ExxonMobil Pipeline Company v. Burns et al

Filing 25

FINDING OF FACTS AND CONCLUSION OF LAW granting 16 Motion for Preliminary Injunction. A PRELIMINARY INJUNCTION IS HEREBY ENTERED authorizing ExxonMobil to enter Defendants' property via their driveway and to excavate and repair its 16 EMPCo No. 1 Crude Oil Pipeline by using the Property outside the Servitude as necessary to repair the anomaly and restore lateral support and depth of cover to 36 inches, including draining the pond, restoring the 10 foot buffer zone, and using the Property to the extent necessary to perform the work. Signed by Judge John W. deGravelles on 1/26/2016. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
EXXONMOBIL PIPELINE COMPANY
CIVIL ACTION
v.
NO. 15-824-JWD-EWD
CHAD V. LANDRY, ET AL.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Pursuant to Federal Rule of Civil Procedure 52(a), the Court enters these Findings of Fact
and Conclusions of Law relative to Plaintiff ExxonMobil Pipeline Company’s (“ExxonMobil”)
Motion in Support of Preliminary Injunction. (Doc. 16.) If any finding is in truth a conclusion of
law, or if any conclusion stated is in truth a finding of fact, it shall be deemed so. For the
following reasons, the Court grants ExxonMobil’s motion.
FINDINGS OF FACT
1. Defendants Chad V. Landry and Jeanne Burns are the owners of that certain property
identified and depicted on Plaintiff’s Exhibit 6, titled Subdivision of Tract A-1 for
Iberville Real Properties, LLC. (“Property”).
2. Defendants, through their predecessors-in-interest, granted a 30 foot wide pipeline
servitude or right-of-way (“Servitude”) across the Property in favor of ExxonMobil,
through its predecessor-in-interest, on April 7, 1943 in a conveyance titled Right of Way
Agreement (see Plaintiff’s Exhibit 8), and subsequently amended the Servitude through
an April 23, 1953 Agreement, a July 29, 1966 Agreement, and a March 17, 1981
Amended Right of Way Agreement. (See Plaintiff’s Exhibits 9-11). Each document is
signed (see id.), and Defendants do not dispute that these documents were executed by
their predecessors-in-interest.

3. At all relevant times to these proceedings, ExxonMobil operated 3 pipelines, identified as
a 16” EMPCo No. 1 Crude Oil Pipeline, a 16” EMPCo No. 2 Crude Oil Pipeline, and a 8”
EMPCo Ethylene Pipeline, within the Servitude as depicted on the survey plat marked as
Plaintiff’s Exhibit 1 prepared by Ernie Gammon of Hydro Consultants, Inc., whom the
Court qualified as an expert in the field of surveying and in the use of aerial photography.
No other ExxonMobil pipelines were identified as a result of Hydro Consultants, Inc.’s
surveying or otherwise.
4. Gammon based the surveying on, among other things, survey work done on the property
on September 17, 2015; the above right-of-way agreements, including Exhibit A to the
March 17, 1981 Amended Right of Way Agreement; aerial photography; and GPS
equipment. Through Gammon, ExxonMobil established the accuracy of the survey plat
marked as Plaintiff’s Exhibit 1
5. In 2009, Defendant Chad Landry contacted the Louisiana One Call System prior to
constructing the pond on the Property. Mitchell Bryce, an ExxonMobil employee,
answered the One Call alert and personally visited the Property and discussed the planned
pond with Chad Landry. Bryce instructed Landry to maintain a 10 foot distance between
the edge of the proposed pond and the pipeline nearest the proposed pond, the 16”
ExxonMobil No. 1 Crude Oil Pipeline, for safety purposes. Landry agreed to do so.
Bryce marked the location of the 10 foot distance on the Property before Landry began
excavating the pond. (See Plaintiff’s Exhibit 1-A). Bryce remained at the Property,
observed Landry using an excavator to dig the side of the pond nearest the 16” EMPCo
No. 1 Crude Oil Pipeline, and confirmed that the 10 foot zone had been maintained when

