Joseph Ned Henry, Jr. v. Union Pacific Railroad Company

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-694

JOSEPH NED HENRY, JR., ET AL.

VERSUS

UNION PACIFIC RAILROAD COMPANY

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. 82540, DIV. B
HONORABLE DEE A. HAWTHORNE, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Sylvia R. Cooks, Oswald A. Decuir, and Shannon J. Gremillion,
Judges.

Cooks, J., concurs in the result.

REMANDED.

William Hector Howard, III
Paul Lee Peyronnin
Baker, Donelson, Bearmann,
Caldwell & Berkowitz, PC
201 St. Charles Ave., Suite 3600
New Orleans, LA 70170
(504) 566-5200
COUNSEL FOR DEFENDANT/APPELLANT:
Union Pacific Railroad Company

John C. Guillet
Corkern, Crews & Guillet
P. O. Box 1036
Natchitoches, LA 71458-1036
(318) 354-1377
COUNSEL FOR PLAINTIFFS/APPELLEES:
Joseph Ned Henry, Jr.
John Patrick Henry
Doris K. Henry

GREMILLION, Judge.

The Union Pacific Railroad Company (UP) appeals the trial court’s grant of

summary judgment in favor of Joseph Ned Henry, Jr., John Patrick Henry, and

Doris K. Henry (the Henrys), which ordered UP to restore a railroad crossing that

facilitated access to the Henrys’ land in Natchitoches Parish.

FACTS

On May 22, 1901, Mr. M.R. Payne of Yazoo County, Mississippi, granted a

right of way to The Texas & Pacific Railway Company (T&P) over land he owned

in Natchitoches Parish. There is no dispute that Payne is the Henrys’ ancestor in

title, nor that T&P is UP’s ancestor in title. The right of way was granted in

consideration of $1.00 plus other good and valuable consideration, including:

[F]or the further consideration that said Railway Company agrees and
binds itself so to construct its line of railway as to not injure the
natural drainage of said grantor’s land, and to construct through its
tracks such artificial drains and culverts as a necessary and proper for
that purpose; and further, to provide crossings over the said railway as
points on said grantors [sic] property necessary for convenient passing
over the property, not nearer together than half a mile apart.

This private crossing was closed by UP on December 6, 2007. On July 14,

2009, the Henrys filed suit in Natchitoches Parish in which they outlined the chain

of title between themselves and Payne and prayed that UP be required, at its

expense, to restore the crossing. UP removed the matter to federal district court for

the Western District of Louisiana, Alexandria Division, asserting that the federal

court could properly exercise jurisdiction based upon complete diversity of

citizenship. The federal court remanded the matter to state court. UP then

answered the suit, and the Henrys filed a motion for summary judgment. The trial

court granted the Henrys’ summary judgment on March 3, 2012, from which UP

took this appeal.

ASSIGNMENTS OF ERROR

UP asserts the following as error:

1. The trial court erred in ordering Union Pacific to restore a non-
authorized crossing.

2. The trial court erred in its apparent belief that the plaintiffs have an
enforceable right to a crossing.

3. Summary judgment is inappropriate on the question of intent.

ANALYSIS

Courts of appeal review summary judgments de novo applying the same

analysis as the trial court. Schroeder v. Bd. of Supervisors of La. State Univ., 591

So.2d 342 (La.1991). Summary judgment is governed by La.Code Civ.P. arts. 966

and 967. Those articles require the mover to demonstrate an absence of genuine

issues of material fact based upon the pleadings, depositions, answers to

interrogatories, admissions on file, and affidavits, if the mover is entitled to

judgment as a matter of law.

The Henrys argued in the motion that state contract law is not pre-empted by

federal law governing railroads. Franks Inv. Co. LLC v. Union Pacific R.R. Co.,

593 F.3d 404 (5th Cir. 2010). The Franks case involved a very similar factual

scenario as the present matter. Further, the Henrys argued that UP was prohibited

under La.R.S. 48:394 from closing the crossing without obtaining permission from

the Louisiana Public Service Commission after a public hearing.

