IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 01-30131
__________________________
TERREBONNE PARISH SCHOOL BOARD,
Plaintiff-Appellant,
versus
COLUMBIA GULF TRANSMISSION CO. and
KOCH GATEWAY PIPELINE CO.,
Defendants-Appellees.
___________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
___________________________________________________
May 10, 2002
Before DUHÉ, WIENER, and BARKSDALE, Circuit Judges.
WIENER, Circuit Judge:
Plaintiff-Appellant the Terrebonne Parish School Board (the
“Board”), as owner of a servient estate, appeals from the district
court’s summary judgment that the Board’s causes of action against
the two owners of separate dominant estates —— Defendants-Appellees
Koch Gateway Pipeline Company (“Koch”) and Columbia Gulf
Transmission Company (“Columbia”) —— have prescribed. Concluding
that genuine issues of material fact exist with regard to
prescription of the Board’s possible causes of action under
Louisiana’s law of delict (tort) and contract, we reverse the
district court’s grant of summary judgment and remand.
I.
FACTS AND PROCEEDINGS
Shortly after Louisiana gained statehood, Congress extended to
Louisiana a policy of reserving, from among the public lands in
newly created states, the sixteenth section of every township for
the support of education.1 This policy created a patchwork of
reserved section sixteen lands (“sections sixteen”) throughout each
such state, as a result of uniform surveying according to the
township-and-range system. (A township is six miles square and
contains thirty-six sections, which are one mile square; thus each
section sixteen is five miles distant from the nearest other
sections sixteen, one in each of the four contiguous townships.)
Title to sections sixteen in Terrebonne Parish passed from the
United States to the Board sometime during the nineteenth century.2
The Board-owned section sixteen that is located in Township 18
South, Range 13 East, Terrebonne Parish, Louisiana, and which
contains about 641 acres, is the subject of this case and is
hereafter referred to as “Section 16 (18-13).”
1
See Act of April 21, 1806, 2 Stat. 391, 394 (reserving
sections sixteen in the western district of the territory of
Orleans); Act of Feb. 15, 1811, 2 Stat. 617, 618–19 (extending the
same policy to the eastern district of the territory of Orleans);
Act of March 26, 1804, 2 Stat. 283, 283 (defining the “territory of
Orleans” to be that portion of the Louisiana Purchase lying below
the thirty-third parallel).
2
See, e.g., Act of Feb. 15, 1843, 5 Stat. 600 (authorizing the
Louisiana state legislature to convey in fee simple lands in the
state reserved by Congress for the use of schools).
2
Before the events at issue here, much of Terrebonne Parish,
including Section 16 (18-13), consisted of floating freshwater
marsh. Typically, this kind of marsh comprises “marsh mats” that
are as much as a foot thick and literally float several feet above
the silt and clay bottom, unattached by roots.
Section 16 (18-13) is now traversed by two pipelines that
exist pursuant to conventional (contractual) servitude agreements
granted by the Board. The first was constructed pursuant to a
“standard form” agreement executed by the Board in 1957 in favor of
Koch’s ancestor in interest. This servitude agreement (the “Koch
Agreement”) reads in part as follows:
That for and in consideration of THREE HUNDRED SIXTY SIX
AND 60/100 ($366.60) Dollars . . . Grantor does hereby
Grant and Convey unto United Gas Pipeline Company . . .
a right of way and easement one hundred feet in width to
construct, maintain, operate, repair, replace, change the
size of and remove pipe lines and appurtenances thereto,
including the right at its election to lay such pipe line
or lines in open ditches or canals not to exceed forty
feet in width, which may be filled in or left open at the
option of Grantee . . . .
. . .
TO HAVE AND TO HOLD unto Grantee, its successors and
assigns, so long as the rights and easements herein
granted, or any of them, shall be used by, or useful to
Grantee for the purposes herein granted, with ingress to
and egress from the premises, . . . for the purposes of
construction, inspecting, repairing and replacing the
property of Grantee herein described . . . .
. . .
[S]aid Grantor shall not obstruct or permit to be
constructed any house, structures or obstructions, on or
over, or that will interfere with the maintenance or
operation of, any pipe line or appurtenances constructed
hereunder, and will not change the grade over such pipe
line.
Koch’s pipeline canal was dredged and its pipeline built in 1958.
3
In 1964, Columbia entered into negotiations with the Board to
build the second pipeline across Section 16 (18-13). During
negotiations, however, Columbia built its pipeline. When, in 1965,
this trespass was discovered by the Board, it and Columbia
negotiated a servitude agreement using a somewhat different
standard form (the “Columbia Agreement”). In return for $685.20,
the Board granted Columbia
a servitude, right of way and easement to construct, lay,
maintain, operate, alter, repair, remove, change the size
of, and replace a pipe line and appurtenances thereto,
including but not limited to fittings, tie-overs, valves,
corrosion control equipment and other apparatus . . . .
. . .