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Landry completed digging the western bank of the pond, i.e., the bank nearest the 16”
EMPCo No. 1 Crude Oil Pipeline.1
6. As part of ExxonMobil’s integrity assessment of the 16” EMPCo No. 1 Crude Oil
Pipeline, ExxonMobil ran a “pig” device to identify any anomalies in the 16” EMPCo
No. 1 Crude Oil Pipeline. Based on data from this operation, ExxonMobil detected an
anomaly identified as a “crack feature” on the 16” EMPCo No. 1 Crude Oil Pipeline
located on the Property. ExxonMobil was required to repair the anomaly within 180 days
of February 2, 2015. (See Plaintiff’s Exhibits 1 and 17).
7. When ExxonMobil began planning for the work to address the anomaly, ExxonMobil
discovered that the pond had expanded into the buffer zone. A dispute arose between
Defendants and ExxonMobil over the location of the pond and right-of-way and
ExxonMobil retained Hydro Consultants, Inc. to survey the location of the Servitude,
pond and driveway on the Property. Hydro Consultants, Inc. performed the survey and
prepared the plat introduced as Plaintiff Exhibit 1 showing the results of the survey. The
survey establishes that Defendants allowed their pond to expand into the 10 foot safety
zone since its construction in 2009, the pond encroaches on ExxonMobil’s Servitude, the
pond partially covers the 16” EMPCo No. 1 Crude Oil Pipeline, and the crack feature is
located beneath the pond. (See Plaintiff’s Exhibits 1 and 12-14)
8. ExxonMobil cannot perform the required work on the anomaly due to the fact that the
pond encroaches on the Servitude and the 10 foot safety zone has been eliminated at the
repair area by the expansion of the pond.

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Landry claims that an employee of a third party contractor did the digging and that he did none. It is not necessary
for the Court to resolve this factual dispute for purposes of this motion.

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9. The expansion of the pond has reduced the depth of cover over the 16” EMPCo No. 1
Crude Oil Pipeline to less than 36 inches and removed lateral support for the 16” EMPCo
No. 1 Crude Oil Pipeline, creating a potential environmental hazard to the public and the
Defendants. (See Plaintiff’s Exhibit 1).
10. ExxonMobil has notified the Defendants of the encroachment and requested that the pond
be drained or removed to allow the anomaly to be repaired. Defendants have denied these
requests.
11. ExxonMobil has also notified Defendants that it will access the repair location by
crossing their driveway in the Servitude. Defendants have repeatedly objected to the
crossing of the driveway. (See Plaintiff’s Exhibit 1). However, Defendants’ counsel
stipulated at trial that the Defendants now do not object to ExxonMobil using the
driveway to access the servitude.
12. ExxonMobil is unable to repair the anomaly because of Defendants’ refusal to drain the
pond or restore the safety zone, refusal to remove the portion of the pond now located on
the Servitude, and refusal to replace lateral support to the pipelines caused by the pond’s
encroachment. Defendants’ actions have caused an unjustified risk to the Defendants and
public at large. Defendants’ interference with the repair work on the anomaly has caused
unreasonable and unjustified delay in the repair of the anomaly in the 16” EMPCo No. 1
Crude Oil Pipeline, and subjected the line to reduced pressure requirements, unjustified
environmental risks and a potential shut down.
13. The cost of making the repairs exceeds $100,000.00.

