By Katie Caswell
In Rose v. Tennessee Gas Pipeline Co., plaintiff, owner of an undivided interest in property across which Defendant Tennessee Gas Pipeline Co. (“TGP”) held a pipeline “easement” or “right of way” obtained in an expropriation proceeding, appealed from the district court’s dismissal of her claims against TGP as time barred by prescription. 2007 WL 4111191 (5th Cir. Nov. 20, 2007). The United States District Court for the Eastern District of Louisiana concluded that TGP did not owe plaintiff a duty to maintain the canal it constructed pursuant to the 1964 expropriation judgment. As a result, the district court held that no continuing tort was at issue and the case therefore prescribed. On appeal, plaintiff argued that TGP did have a continuing duty to maintain and thus the prescriptive period was interrupted. TGP asserted that because it was granted a “right of way and easement” pursuant to the expropriation proceedings rather than by means of a conventional agreement, no servitude existed and thus Louisiana’s suppletive law on servitudes was not implicated. The 5th Circuit disagreed and concluded that the expropriation judgment did in fact create a servitude, implicating Louisiana’s suppletive rules; specifically, that the dominant estate owner “must not ‘aggravate’ the condition of the servient estate.” In reaching this conclusion, the 5th Circuit found that the use of the common law terms “right of way” and “easement” in the expropriation judgment did not work any substantive change in the law because it is well-know that “myriad common law terms have seeped interstitially into Louisiana judicial opinions…” Further guiding the 5th Circuit’s opinion was the conclusion that the interest granted to TGP met the definition of a servitude. Moreover, TGP only resorted to expropriation when it was unable to negotiate a conventional servitude with the plaintiff’s predecessor-in-interest. Therefore, the 5th Circuit held that Louisiana’s suppletive rules applied and if implicated by plaintiff’s claims, such rules would impose duties upon TGP. As such, the 5th Circuit remanded the case to the district court to determine 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 conduct preventative maintenance with respect to the width of the canals in which its active pipelines lay so as to prevent the erosion on plaintiff’s property.