W. EUGENE DAVIS, Circuit Judge:
Plaintiff-Appellant Franks Investment Co., LLC ("Franks") appeals from the district court's final judgment granting the motion for summary judgment filed by Defendant-Appellee Union Pacific Railroad Co. ("Union Pacific") and dismissing Franks's claims with prejudice. For the reasons set out below, we AFFIRM.
This action is the latest in a series of legal battles between Franks and Union Pacific over whether Franks has the right to cross Union Pacific's train tracks on certain property in Caddo Parish originally owned by the Levy family at the turn of the 20th century. In 1902, the Levys sold a strip of land running through its tract to the Texas & Pacific Railway Company ("T & P"). The deed required T & P to "put in all necessary crossings" and "not to obstruct drainage." In 1913, the Levys dedicated a road across their land to Caddo Parish, and agreed to "furnish the new posts" for this land on the condition that the Parish move a fence and "put in three crossings over ditches."
In 1923, the Levys and T & P completed another transaction, the deed to which is the focal point of this case (hereinafter the "1923 deed"). This transaction involved the sale of a larger and longer strip of land to T & P, and allowed the railroad company to move its tracks southwest. The 1923 deed contains the language directly at issue in this appeal. After stating the dimensions of the land, establishing the purchase price of $3,106, and granting the
Franks now owns a portion of the Levy property adjacent to the railroad tracks. Union Pacific owns the strip of railroad property previously owned by T & P. In 2007, Union Pacific began closing the crossings. Prior to the closing of the crossings, they were apparently being used for oil and gas operations on Franks's land. Franks is asserting a right to three separate crossings. Two of these crossings are within 10 to 12 feet of the locations shown in the blueprint attached to the 1923 deed, and one is more than 1,400 feet away from the location shown. Franks asserts that the crossings were in uncontested use for "over 70 years." Franks concedes that there are other points of access to the property.
Franks previously brought a possessory action against Union Pacific seeking to restore its use of four railroad crossings over Union Pacific's track.
Franks filed this petitory action next,
Union Pacific moved to dismiss, asserting that the deed, by its plain language, did not create a predial servitude, and that any servitude that was conveyed via the deed was strictly personal to the Levys,
The district court noted that discovery did not produce any information bearing "on the legal interpretation of the 1923 deed."
According to the district court, without the drainage clause and its specific "successors and assigns" language, "[t]he general principles regarding the interpretation of servitudes suggests [sic] that the crossing clause, standing alone, would create a predial servitude."
On appeal, Franks argues that the district court erred in denying the existence of a predial servitude in the three crossings.
This court "review[s] a district court's grant of summary judgment de novo," applying the usual standards under FED. R.CIV.P. 56.
This case turns on interpretation of the 1923 deed. "A document purporting to
In 1923, as now,
To that end, we interpret words using their "general and popular use,"
"When a clause is susceptible of two interpretations, it must be understood in that in which it may have some effect, rather than in a sense which would render it nugatory."
If a court may determine the unambiguous common intent of the parties from the language of the contract under the rules set out above, the analysis ends there.
The district court concluded that the language of the 1923 deed was unambiguous and did not convey a predial servitude with respect to the three crossings; therefore, the court would not examine extrinsic evidence and would not "attempt to substitute its judgment about what the parties meant or intended."
Predial servitudes (or real servitudes) were defined in the RCC as "those which
One significant consequence of a predial servitude, as opposed to a merely personal obligation, is that a predial servitude "is binding on subsequent owners who acquire the servient estate without further mention of the restriction in the act conveying the servient estate."
In 1923, unlike now, the RCC classified servitudes as either urban servitudes (those established for the use of houses) or rural servitudes (those established for the use of land),
Under the RCC, as now, landowners could establish predial servitudes by convention, i.e., by contract.
On the other hand, if the act does not declare that the grant of a right is for the benefit of an estate but merely for the benefit of a person, the RCC provided that it might still be a predial servitude if it conveyed "a real advantage to the estate" as opposed to "personal convenience to the owner."
