“Violet”), while an appeal was being pursued. Under the
settlement, Violet granted TGP the right to dredge a canal approximately forty
feet in width and to lay a pipeline within those bounds.
       In 1964, following unsuccessful negotiations, TGP prevailed in a second
expropriation proceeding against Violet, in which the court granted TGP the
right to dredge a second canal and lay a pipeline therein. The judgment
specified that TGP could dredge a fifty-foot canal parallel to and 100 feet east of
the 1958 canal, and it awarded Violet compensation for the taking.3 Violet


       1
         It is not clear to us whether the dismissal was for failure to state a claim (Rule
12(b)(6)) or summary judgment (Rule 56).
       2
        Tenn. Gas Transmission Co. v. Violet Trapping Co., 200 So. 2d 428, 433 (La. App. 4
Cir. 1967) (explaining that expropriation is “the right to take private property for public
purpose and utility upon the payment first of just compensation”).
       3
           The relevant language of the expropriation judgment reads:

       IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that subject to the
       limitation and reservation hereinafter made, plaintiff [Tennessee Gas] shall

                                              2
                                        No. 06-31119

appealed that judgment, but the Louisiana Fourth Circuit Court of Appeal
affirmed.4
      Although the Louisiana appellate court upheld the judgment, it noted in
dicta that Violet retained the right to seek damages for future erosion that might
result from any wrongful act by TGP. The court stated:
      We have not failed to consider evidence indicating that the first
      canal is now considerably wider at certain points than when
      dredged in 1958. Nor have we overlooked the testimony . . . that the
      erosion between the two canals might eventually destroy the middle
      land area, resulting in one wide canal. Whatever complaint [Violet]
      might have that the widening of the first canal has resulted from
      fault of the plaintiff, does not address itself to the court in this
      expropriation proceeding. If in the future it should develop that
      defendant's property is damaged by some fault of the plaintiff . . .
      the defendant may then have recourse to the courts in a proper
      proceeding according to law.5

      Alleging, inter alia, that TGP’s wrongful failure to maintain the canals
allowed the canals to increase in width and erode her property, Rose filed a
Class Action Petition for Damages against TGP, El Paso Energy Corporation (“El
Paso”), and Popich Marine Construction (“Popich”) on June 17, 2005, in


      have and enjoy the right of way and easement . . . in, under, upon, across and
      through the property herein above described . . . for the purpose of laying,
      constructing, maintaining, operating, altering, replacing or removing one pipe
      line with necessary appurtenances, for the transmission of natural gas,
      including . . . the right to dredge or open a flotation ditch approximately 50' in
      width with a plug at the North end thereof, on the right of way and easement
      in which to lay said pipe line, but plaintiff’s use and occupancy of said right of
      way and easement and the right of ingress and egress shall be subject to the
      following limitations:

      A.        Plaintiff shall have the right to place only one pipe line under the
                right of way and easement.
      B.        The right of way of ingress and egress shall be limited to the
                easement herein granted.
      4
          See Violet, 200 So. 2d at 433-34.
      5
          Id. at 436.

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Louisiana state court. Rose sought damages and the restoration of her land
based on (1) the defendants’ alleged negligence in maintaining the canals within
their proper boundaries, (2) their breach of the duty owed towards her servient
estate, and (3) trespass.
       After the defendants removed the case to the district court, Rose
voluntarily dismissed El Paso as a defendant, and the court denied Rose’s
Motion for Class Certification. The remaining defendants, TGP and Popich, filed
a “Motion to Dismiss, and Alternatively, For Summary Judgment” based on
prescription. Before the district court ruled on that motion, Rose voluntarily
dismissed Popich from the suit, leaving only TGP.
       Following a hearing, the district court granted TGP’s motion and
dismissed the suit without written reasons. In dismissing the action, the district
judge stated: “I do find that there was not a duty to maintain by the defendant
in this case. As a result, there is no continuing tort at issue, and this case has
prescribed.” Rose timely filed a notice of appeal.
                                      II. ANALYSIS
A.     Standard of Review
       We review the dismissal of Rose’s claims de novo, applying the same
standard as the district court.6
B.     Duty to Maintain
       Rose argues that TGP had a duty to maintain the canal it constructed
pursuant to the 1964 expropriation judgment, and that TGP’s failure to do so has
caused the canal to grow wider, diminishing her property by erosion. Rose
further argues that TGP’s duty is continuing, and, consequently, the relevant
prescriptive period has been tolled. The district court rejected these arguments