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CONCLUSIONS OF LAW
A. Jurisdiction
1. Jurisdiction is proper pursuant to 28 U.S.C. § 1332. First, the parties are completely
diverse. ExxonMobil is domiciled in Delaware and its principal place of business is in
Texas. LA. SEC’Y OF STATE, EXXONMOBIL PIPELINE CO., available at
https://coraweb.sos.la.gov/CommercialSearch/CommercialSearchDetails.aspx?CharterID
=66781_DS93 .2 Defendants appear domiciled in Louisiana, as they are residing on the
Property. Thus, there is complete diversity. Second, considering the cost of the repair
and the potential environmental damage, the amount in controversy exceeds the sum of
$75,000, exclusive of interest and costs. Accordingly, jurisdiction is proper.
B. Standard for preliminary injunction
1. As one district court in this circuit has explained:
The Fifth Circuit has held that a mandatory injunction is appropriate
where the currently existing status quo is causing a party to suffer
irreparable injury. Canal Authority of the State of Florida v. Callaway,
489 F.2d 567, 576 (5th Cir.1974). Such mandatory preliminary relief,
which goes well beyond simply maintaining the status quo pendente lite, is
particularly disfavored, and should not be granted unless the facts and law
clearly favor the moving party. Martinez v. Mathews, 544 F.2d 1233, 1243
(5th Cir.1976).
. . . The prerequisites for a preliminary injunction are: (1) the substantial
likelihood that the moving party will prevail on the merits; (2) a
substantial threat that the moving party will suffer irreparable injury if the
injunction is not granted; (3) the threatened injury outweighs the
threatened harm the injunction may do to the nonmovant; and (4) the
granting of the preliminary injunction will not disserve the public interest.
Libertarian Party of Texas v. Fainter, 741 F.2d 728, 729 (5th Cir.1984);
Canal Authority, 489 F.2d at 575–77 (applying the factors to a request for
a mandatory injunction). Preliminary injunctive relief is not granted unless
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The Court can take judicial notice of information on official government websites. See Planned Parenthood Gulf
Coast, Inc. v. Kliebert, --- F. Supp.3d ----, No. 15-565, 2015 WL 6551836, at *29 at 34 (M.D. La. Oct. 29, 2015)
(citing Denius v. Dunlap, 330 F.3d 919, 927-27 (7th Cir. 2003)).

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the movant clearly carries the onerous burden of persuasion as to all of the
elements. United States v. Jefferson County, 720 F.2d 1511, 1519 (5th
Cir.1983).
Davis v. Chairman, Texas Bd. of Criminal Justice, No. 6:10CV646, 2011 WL 831417, at
*1-2 (E.D. Tex. Feb. 10, 2011) report and recommendation adopted sub nom. Davis v.
Chairman of the Texas Bd. of Corr., No. 6:10CV646, 2011 WL 830668 (E.D. Tex. Mar.
2, 2011)
C. Substantial likelihood of success on the merits
1. Exxon has met its burden
2. The parties are bound by the servitude agreements. See Franks Inv. Co. L.L.C. v. Union
Pac. R.R. Co., 772 F.3d 1037, 1043 (5th Cir. 2014).
3. Defendants are the servient estate holders and ExxonMobil is the dominant estate holder
under the servitude agreements providing for the 30 foot wide Servitude. Rose v. Tenn.
Gas Pipeline Co., 508 F.3d 773, 777 (5th Cir. 2007); see also La. Civ. Code art. 646 cmt.
d (“In the civilian literature, the estate burdened with a predial servitude is designated as
‘servient’; the estate in whose favor (or in whose owner’s favor) the servitude is
established is designated as ‘dominant’.”).
4. “The owner of the dominant estate has the right to make at his expense all the works that
are necessary for the use and preservation of the servitude.” La. Civ. Code art. 744.
5. “The owner of the dominant estate has the right to enter with his workmen and equipment
into the part of the servient estate that is needed for the construction or repair of works
required for the use and preservation of the servitude. He may deposit materials to be
used for the works and the debris that may result, under the obligation of causing the least
possible damage and of removing them as soon as possible.” La. Civ. Code art. 745.
6. A dominant estate holder may perform work on the servient estate which is not located
within the servitude area when necessary for the use and preservation of the servitude.
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See Palace Properties, L.L.C. v. Sizeler Hammond Square Ltd. P'ship, 2001-2812 (La.
App. 1 Cir. 12/30/02), 839 So. 2d 82, 101-02, writ denied, 2003-0306 (La. 4/4/03), 840
So. 2d 1219.
7. If the owner of a servient estate allows conditions to deteriorate to such an extent that the
owner of the dominant estate’s water line becomes uncovered and later breaks, the
owners of the dominant estate have a right to enter the property and make repairs at their
expense. See Comby v. White, 98-1437 (La. App. 3 Cir. 3/3/99), 737 So.2d 94, 97 (citing
La. Civ. Code arts. 744 and 745).
8. ExxonMobil has established a substantial likelihood of success on the merits. First, by
clearly establishing the location of the anomaly, its significance, the potential for
significant environmental damage, and the expiration of federal deadlines to have the
anomaly repaired, ExxonMobil has shown that it is necessary for the use and preservation
of the pipeline servitude for ExxonMobil to enter Defendants’ property and to excavate
and repair its 16” EMPCo No. 1 Crude Oil Pipeline by using the Property outside of the
Servitude necessary to repair the anomaly and restore lateral support and depth of cover
to 36 inches, including draining the pond, restoring the 10 foot buffer zone, and using the
Property to the extent necessary to perform the work. Second, ExxonMobil has
established that Defendants have interfered with this ExxonMobil’s rights under La. Civ.
Code arts. 744 and 745 by refusing to allow ExxonMobil to enter onto the servient estate
and make the repairs necessary for the use and preservation of the pipeline servitude.
9. Accordingly, pursuant to Louisiana Civil Code articles 744 and 745, ExxonMobil is
entitled to a preliminary injunction authorizing ExxonMobil to enter Defendants’
property (via the driveway, as Defendants stipulated) and to excavate and repair its 16”