[S]aid Grantors shall not construct nor permit to be
constructed any house, structures, or obstructions and
shall not plant nor permit to be planted trees on or
over, or that will interfere with the construction,
maintenance or operation of any pipe line or
appurtenances constructed hereunder, and will not change
the grade over such pipe line.
The right of way granted herein shall be 100 feet
wide . . . . It is understood and agreed that Grantee
shall not be required to backfill the open flotation
ditch excavated during construction.
It is hereby understood that the Grantee, its
successors and assigns, shall not be obligated to pay
Grantors or any subsequent owner of [Section 16 (18-13)]
any damages resulting from the construction of the
[pipeline], such damages having been anticipated and paid
in advance at the time of execution of this instrument.
Koch and Columbia have continuously maintained the pipelines,
often using the canals to do so. Both concede, however, that they
have not maintained the canals or their banks.
The Board contends that, at least partly as a result of the
servitude holders’ failure to maintain the canals or their banks,
the canals have widened and their banks have been breached. The
4
Board asserts that the Koch canal has widened to an average width
of 70 feet, almost double the 40-foot limit specified in the Koch
Agreement; and that the Columbia canal has widened beyond the
specified 100-foot right of way, to an average width of 135 feet.
Koch and Columbia (collectively, “the defendants”) object that
there is no record evidence for these statistics, but a scaled
satellite photo tends to support the Board’s assertion. There is
also causation evidence suggesting that breaches in the canals’
banks have exposed the floating marsh to tidal surges, which have
washed away, and continue to wash away, the light organic soil
necessary for the marsh mats to cohere. The record suggests that
this erosion may occur slowly —— and vertically —— from the water
bottom up, causing the marsh mats to thin out and eventually
disappear. Now, argues the Board, where there was once healthy
marsh, there is open water.
The Board sued several entities that operated on its sections
sixteen, filing the instant action in state court in October 1999
against Columbia and Koch jointly, and seeking either the physical
restoration of Section 16 (18-13) or compensatory damages. The
Board’s petition contains explicit tort and contract claims, the
latter including an innominate property argument.3 The defendants
3
The sum of the petition’s property argument is this:
“Defendants had a duty to use only so much of the School Board
property as necessary to conduct operations,” and they “breached
their duty as reasonably prudent operators to cause the least
possible damage” to Board property, and, in their failure to
restore the property, they “unreasonabl[y] exercise[d their] rights
5
removed to the Eastern District of Louisiana and later moved for
summary judgment.
The district court granted summary judgment to the defendants.
It held, in contract, that the servitude agreements did not require
Columbia and Koch to continue to maintain the canals’ banks;
therefore any contractual claim had prescribed. In tort, the
district court reasoned that failure to maintain a canal is not
conduct that can support a claim under a continuing tort theory.
The district court also held that the Board’s “failure to hire an
expert or investigate the erosion at the time it became aware of
the damage does not prevent prescription from commencing.”
Apparently viewing the defendants’ liability as arising out of
discontinuous violations, the court held that prescription of the
Board’s delictual (tort) claims began to run when it learned of the
damage to various of its sections sixteen. As the Board “was aware
of the erosion of Section 16 in or before 1985,” the district court
reasoned, it cannot now maintain an action with respect to Section
16 (18-13). This timely appeal followed.
II.
ANALYSIS
Even though the district court approached this case as largely
implicating tort claims, it actually involves equal or greater
questions of contract and property rights. To review the district
without regard to those of plaintiff.”
6
court’s ruling, we must consider procedural and delictual issues,
but the Louisiana law that governs this case is chiefly the civil
law of servitudes —— a mixture of contract interpretation and
suppletive (gap-filling) rules of property law.
A. Standard of Review
The Board appeals from summary judgment, which the district
court characterized as turning on prescription. We review a grant
of summary judgment de novo, applying the same standard as the
district court.4 A motion for summary judgment is properly granted
only if there is no genuine issue as to any material fact and the
moving party is entitled to a judgment as a matter of law.5 An
issue is material if its resolution could affect the outcome of the
action.6 In deciding whether a fact issue has been created, the
inferences to be drawn from the evidence must be viewed in the
light most favorable to the nonmoving party.7
B. Procedure
Initially, we must address one challenge that the Board raises
to the procedural propriety of summary judgment in the district
4
Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380
(5th Cir. 1998).
5
FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
6
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
7
See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962);
Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir.
1999).