       6
         Copeland v. Wasserstein, Perella & Co., Inc., 278 F.3d 472, 477 (5th Cir. 2002) (noting
that a district court’s grants of both a motion to dismiss and a motion for summary judgment
are reviewed de novo).


                                               4
                                         No. 06-31119

when it dismissed Rose’s claims; however, in doing so, the court failed to account
for the fact that the 1964 expropriation judgment created a servitude in favor of
TGP, thereby implicating Louisiana’s suppletive law on servitudes and
potentially imposing various duties on TGP as the holder of a dominant estate.
       The 1964 expropriation judgment granted TGP a “right of way and
easement” over Rose’s property. TGP contends that, because the “right of way
and easement” was created in an expropriation proceeding, rather than by
means of a conventional agreement, no servitude exists and Louisiana’s
suppletive law on servitudes is not implicated. Having reviewed the applicable
Louisiana law and jurisprudence, we conclude that the 1964 expropriation
judgment did, in fact, create a servitude.
       When TGP proceeded to expropriate the “right of way and easement” in
question, it did so under the authority of Louisiana Revised Statutes Title 19.7
Section 19:1 defines the “property” that is subject to expropriation as “immovable
property, including servitudes . . . .”8 As evident by Title 19, as well as by a
substantial body of Louisiana jurisprudence, it is well established in Louisiana
that one of the ways that a servitude may be created is by expropriation of
property for public utility.9
       To hold for TGP that the 1964 expropriation judgment did not create a
servitude, we would have to conclude that in ordering the “right of way and
easement,” the state court was granting something other than a servitude in the
immovable property at issue. TGP argues that such is the case, noting that the
expropriation judgment identified the interest created as a “right of way and


       7
           See LA. REV. STAT. ANN. § 19:1 et al.
       8
           LA. REV. STAT. ANN. § 19:1.
       9
       See A.N. YIANNOPOULOS, 4 LA. CIV. LAW TREATISE § 147, at 411 (3d ed. 2004). See also
Acadian Gas Pipeline Sys. v. Bourgeois, 890 So. 2d 634 (La. App. 5 Cir. 2004); Tusson v. Hero
Land Co., 446 So. 2d 346 (La. App. 4 Cir. 1984).

                                                   5
                                         No. 06-31119

easement,” rather than a “servitude.” It is widely recognized, however, that
myriad common law terms have seeped interstitially into Louisiana judicial
opinions and even into some specialized statutes,10 “easement” and “right of way”
being just two. This phenomenon does not, however, work any substantive
change in the law; rather, “easement” and “right of way” have simply become
interchangeable synonyms for “servitude.” Moreover, Louisiana law has long
recognized that the grant of a “right of way” gives rise to a predial servitude,11
and it is “uniformly accepted in the law of Louisiana that the common law word
‘easement’ is the same as the Louisiana ‘servitude.’”12
       We refuse to construe the court’s use of the phrase “right of way and
easement” in the 1964 expropriation judgment here at issue as a conscious effort
to create some interest other than a servitude. We are persuaded that such word
usage is nothing more than another example of the verbal alluvium from our
sister states that has become engrafted onto our legal lexicon. Despite the fact
that the term “easement” may not be found anywhere in the Civil Code, it
continues to be used by courts and practitioners alike when what they really
mean is servitude. And, we are convinced that its inclusion in TGP’s 1964
judgment is just another example of such imprecision.
       Our conclusion that the 1964 expropriation judgment created a servitude
is bolstered by the fact that the interest granted to TGP meets the definition of