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EMPCo No. 1 Crude Oil Pipeline by using the Property outside the Servitude as
necessary to repair the anomaly and restore lateral support and depth of cover to 36
inches, including draining the pond, restoring the 10 foot buffer zone, and using the
Property to the extent necessary to perform the work.
2. Scope of the preliminary injunction
10. As stated above, under Civil Code article 745, ExxonMobil is “under the obligation of
causing the least possible damage and of removing [the workmen and equipment] as soon
as possible.”
11. Accordingly, the use of Defendants’ land outside the servitude area should be kept to the
minimum reasonably necessary to accomplish the work in a safe and efficient manner
and with a minimum disturbance to the Defendants’ use of his property
12. “If the owner of the dominant estate exceeds or abuses his rights [under La. Civ. Code
arts. 744 and 745], he is bound to repair the prejudice sustained by the owner of the
servient estate.” 4 A. N. Yiannopoulos, La. Civ. L. Treatise, Predial Servitudes § 7.4 (4th
ed. 2015).
13. “The expense of the constructions and repairs is borne by the owner of the dominant
estate, even if they are needed because of an inherent vice of the servient estate or
because of a change in the situation of the estates. When constructions or repairs are
needed because of a fault of the owner of the servient estate, the expense is borne by the
owner of that estate.” 4 A. N. Yiannopoulos, La. Civ. L. Treatise, Predial Servitudes
§ 7.4 (4th ed. 2015).
14. ExxonMobil must make the necessary repairs at its expense at this time. However, all
issues regarding ExxonMobil’s and Defendants’ right to damages and all other issues

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properly raised in the pleadings which are not resolved in this ruling, are reserved to the
time of trial.
D. Other requirements for the injunction
15. Given the treat of environmental damage if the anomaly is not repaired, ExxonMobil has
established that a substantial threat that the movant will suffer irreparable injury if the
injunction is denied.
16. Given the considerable harm that could result if the injunction is denied, given fact that
all issues related to damages have been reserved for the full trial on the merits, and given
the scope of the injunction and how narrowly tailored ExxonMobil’s rights are herein, the
threatened injury outweighs any damage that the injunction might cause the Defendants
17. Finally, the injunction will not disserve the public interest. Indeed, this preliminary
injunction will greatly serve the public interest. Again, failure to repair the pipeline could
cause a spill and thus considerable environmental damages. Further, a shutdown of this
strategic pipeline could cause damage to the economy.
(concluded on next page)

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CONCLUSION
Accordingly, Plaintiff ExxonMobil Pipeline Company’s Motion in Support of
Preliminary Injunction is GRANTED; and
A PRELIMINARY INJUNCTION IS HEREBY ENTERED authorizing ExxonMobil
to enter Defendants’ property via their driveway and to excavate and repair its 16” EMPCo No. 1
Crude Oil Pipeline by using the Property outside the Servitude as necessary to repair the
anomaly and restore lateral support and depth of cover to 36 inches, including draining the pond,
restoring the 10 foot buffer zone, and using the Property to the extent necessary to perform the
work.
Signed in Baton Rouge, Louisiana, on January 26, 2016.

S

JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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