C&E LAND CO.; et al., Plaintiffs,
CEO Investments Inc., Plaintiff-Appellant,
v.
AIR PRODUCTS LP, Defendant-Appellee.
No. 04-40603.
United States Court of Appeals, Fifth Circuit.
February 9, 2005.
Anthony G. Brocato, Sr. (argued), Law Offices of Anthony G. Brocato, Beaumont, TX, for Plaintiff-Appellant.
T. Christopher Trent (argued), Eileen K. Wilson, Johnson, Spalding, Doyle, West & Trent, Houston, TX, for Defendant-Appellee.
Appeal from the United States District Court for the Eastern District of Texas.
Before GARWOOD, BENAVIDES and STEWART, Circuit Judges.
PER CURIAM:
Appellant CEO Investments, Inc. ("CEO") appeals the district court's denial of its motion for summary judgment and the district court's grant of Appellee Air Products, L.P.'s ("Air Products") motion for partial summary judgment.1 After considering the record and the parties' briefs and arguments on appeal, we affirm the district court's judgment, principally for the reasons set forth in the magistrate judge's report and recommendation, which was adopted by the district court.
We agree with the district court's determination that the language of the easement in question unambiguously allows Air Products to transport hydrogen. The easement grants a pipeline right of way "for the transportation of oil, petroleum, gas, the products of each of the same, water, other liquids and gases, and mixtures of any of the foregoing...." The plain meaning of this language includes hydrogen.
Because we find that the easement unambiguously allows for the transportation of hydrogen, we do not need to address Appellant's arguments based on extrinsic evidence or the application of ejusdem generis. See Sun Oil Co. v. Madeley, 626 S.W.2d 726, 728 (Tex.1981); Nicol v. Gonzales, 127 S.W.3d 390, 395 (Tex.App. — Dallas 2004).
Finally, we find no merit in Appellant's contention that the district court erred by ordering a take nothing judgment against it. From the context of this case, it is clear that the district court's order that Appellant take nothing merely reflects its determination that Air Products owns an easement that allows it to transport hydrogen through Appellant's property. The district court's take nothing judgment against Appellant does not decide any other issues with respect to Appellant's property ownership. See Davidson v. Gelling, 153 Tex. 56, 263 S.W.2d 940, 943 (1954) (citing Campbell v. Schrock, 50 S.W.2d 788, 791 (Tex.Com.App.1932)).
For the foregoing reasons, the district court's judgment is in all things AFFIRMED.
Notes:
Air Products filed a motion for partial summary judgment because there were two other parties in the proceeding. Those two parties were later severed, and at the time the partial summary judgment was granted it fully disposed of the issues between CEO and Air Products