       10
         See, e.g., LA. REV. STAT. ANN. § 30:78; Quibodeaux v. Andrus, 886 So. 2d 1258, 1261
(La. App. 3 Cir. 2004); Meynard v. Pickett Indus., Inc., 896 So. 2d 126, 127 (La. App. 3 Cir.
2004); Ark. La. Gas Co. v. La. Dep’t of Highways, 104 So. 2d 204, 207 (La. App. 2 Cir. 1958).
       11
          Quibodeaux, 886 So. 2d at 1261 (citing El Paso Field Serv., Inc. v. Minvielle, 867 So.
2d 120, 124 (La. App. 3 Cir. 2004), and Bidstrup v. Brignac, 631 So. 2d 637, 642 (La. App. 3
Cir. 1994)); see also Rock Island, A. & L.R. Co. v. Gournay, 17 So. 2d 8 (La. 1944) (noting that
the jurisprudence is well settled that conveyance of a right of way is generally regarded as the
granting of a servitude, rather than a transfer of title).
       12
            Quibodeaux, 886 So. 2d at 1261 (citing Ark. La. Gas, 104 So. 2d at 207, 209).

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                                           No. 06-31119

a servitude.13 Louisiana Civil Code article 646 defines a predial servitude as a
“charge on a servient estate for the benefit of a dominant estate,” and notes that
“[t]he two estates must belong to different owners.”14 Here, Rose is the servient
estate holder, as her property is burdened by the servitude, and TGP is the
dominant estate holder, as it “owns” the right to lay and use the pipeline and
enjoy the benefits from the burden imposed on the Rose property.15
       Inasmuch as (1) servitudes may be created by expropriation, (2) the 1964
judgment used common law terminology synonymous with servitudes, and (3)
the interest granted to TGP meets the legal definition of a predial servitude, we
are persuaded that the 1964 expropriation judgment created a servitude, thereby
implicating Louisiana’s suppletive law on servitudes. Just as when silence in
the writing of the parties opens a conventional obligation to provisions supplied
by law, anything not expressly covered by the provisions of a judgment that
creates a servitude will be supplied from the applicable law.
       This determination is further supported by considerations of practicality
as well. TGP only resorted to expropriation when it was unable to negotiate a

       13
            Arguably, there is some question as to whether the instant servitude should be
classified as a predial servitude or a personal servitude of right of use. Louisiana Civil Code
article 639 states that “[t]he personal servitude of right of use confers in favor of a person a
specified use of an estate less than full enjoyment.” LA. CIV. CODE ANN. art. 639. Even though
rights of way similar to that granted to TGP are frequently characterized as predial servitudes,
see, e.g., Terrebonne Parish Sch. Bd. v. Columbia Gulf Transmission Co., 290 F.3d 303 (5th Cir.
2002), perhaps the interest in question might be better classified as a personal servitude
because it confers a benefit in favor of a juridical person, TGP, rather than an immovable.
Either way, though, the interest granted to TGP meets the definition of a servitude under
Louisiana law. And, under the circumstances, any distinction is immaterial. The fact that a
servitude was created by the 1964 expropriation judgment implicates Louisiana’s suppletive
law on servitudes, and under Louisiana Civil Code article 645, “[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. CIV. CODE
ANN. art. 645.
       14
            LA. CIV. CODE ANN. art. 646.
       15
          El Paso Field Serv., Inc. v. Minvielle, 867 So. 2d 120, 124-25 (La. App. 3 Cir. 2004)
(classifying the owner of an underground gas pipeline as the dominant estate holder).