However:
Louisiana courts have also long recognized that parties to a contract may choose to create neither a predial servitude nor personal servitude but rather a personal obligation, i.e., an agreement that focuses on the duty of an obligor rather than a benefit either to an estate (predial servitude) or to a person (personal servitude), and which does not bind the obligor's successors-in-interest. In 1911, the Louisiana Supreme Court quoted with approval French civil law commentary to that effect:
The Louisiana Third Circuit later noted that the characterization of a clause as either a predial servitude, personal servitude, or personal obligation is a question of law determined by the ordinary principles of contract interpretation set out above:
In short, under the RCC, parties to a contract may remove all doubt by expressly declaring a predial servitude, and if they do not, the interpretation depends on the nature of the right granted or obligation required under the language of the contract. As the statutes set out above illustrate, the language of the contract must control the interpretation, and the parties would do well to make explicit their intention to create or not create a predial servitude. Case law bears out this focus on the language of the contract, both under the RCC and the current Civil Code. See, e.g., Burgas v. Stoutz, 174 La. 586, 591, 141 So. 67 (1932) (noting that language in a deed granting use of a driveway to "the purchaser, its successors and assigns" would have created a predial servitude); Buckhorn Ranch, L.L.C. v. Holt, 2008-1509 p. 2 (La.App. 3 Cir. 5/6/09), 10 So.3d 367, 369, writ denied, 2009-1263 (La.9/18/09), 17 So.3d 977 (creating a predial servitude with the phrase "these servitudes shall be predial servitudes").
Nevertheless, both the RCC and the current Civil Code create a presumption in
Even in some cases where language in an act of sale specifically names one of the parties to the act as the beneficiary of the servitude, Louisiana courts have found a predial servitude rather than a personal servitude. In McLure,
We turn now to the relevant language in the 1923 deed:
For convenience and consistency with the district court opinion, we will refer to clause [1] as the "crossings clause," and to clause [2] as the "drainage clause."
In essence, Franks argues that the crossings clause creates a predial servitude because it was established to provide a benefit to the property owned by the Levys. Therefore, Franks argues, it is presumed to be a predial servitude under the RCC provisions and case law discussed above. The district court, citing much of the case law discussed above, agreed with Franks that the cases "are persuasive that the crossings clause, standing alone, would
We agree with the district court's assessment. If the crossings clause stood alone in the 1923 deed, then Franks likely would be correct that it would be subject to the predial servitude presumption. It does not stand alone, however. It is in the same sentence as the drainage clause, and we must interpret both provisions which satisfies "both the general rules of contract construction as well as in accordance with specific rules of construction for instruments that purport to create servitudes."
The problem for Franks is that Franks is trying to establish a predial servitude by presumption because the crossings clause does not expressly create a predial servitude, but the parties to the 1923 deed showed that they knew how to establish a predial servitude expressly in the drainage clause — not just in part of the same deed but in the very same sentence. Specifically, whereas the crossings clause binds only Texas & Pacific Railway Company to maintain fences and provide crossings (which does not necessarily establish a predial servitude), the drainage clause binds not only Texas & Pacific Railway Company but "itself, its successors and assigns," which is sufficient to create an express predial servitude.
The parties knew how to create an express servitude by adding the "successors and assigns" language but added that language only to the drainage clause, limiting the obligations in the crossings clause to "Texas & Pacific Railway Company" only. As the district court reasoned:
We agree. Although Franks puts forward a number of arguments on appeal, none of them offers a convincing explanation for why the parties included the "successors and assigns" language in the drainage clause but not the crossings clause, if they intended both clauses to establish predial servitudes. Nor has Franks pointed to any material difference between the RCC provisions applicable in 1923 versus the Civil Code provisions applicable today and on which the district court relied. Indeed, as the parallel citations in this opinion show, virtually every relevant RCC article has a modern equivalent in the Civil Code, and the cases cited by the district court and herein do not depend on any of amendments for their reasoning or results.
In short, under the law applicable to the interpretation of the 1923 deed, we conclude that the contract is unambiguous. It does not establish a predial servitude with respect to Texas & Pacific Railway Company's obligation to provide three crossings across what was then its property. Rather, it is merely a personal obligation which does not bind Texas & Pacific Railway Company's successors-in-interest.
For the reasons set out above, we AFFIRM.
