Enterprise Te Products Pipeline Co., LLC v. Rosalyn Marie Davis Patin Avila

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-207

ENTERPRISE TE PRODUCTS PIPELINE CO., LLC

VERSUS

ROSALYN MARIE DAVIS PATIN AVILA, ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 81843
HONORABLE LORI ANN LANDRY, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion
and D. Kent Savoie, Judges.

THIBODEAUX, Chief Judge, and SAVOIE, Judge, concur in the result.

AFFIRMED AS AMENDED.

Archie Paul Joseph
Attorney at Law
P. O. Box 1283
Breaux Bridge, LA 70517
(337) 332-5287
COUNSEL FOR DEFENDANT/APPELLEE:
Donna Mallery
Cheryl M. Kornick
Liskow & Lewis
One Shell Square
701 Poydras St., Suite 5000
New Orleans, LA 70139
(504) 581-7979
COUNSEL FOR PLAINTIFF/APPELLANT:
Enterprise TE Products Pipeline Co.LLC

Marie Merline Price
In Proper Person
922 S. Theatre St.
St. Martinville, LA 70582
(337) 380-6014
COUNSEL FOR DEFENDANT/APPELLEE:
Marie Merline Price

Murphy J. Price, Jr.
In Proper Person
1084 Belle Terre Drive
St. Martinville, LA 70582
(000) 000-0000
COUNSEL FOR DEFENDANT/APPELLEE:
Murphy J. Price, Jr.

GREMILLION, Judge.

In this expropriation suit, the plaintiff/appellant, Enterprise TE Products

Pipeline Company, LLC (Enterprise), appeals the judgment of the trial court that

fixed a pipeline servitude over the estate of the defendants/appellees, Rosalyn

Avilia; Brenda Roy; Linda Johnson; Brian Jackson, on behalf of his minor children,

Beyonce Jackson, Bryson Simon, and DeWayne Jackson; Natalie Lee-Walker;

Kayla Lee; Enid Landry; Deidra Battle; Bradford Lee; Marie Merlin Price; Murphy

Price, Jr.; the unknown heirs of Verna Francois Rivers; the unknown heirs of

Dorothy Francois George Washington; Darlene Washington; and Gregory Sam.

For the reasons that follow, we affirm as amended.

FACTS AND PROCEDURAL HISTORY

Enterprise sought expropriation of a thirty-foot-wide servitude over the

appellees’ property, which was described as 161.00 acres in the Southeast Quarter

(SE/4) of Section 32, Township 9 South, Range 7 East in St. Martin Parish.

Appellees were not represented by counsel. This servitude parallels an existing

pipeline servitude already on appellees’ land. Several absentee defendants, the

unknown heirs of Verna Francois Rivers, the unknown heirs of Dorothy Francois

George Washington, Darlene Washington, and Gregory Sam, were represented by

appointed counsel. The trial court heard evidence at trial, awarded Enterprise a

servitude over the appellees’ land, and found that the total value of the servitude

awarded was $1,300.00; however, it awarded each appellee an amount in

compensation of between $150.00 and $300.00, despite their ownership interests

totaling 1.1983418%. Each of the absentee owners of the property was awarded

$150.00. Further, the trial court awarded the servitude for a term of ninety-nine

years.

Enterprise has appealed the judgment and assigns two errors:

1. In an expropriation Judgment, the Court erroneously imposed a
term on the servitude, thereby erroneously imposing a
conventional or contractual servitude rather than a legal servitude
as required by law.

2. The Court’s compensation award is contrary to the Court’s
findings in the Judgment and has no basis in the record.

ANALYSIS

Whether a trial court may award a pipeline servitude for a definite term

appears to pose a novel question in Louisiana law. We have found no cases that

address this issue.

Louisiana law grants authority to expropriate property to companies engaged

in the piping and marketing of natural gas, among other commodities. La.R.S.

19:2. The servitude awarded in such cases is properly classified a right of use,

which is a personal servitude. See La.Civ.Code art. 639.1 See also La.Civ.Code art.

645, comment (b). Right of use is governed by the rules governing usufructs and

predial servitudes. La.Civ.Code art. 645.

Predial servitudes are either natural, legal, or conventional in nature.

La.Civ.Code art. 654. Natural servitudes are those that “arise from the natural

situation of the estates[.]” Id. “Legal servitudes are limitations on ownership

established by law for the benefit of the general public or for the benefit of

particular persons.” La.Civ.Code art. 659. Conventional servitudes are established

by contract, prescription, or by destination. La.Civ.Code art. 654. Examples of

natural servitudes are servitudes of natural drainage and those encumbering estates

through which water runs. See La.Civ.Code arts 655 et seq. By process of

1
“The personal servitude of right of use confers in favor of a person a specified use of an
estate less than full enjoyment.”

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elimination, it becomes clear that this pipeline servitude is neither a natural

servitude nor a conventional servitude; thus, it is a legal servitude, as it was

established by operation of law.

Legal predial servitudes are extinguished only by certain acts or events, such

as the destruction of the dominant or servient estate, if the things necessary for its

use have undergone such a change that the servitude can no longer be used, if the

servitude is not used for ten years, or when the owner of one estate acquires the

other. See La.Civ.Code arts. 751, 753, and 765. These articles indicate that a right

of use such as a pipeline servitude is a permanent servitude.