                                                7
                                        No. 06-31119

conventional servitude with Violet, Rose’s predecessor in interest. Were we to
conclude that the expropriation judgment granted TGP some innominate
interest other than a servitude — one that was not amenable to Louisiana’s
suppletive law on servitudes — then parties like TGP would have no incentive
to negotiate servitudes and likely would, instead, opt for expropriation
proceedings that might provide them with the benefits they want without
imposing the concomitant correlative responsibilities. We are convinced that the
court that ordered the so-called “right of way and easement” to TGP had no
intention of granting such a distinct interest; instead, it merely purported to
grant the same interest, viz., a servitude, that the parties had been unable to
agree on among themselves.
       Having determined that the 1964 expropriation judgment created a
servitude and in so doing subjected it to all applicable provisions of Louisiana
law, we turn to the rights and responsibilities that accompany such an
immovable. The Civil Code provides a whole host of suppletive rules that govern
the relationship of parties to a servitude to the extent that they (or, in this case,
the court) do not provide otherwise. Louisiana Civil Code article 697 states in
pertinent part that “[t]he use and extent of such servitudes are regulated by the
title by which they are created, and, in the absence of such regulation, by the
following rules.”16 Among these suppletive rules, “[i]t is well settled in Louisiana
that, under the applicable Civil Code provisions, one holding a servitude on
another’s land is bound to use that servitude in such a manner as to not
unreasonably injure the rights of the owner of the servient estate. Thus, if the
owner of the servitude uses it in a negligent, unauthorized or unreasonable
manner, the owner of the servient estate may sue for damages.”17 Stated

       16
            LA. CIV. CODE ANN. art. 697 (emphasis added).
       17
       Stephens v. Int’l Paper Co., 542 So. 2d 35, 39 (La. App. 2 Cir. 1989) (citing LA. CIV.
CODE ANN. arts. 743, 745). Louisiana Civil Code article 743 provides in relevant part that

                                              8
                                          No. 06-31119

differently, the dominant estate owner “must not ‘aggravate’ the condition of the
servient estate.”18 Moreover, the duty not to aggravate the servient estate is a
continuing one.19
          It is apparent that these suppletive rules imposed duties upon TGP, as the
holder of a dominant estate, that are potentially implicated by Rose’s claims. We
make no determination whether the judgment of expropriation disposed of any
applicable provisions or whether the parties did or did not contract out of
Louisiana’s suppletive law on servitudes, specifically, whether TGP was under
a continuing duty to prevent the widening of the canals in which its active
pipelines lay so as to prevent the erosion of Rose’s property, even if the
suppletive rules are applicable. As we noted in Columbia Gulf Transmission
when we tackled a similar issue, whether the suppletive law of Louisiana might
impose such a duty remains to be resolved, as does the question whether such
a duty might in turn render the failure to maintain the canal banks a continuing
tort.20
                                      III. CONCLUSION
          The district court failed to commence and conduct its analysis in the
proper legal framework when it failed to recognize that the 1964 expropriation
judgment created a servitude, thereby implicating Louisiana’s suppletive law on


“[r]ights that are necessary for the use of a servitude . . . are to be exercised in a way least
inconvenient for the servient estate.” LA. CIV. CODE ANN. art. 743. Louisiana Civil Code article
745 imposes upon the dominant estate holder the “obligation of causing the least possible
damage” when entering upon the servient estate and depositing materials needed to construct
or repair the works required for the use or preservation of the servitude. LA. CIV. CODE ANN.
art. 745.
          18
         Columbia Gulf Transmission, 290 F.3d at 316 (citing LA. CIV. CODE ANN. arts. 743,
745). See also A.N. YIANNOPOULOS, 4 LA. CIV. LAW TREATISE § 156, at 431 (3d ed. 2004) (citing
Dupree v. Oil, Gas & Other Minerals, 731 So. 2d 1067 (La. App. 2 Cir. 1999)).
          19
               Columbia Gulf Transmission, 290 F.3d at 316.
          20
               Id. at 325-26.

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                                 No. 06-31119

servitudes. As such, the court’s dismissal of Rose’s claims was improper. On
remand, the district court must examine the judgment that created the servitude
in question, as well as the history of the parties and their relationship to each
other. After doing so, the court can determine the rights and duties that were
created between TGP and Rose and then decide whether TGP had a duty, as the
holder of a dominant estate, to conduct preventative maintenance with respect
to, inter alia, the width of the canal. The district court should also ascertain
which, if any, of the duties that it determines to have flowed from the creation
of the servitude remain enforceable.        We remand this action for further
proceedings consistent with this opinion.
REVERSED and REMANDED.




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