Environmental Law: Expanding a Personal Servitude Requires Consent
Written by Kristin Lausten
In Louisiana, there are two types of servitudes: personal servitudes and predial servitudes. See La. C.C. art. 533–34 and 639–40. Personal servitudes confer upon a person a specified use of an estate less than full enjoyment. Consider the now infamous question of whether duck hunting rights constitute a “lease” or a “personal servitude?” See Richard v. Hall, 874 So. 2d 131 (La. Supreme Court 2004) (right to hunt is the granting of “a lease of an incorporeal thing”). Predial servitudes confer various listed rights upon a subservient estate against a dominant estate such as a right of way, use of water, etc. As developed by Louisiana courts, in general, servitudes carry forward from the first granting the following aspects:
- Includes attendant rights necessary to the enjoyment of the servitude
- Includes later rights that become necessary for the enjoyment of the servitude only if those rights do not impose a greater burden on the property
In a recent case from the First Circuit, the Court of Appeals held that a predial servitude included the right of replacement since replacement was necessary for the enjoyment of the servitude. However, the right of replacement — in this case, replacement of a pipeline — did not include the replacement of the former pipeline with a larger pipeline. See W&T Offshore, L.L.C. v. Texas Brine Corporation, Case No. 2017 CA 0574, C/W No. 2017 CA 0575 (La. App. 1st Cir. May 10, 2018).
In 1979, Texas Brine entered into a “Salt and Underground Storage Lease” that allowed it to build a pipeline on certain lands in Lafourche Parish for use in salt mining operations. The lease included a personal servitude of right of use, allowing Texas Brine to construct the pipeline. The lease was silent on issues with respect to the diameter of the pipeline and other details. In 1980, Texas Brine finished construction of a fourteen-inch diameter pipeline that was 6.7 miles long across the relevant property. The pipeline was expected to be commercially useful for 30 years.
In 2014, Texas Brine began the process of building a second replacement pipeline which was finished in November 2015. The replacement pipeline was 18 inches in diameter, approximately seven miles long, and about eight feet away from the original pipeline.
After the second pipeline was finished, the owners of the land disputed that they had consented to the second pipeline and demanded that all construction and related activities cease. Texas Brine immediately filed for declaratory judgment. The property owners answered and eventually filed counterclaims seeking injunctive relief (removal of the new pipeline and restoration of the land), trespass and for damages alleging that Texas Brine acted in bad faith. Texas Brine defended by arguing that its 1979 servitude entitled it to build a second pipeline, that it was planning to remove the original pipeline and that the new pipeline was needed to minimize the risks of environmental damage possible if a leak were to occur in the old pipeline. The trial court ruled in favor of Texas Brine.
On Appeal, the Court of Appeals affirmed in part and reversed in part. Texas Brine had a right to build a second pipeline but did not have a right to build a bigger, longer pipeline.
On the first issue, the parties basically split over the fact that the language in the 1979 servitude was silent on issues such as diameter, length, and the ability to replace the pipeline. The property owner argued that silence meant that doubt should be resolved in favor the property owner; Texas Brine took the opposite position. As noted, the trial court agreed with Texas Brine. The Court of Appeals also agreed, holding that Texas Brine’s servitude included any rights necessary to the enjoyment of the servitude. An old leaking pipeline basically destroyed the enjoyment of the servitude. As such, a new pipeline was allowable.
That being said, by conduct and silence over the years, the pipeline that was finished in 1980 was acceptable to both Texas Brine and to the property owner. While Texas Brine could build a new pipeline, it could not impose a greater burden on the dominant property estate than it had imposed in 1980. Clearly, a larger diameter pipeline placed a greater burden on the dominant property estate and, as such, the Court of Appeals held that Texas Brine committed trespass. The case was returned to the trial court for a determination of damages with respect to the trespass.
Contact an Experienced Louisiana Environmental Lawyer
If you have questions about servitudes, easements and/or enforcement issues, you should consult with an experienced Louisiana litigation lawyer.
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Kristin M. Lausten
This article is provided as an educational service for general informational purposes only. The material does not constitute legal advice or rendering of professional services.