JAMES L. DENNIS, Circuit Judge, dissenting:
At issue in this case is whether the owners of the Levy family plantation in Caddo Parish, Louisiana, who in 1923 deeded a strip of land bisecting the plantation to the Texas and Pacific Railway Company for railroad use, reserved a predial servitude of passage across the railroad's strip of land for the benefit of the plantation. The 1923 deed, in pertinent part, provides:
The parties agree that the provision requiring the railroad to "provide three crossings across said strip" created a servitude of passage. (A servitude is a "charge laid on an estate." Art. 647.)
It should be obvious that, when the Levy family sold a strip of land to the Texas and Pacific Railway Company and included in the deed the reservation that the railroad "provide three crossings across" the purchased land at designated places, the parties intended to afford a right to use the crossings. There is no reasonable explanation why the Levy family would have reserved the right to crossings as a condition of the land sale if they would have been trespassers when stepping foot on the crossings. It is self-evident that the deed's provision of three crossings encompasses a right of passage across those crossings, and, under the Civil Code, "[t]he right of passage, or of way, is a servitude." Art. 722 (emphasis added); see also Art. 721 (stating that the right of passage is one of the "principal rural servitudes"). Thus, we must start from the premise that, unless shown otherwise, the parties intended to create what the Civil Code provides: a servitude. The question presented, as recognized and argued by the parties, is whether they intended for the servitude of passage to be predial or personal.
The deed does not say which sort of servitude was intended and, therefore, "the question whether the parties intended to create a predial servitude or another right is to be made in accordance with articles [755] through [757] of the Civil Code." 4 A.N. Yiannopoulos, Louisiana Civil Law Treatise: Predial Servitudes, § 6:28 (4th ed.). Article 755 instructs that the question turns on "whether the right granted be of real advantage to the estate, or merely of personal convenience to the owner." The next two articles elaborate. Article 756, the most critical article for our purposes, provides:
Article 757 provides that, "[i]f, on the other hand, the concession from its nature is a matter of mere personal convenience, it is considered personal, and can not be made real but by express declaration of the parties." It gives as an example "the right of walking and gathering fruits and flowers [in] a garden or park." Art. 757.
Here, there can be little doubt that the railroad crossings "assure a real advantage to an estate" (article 756) rather than provide
First, the benefit to the plantation estate is clear. Generally, plantation owners want access to their plantations, and more convenient means of access are preferred over less convenient alternatives. The railroad crossings here allow the owner of a plantation that has been divided by the railroad's strip to conveniently cross from one section of the estate to the other. Absent the crossings, a less convenient, circuitous path would be required. The crossings are a plain advantage. Moreover, without the railroad crossings, the land that has been divided by an intersecting railroad is rendered less accessible, and its value is consequently diminished. Put another way, the crossings served to increase and/or maintain the value of the Levy family's plantation. See Burgas v. Stoutz, 174 La. 586, 141 So. 67, 69 (1932) (holding that a servitude of passage was predial rather than personal because, inter alia, it had the effect of "making the property more desirable and valuable").
Second, it is clear that the benefit provided is to the estate itself rather than to an individual. See State v. Cefalu, 288 So.2d 332, 338 (La.1974) ("An examination of the grant reveals that it meets the basic requirement of predial servitudes — it is clearly of benefit to a dominant estate, namely the Cefalu tracts. The effect of the grant was to guarantee the Cefalu tracts direct access to each other. As a result it is clear that the Cefalu tracts were benefited."); Plaisance v. Gros, 378 So.2d 178, 179 (La.Ct.App.1979) (holding that the right of way contained in a 1906 deed was a predial servitude because it conferred "a real advantage to the then Dugas estate and not merely a personal convenience to the owner"). In fact, it is difficult to imagine a more plain benefit to an estate bisected by a railroad than passage over crossings affording the tracts "direct access to each other." See Cefalu, 288 So.2d at 338. In Taylor v. New Orleans Terminal Co., 126 La. 420, 52 So. 562 (1910), for example, the Louisiana Supreme Court had little difficulty concluding that a railroad's contract to provide crossings afforded a predial, not personal, servitude: "The right followed the property and was not personal to the owner. The original owner acquired the right as a servitude for the benefit of the estate and not for his own benefit." Id. at 564.