UP countered that the constitutionality of Section 394 was pending on

appeal before the United States Fifth Circuit Court of Appeals. See Union Pacific

R.R. Co. v. La. Public Serv. Comm’n, 662 F.3d 336 (5th Cir. 2011). It further

argued that Section 394 was enacted by Act 530 of the 2008 Regular Session after

the subject crossing had been closed; hence, the statute could not apply to the

closing. Further, UP argued that the deed between T&P and Payne conveyed to
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T&P “fee-simple” title and created a personal servitude to Payne and not a predial

servitude; thus, UP owed no obligation to the Henrys to maintain the crossing

because personal servitudes do not pass with title. Lastly, UP attached to its

opposition the affidavit of Mr. Paul Rathgeber, its Manager of Industry and Public

Projects, who attested that circumstances often necessitate the closing of a private

crossing (although he identified none that applied to the present case), that private

crossings represent a considerable maintenance expense, and that another crossing

exists that is less than a half mile from the one that was closed.

The Henrys filed a reply brief that argued that the Payne/T&P deed created a

personal right of use in favor of T&P. Because UP continued to maintain the

crossing, it evidenced its need to continue operation of the right of way across the

Henry property, the exchange for which was maintaining the crossing. In support,

the Henrys attached the affidavit of Mr. Joseph Ned Henry, Jr., who attested that

the crossing that was left by UP was constructed in 1948.

The trial court ruled that the terms of the deed required UP to maintain the

original crossing. It ordered UP to reinstall the crossing at its expense.

On appeal, UP made no new argument. If the deed conveyed a personal

servitude, it did not inure to the benefits of Payne’s ancestors in title. The deed

could not have created a predial servitude, because predial servitudes cannot create

affirmative obligations, such as maintaining the crossing. See La.Civ.Code art.

651.

The question of whether a deed involving a railroad “right of way” conveys

ownership or a servitude represents no novel issue to Louisiana jurisprudence. It is

not required for purposes of this matter that we recount the history of railway

construction in Louisiana; but a few seminal cases do shed light on the appropriate

analysis of the facts before the court.
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In Arkansas Improvement Co. v. Kansas City Southern Railway Co., 189 La.

921, 181 So. 445 (1938), the plaintiff instituted a petitory action against the

railroad and other defendants to determine whether a parcel of Caddo Parish land

was owned by the company, which claimed that it had conveyed a mere servitude

to the railroad’s ancestor in title. The 1905 deed in question provided in pertinent

part:

Know all men by these presents, That the Arkansas Improvement
Company, a corporation duly organized under the laws of the State of
Missouri, and domiciled at Many, in the Parish of Sabine, Louisiana,
by E. O. Haight, President, he being thereto duly authorized, for and
in consideration of the sum of One Dollar (1.00) to it in hand paid by
the Kansas City, Shreveport and Gulf Railway Company, a
corporation duly organized under the laws of the State of Louisiana,
and domiciled in the City of Shreveport, Louisiana, has Remised,
Released, Quit-claimed and Conveyed, and by these presents does
Remise, Release, Quitclaim and Convey unto the said Kansas City,
Shreveport and Gulf Railway Company, its successors and assigns,
for additional right-of-way, all that lot or parcel of land situated in the
Parish of Caddo…

To have and to hold, the above described premises, together with all
and singular, the rights and appurtenances thereto in anywise
belonging, to the Kansas City, Shreveport & Gulf Railway Company,
its successors and assigns, for railroad purposes, forever.

Id.at 446-47.

The supreme court noted that the language bore “all the earmarks of an

outright sale of the land in fee.” Id. However, the supreme court also felt that the

provision was ambiguous, and considered, as the trial court had, parole evidence

showing that Arkansas Improvement Company had not paid property taxes on the

land since it executed the 1905 deed, nor had it exercised any other acts of

possession over the property. The language of the deed and the parole evidence

demonstrated that the intent of the parties was to convey ownership rather than a

servitude. In doing so, the court recognized the principle enunciated in Johnson v.