We also note that, while no cases address the issue before us, there are a

plethora of cases that award “permanent” servitudes; we found none that award a

servitude limited by term. See, e.g., Louisiana Resources Co. v. Greene, 406 So.2d

1360 (La.App. 3 Cir.1981), writ denied, 412 So.2d 84 (1982); Exxon Pipeline Co.

v. LeBlanc, 99-1437 (La.App. 1 Cir. 6/23/00), 763 So.2d 128, writ denied, 00-2556

(La. 11/27/00), 775 So.2d 448; ExxonMobil Pipeline Co. v. Union Pac. R. Co., 09-

1629 (La. 3/16/10), 35 So.3d 192. We conclude, therefore, that the trial court erred

in fixing a term to the servitude.

We next turn our attention to Enterprise’s contention that the compensation

award was in error. The trial court’s factual findings in an expropriation

proceeding are not disturbed except when manifestly erroneous. State, through

Dep’t of Transp. and Dev. v. Wahlder, 94-761 (La.App. 3 Cir. 12/7/94), 647 So.2d

481. Louisiana Revised Statutes 19:9 fixes the compensation to be paid by an

expropriating authority:

A. In determining the value of the property to be expropriated,
and any damages caused to the defendant by the expropriation, the
basis of compensation shall be the value which the property possessed

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before the contemplated improvement was proposed, without
deducting therefrom any general or specific benefits derived by the
owner from the contemplated improvement or work.

B. The defendant shall be compensated to the full extent of his
loss. The court shall include in its consideration the difference
between the rate of interest of any existing mortgage on an owner-
occupied residence and the prevailing rate of interest required to
obtain a mortgage on another owner-occupied residence of equal
value.

The statute allows recovery for not only the value of the expropriated property, but

also for damages caused by the expropriation. The basis for that compensation is

the value the property possessed before the taking, without deducting the general

or specific benefits from the proposed improvements or work.

In establishing the value of the servitude, Enterprise offered the expert

testimony of Mr. Michael W. Truax, Jr. Mr. Truax is a Certified Real Estate

Appraiser who viewed but did not enter the property. He also examined aerial

photographs of the property. Mr. Truax determined that the highest and best use of

the property was “general speculation,” perhaps timber production, and

recreational uses such as hunting and trapping. He then identified comparable

sales in the area, which ranged from between $1,009.00 per acre to $2,435.00 per

acre, with a median of $1,406.00 to $1,500.00 per acre. He opined from those

figures that the value of the 160.00 acres was $1,200.00 per acre. The permanent

servitude is situated upon .93 acres. Mr. Truax opined that the value of the

servitude was ninety-five percent of the value of the .93 acres, or $1,060.00. He

opined that Enterprise needed a temporary servitude fifty feet wide, which would

last only a year, which he valued at another $250.00, for a total taking of

$1,300.00.2

2
The judgment makes no reference to this temporary servitude.

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Nonetheless, the trial court was impressed by the impact that a taking such

as this would have upon the ancestors of an African-American landowner who

acquired the property at a time when ownership by a person of color was rare.

Although the trial court did not state explicitly in its reasons that the compensation

awarded the appellees was based upon this consideration, such is implicit in the

ruling.

Louisiana Civil Code Article 9 states, “When a law is clear and

unambiguous and its application does not lead to absurd consequences, the law

shall be applied as written and no further interpretation may be made in search of

the intent of the legislature.” Louisiana Revised Statutes 19:9 allows

compensation for any damages caused by the expropriation. “In an expropriation

proceeding, a trial judge’s factual determinations as to value of property and

entitlement to any other types of damages will not be disturbed on review in the

absence of manifest error.” W. Jefferson Levee Dist. v. Coast Quality Const.

Corp., 640 So.2d 1258, 1277 (La.1994).

The manifest error standard requires that the appellate court apply a two-part

test to reverse a trial court’s findings:

1) The appellate court must find from the record that a reasonable
factual basis does not exist for the finding of the trial court, and

2) the appellate court must further determine that the record
establishes that the finding is clearly wrong (manifestly erroneous).

Stobart v. State through Dep't of Transp. & Dev., 617 So. 2d 880, 882 (La.1993).

The Appellees’ arguments and testimonies all surrounded the fundamental

unfairness of the expropriation process itself. They simply do not like it that the

law allows a servitude to be expropriated. That frustration is almost certainly

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common to every defendant in an expropriation proceeding, and is not

contemplated as the type of damages a trial court may award in such a proceeding.

See Louisiana Resources Co. v. Noel, 499 So.2d 1016 (La.App. 3 Cir.1986). We

are forced to conclude that the award to the Appellees is manifestly erroneous, and

amend the judgment to award compensation as follows:

DEFENDANT OWNERSHIP COMPENSATION

Natalie Lee-Walker 0.02534 percent $0.33

Marie Merlin Price 0.402036 percent $5.23

Murphy Price, Jr. 0.402036 percent $5.23

Rosalyn Avila 0.1020408 percent $1.33

Brenda Roy 0.03924 percent $0.51

Linda Johnson 0.05827 percent $0.76

Brian Jackson 0.067854 percent $0.88

Kayla Lee 0.025373 percent $0.33

Enid Landry 0.025373 percent $0.33

Deidra Batte 0.025373 percent $0.33

Bradford Lee 0.025373 percent $0.33

CONCLUSION

Pipeline servitudes are subject to the rules that govern predial servitudes.

Those rules mandate that as a legal servitude, a pipeline servitude acquired through

expropriation is not subject to a term. Accordingly, the trial court erred as a matter

of law when it fixed a ninety-nine-year term to the servitude acquired by Enterprise.

While La.R.S. 19:9 allows the recovery of damages as a consequence of the

expropriation, those damages must be proven in an expropriation as in any other

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proceeding. Here, the Appellees failed to prove their entitlement to damages. All

costs of this appeal are taxed to plaintiff/appellant, Enterprise TE Products Pipeline

Company, LLC.

AFFIRMED AS AMENDED.

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