Because it is clear that the railroad crossings provide a benefit to the estate, "it is to be presumed" under article 756 that they constitute a predial servitude. Thus, the question becomes, are there sufficient indicia in the record to rebut the predial presumption and rather find, as the Union Pacific Railroad Company argues, that the parties intended a personal servitude or, as the majority concludes, that the parties intended only a personal obligation?
Case law from Louisiana courts suggests that less-than-clear indications that a servitude may be personal rather than predial do not suffice to rebut the predial presumption under article 756. For example,
Here, there is a persuasive reason to find that the parties intended for the railroad crossings to be a predial servitude rather than, as the Union Pacific Railroad Company argues, a personal one. The 1923 deed states in its opening clause:
(Emphasis added.) On one side of the 1923 transaction was the railway, and on the other side were a number of people, at least some of whom, importantly, resided outside Louisiana, in New York City and London. If the appellant was correct that the parties to this transaction intended for the railroad crossings to be a personal servitude, it would mean that the parties intended for the railroad crossings to benefit persons residing a world away. It is fantastical to presume, without evidence or expression, that persons residing in New York City and London had reserved the right of passage in Caddo Parish, Louisiana, as a matter of personal convenience similar to, e.g., the right of gathering fruits and flowers in a garden. See Art. 757. (Contrast, for example, Deshotels v. Fruge, 364 So.2d 258, 260-61 (La.Ct.App.1978), wherein the court found that a servitude was personal based on actual testimony about the beneficiary's personal reasons for desiring the servitude.) Based on the record in this case, the far more evident answer is that these persons in New York and London "acquired the right as a servitude
To reach its contrary conclusion, the majority points to that part of the 1923 deed which states that "the said Texas and Pacific Railway hereby binds itself, its successors and assigns, to furnish proper drainage out-lets across the land hereinabove conveyed." (Emphasis added.) The majority explains:
Respectfully, I disagree that the "successors and assigns" language relating to the railroad's drainage obligations rebuts the predial presumption as to the right of passage. The drainage obligations are separate and apart — distinct — from the right of passage across the railroad crossings, and the railroad's agreement to bind itself and "its successors and assigns" to furnish drainage outlets across the land conveyed to it does not in any way add to or detract from the predial servitude of passage granted for the benefit of the Levy estate. Whether it was unusual for the railroad to bind itself, "its successors and assigns," in its obligation, or why it did so, is not a material issue in this case, but a matter that could vary widely depending on the company, the landowners, the terrain, and the particular circumstances involved. Nothing in the Civil Code, other legislation, or custom prevented the landowners from obtaining both a predial right of passage in favor their estate across the railroad's estate and the railroad's obligation, binding on its "successors and assigns," to "furnish proper drainage out-lets across the land hereinabove conveyed."
The majority asks the wrong question: why did the parties "include the `successors and assigns' language in the drainage clause"? See ante, at 1047. I see no reason for the plaintiffs to be required to explicate the drainage clause's meaning. The better question is, did the parties intend to create a predial servitude of passage across the railroad crossings even though they did not include "successors and assigns" language in that provision of the deed? For the reasons explained, the law gave them no reason to think that the absence of "successors and assigns" language indicated neither a predial or personal servitude but rather a personal obligation. The right of passage "is a servitude," the Code says. Art. 722. In fact, the Code describes the right of passage as one of the "principal rural servitudes." Art. 721 (emphasis added). And the Louisiana courts have evinced no hesitation to construe rights of passage, including those over railroad crossings, to be predial servitudes. See, e.g., Taylor,
In sum, under article 756, which provides the controlling rule of law in this case, this court must presume that the railroad crossings afforded in the 1923 deed constitute a predial servitude, and I do not believe that there is a reasonable basis to find that the presumption has been rebutted. On the contrary, there are persuasive reasons to conclude that the parties indeed intended to create a predial servitude for the benefit of the Levy family plantation. Therefore, I respectfully dissent from the majority's conclusion, argued for by none of the parties, that, as a matter of law, the deed created nothing more than a purely personal right of passage for the members of the Levy family as individuals and a personal obligation on the part of the Texas and Pacific Railway Company to allow such passage, and not a predial right for the benefit of the Levy plantation estate.