Valdosta, Moultrie & Western Railway Co., 169 Ga. 559, 150 S.E. 845 (1929), that

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use of the term “right of way” in a railroad deed is more descriptive of the use of

the land than definitive of the nature of the rights conveyed. Rather, the language

of the instrument as a whole determines the nature of the conveyance.

The Louisiana Supreme Court in Texas & Pacific Railway Co. v. Ellerbe,

199 La. 489, 492, 6 So.2d 556, 557 (1942), stated, “The jurisprudence is well

settled that the conveyance of a right of way is to be regarded as a mere servitude

and not as a transfer of a fee-simple title unless the deed itself evidences that the

parties intended otherwise.”

In Rock Island, Arkansas & Louisiana Railroad Co. v. Gournay, 205 La.

125, 17 So.2d 8 (1943), the deed provided that the defendants’ ancestor in title

conveyed, sold, and delivered to the railroad, its successors, and assigns, in

perpetuity, a 100-foot-wide strip of land in St. Landry Parish. It further allowed

the railroad the right to make cuts, embankments, and other earth works within the

100-foot area for the construction of the railroad. The deed also recited that the

consideration received was in full compensation for the property taken and damage

done or to be done to the property during the course of construction. The court

reasoned that if the deed intended to convey ownership of the land in question, the

provision regarding compensation would be rendered superfluous, as the railroad

would not owe itself for damage done to property it owned. Therefore, the court

reasoned that the deed was intended to establish a servitude in favor of the railroad.

The language in the present instrument provides that Payne sold, conveyed,

and set over a right of way. The act further provided, “To have and hold the said

property or right of way unto the said The Texas and Pacific Railway Company, its

successors and assigns forever.” Finally, the act provided:

It is understood and agreed that if the said grantee, The Texas
and Pacific Railway Company, or its successors and assigns, shall not
construct its said line through the said property within two years from
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the date hereof, then the said grantor shall have the right to dissolve
and set aside this conveyance by due proceedings at law.

The act clearly conveys a right of way, and provides that if the right of way was

not exercised within two years, Payne could have dissolved the conveyance.

Without clearer intention to convey ownership, we are constrained to hold that the

1901 act did not convey ownership to T&P.

UP argues that if the instrument created a predial servitude in Payne’s favor,

it cannot be compelled to build or maintain the crossing. It bases this argument on

Louisiana Civil Code article 651. This argument, however, is based on a partial

reading of article 651, which provides that “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.” However, the article goes on to

state, “He may be required by convention or by law to keep his estate in suitable

condition for the exercise of the servitude due to the dominant estate.” Id.

We note that railroad grade crossing and improvement is largely regulated

by the state. Among the statutes governing elimination of railroad grade crossings

is La.R.S. 48:390. Act 718 of the 2008 Regular Session amended Section 390 to

add subsection (G). Subsection (G)(1) provides:

Notwithstanding the provisions of this Section, R.S. 48:390.1, or any
other provision of law or rule to the contrary, the closing of a railroad
grade crossing by a railroad company shall not be considered
interruption for purposes of acquisitive prescription, and any crossing
closed by a railroad since January 1, 2006, shall be re-opened upon
the attainment of thirty years peaceful and otherwise uninterrupted use
or possession of servitude of use or passage across the railroad grade
crossing with or without just title.

The act expressly applies retroactively. See 2008 La. Acts No. 718, § 2.

Therefore, notwithstanding that the subject crossing was closed before Act 718

became effective, it would seem to nonetheless require UP to re-open the subject

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crossing, over which the owners of the Henry land had exercised passage since

1901, well over thirty years.

This issue was not raised at the court below. In supplemental briefs, UP

argues that Section 390 unconstitutionally impairs its contractual obligation. This

section represents a requirement by law to maintain the crossing “in suitable

condition for the exercise of the servitude due to the dominant estate” for purposes

of Louisiana Civil Code article 651. Therefore, we remand the matter to the trial

court to allow UP to present its constitutional challenge to the provision and give

proper notice pursuant to La.Code Civ.P. Art. 1880.

REMANDED.

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