7
court. The Board urges that summary judgment for Columbia was
improper because it did not seek summary judgment on the basis of
prescription. Rather, notes the Board, the district court sua
sponte rendered summary judgment based on prescription of the
Board’s claims against Columbia; and, in so doing, the court failed
to give the Board ten days’ notice, which this Circuit requires.8
We review the failure to furnish such notice for harmless error.9
Columbia counters that error, if any, was harmless, stating
accurately that (1) Columbia pleaded prescription as an affirmative
defense; (2) Koch moved for summary judgment on the basis of
prescription; and (3) the Board filed a lengthy answer that
responded to Koch’s prescription argument. Furthermore, Columbia
did move for judgment on the pleadings, or in the alternative for
partial summary judgment, with respect to the tort claims, even
though this motion did not address prescription. In addition, the
district court granted summary judgment only five days before the
bench trial was scheduled to begin, and the Board has not
identified material evidence that it was unable to present to the
8
See Judwin Properties, Inc. v. United States Fire Ins. Co.,
973 F.2d 432, 436–37 (5th Cir. 1992) (noting that a district court
may grant summary judgment sua sponte, but that it must give the
nonmovant ten days’ notice; and finding error because even if
summary judgment is proper on the merits, the nonmovant is entitled
to an opportunity to defend against it).
9
Washington v. Resolution Trust Corp., 68 F.3d 935, 939–40
(5th Cir. 1995) (citing Leatherman v. Tarrant County Narcotics
Intelligence & Coordination Unit, 28 F.3d 1388, 1398 (5th Cir.
1994)).
8
district court because of the lack of notice. Lastly, the legal
theories and facts that the Board marshals against each defendant
are quite similar. In light of the foregoing, we conclude that the
Board had ample opportunity to defend, so any procedural error in
entering summary judgment for Columbia without ten days’ advance
notice was indeed harmless. We therefore turn to the merits.
C. Substance
Substantive analysis of this case requires first that we touch
on the distinction between contract and delict (or tort) under
Louisiana law.10 To paraphrase Planiol, contractual fault consists
of violating a contractual obligation; delictual fault is an act
between juridical strangers that violates some duty imposed by law,
not by contract, and that requires reparation.11 The parties here
are juridical acquaintances. The Board, Columbia, and Koch’s
predecessor decided to burden one estate for the benefit of two
others. These decisions created conventional predial servitudes
that the parties memorialized in servitude agreements.12 The proper
place to begin analyzing this case is thus the servitude agreements
themselves. Then we shall turn to obligations supplied or imposed
10
See, e.g., Davis v. Le Blanc, 149 So. 2d 252, 254 (La. App.
3 Cir. 1963).
11
See State ex rel Guste v. Simoni, Heck & Associates, 331 So.
2d 478, 490 (La. 1976) (Summers, J., dissenting) (quoting 2 M.
PLANIOL, TREATISE ON THE CIVIL LAW, Nos. 873–74 at 485–86 (11th ed. La.
State. L. Inst. trans. 1939)).
12
See LA. CIV. CODE ANN. art. 646 (West 1980) (defining “predial
servitude”).
9
by the Civil Code.
1. Contract
When there is a contract, it is law between the parties and
must be performed in good faith and enforced according to its
terms.13 When, as here, the contract creates a conventional predial
servitude, the mode of use of the servitude is regulated by the
contract.14 If, however, the contract is silent on a non-essential
question, like the mode of use, Louisiana’s law of conventional
obligations in general and predial servitudes in particular
supplies the answer, filling in the blanks.15
The parties dispute two aspects of their contractual
relationship: (1) whether the Board released Koch and Columbia from
liability for marsh erosion; and (2) whether the contract imposes
any duties to maintain the canal or its banks —— stated
differently, any duties to protect the servient estate against
damage resulting from use of the servitude.
a. Release
Koch and Columbia contend that even if they (1) owed a duty,
under any of the Board’s theories, to prevent the canals from
widening and their banks from being breached, (2) violated that
13
See LA. CIV. CODE ANN. art. 1983 (West 1987).
14
See Ogden v. Bankston, 398 So. 2d 1037, 1040 (La. 1981).
15
See LA. CIV. CODE ANN. art. 697 (West 1980) (“The use and
extent of such servitudes are regulated by the title by which they
are created, and, in the absence of such regulation, by the
following rules.”).
10
duty, and (3) are liable on a cause of action that has not
prescribed, Koch and Columbia were released by the Board. When the
Board executed the servitude agreements, it also executed standard-
form releases. The release obtained from the Board by Koch’s
ancestor in title provided:
This will acknowledge receipt of the sum of Fourteen
Hundred Sixty-six & 40/100 ($1466.40) DOLLARS . . . paid
by UNITED GAS PIPE LINE COMPANY in full and complete
settlement and satisfaction in advance for all damages
caused to crops, timber, fences, lands or other
improvements owned or leased by the undersigned along and
in the vicinity of the [pipeline across Section 16
(18-13)], which said damages may be caused by reason of
the construction of said line or operations in connection
with the construction thereof.
[The Board] hereby acknowledges and declares that
the above mentioned payment is made in full consideration
of all damages which may be occasioned as above set forth
by either United Gas Pipe Line Company or Contractor
engaged in the building and construction of said pipe
line.
It is clear that this agreement, by its express terms, released
United Gas (and thus Koch) only from claims for damage resulting
from the pipeline’s construction. The damages bargained for are
those that “may be caused by reason of the construction” of the
pipeline “or operations in connection with” its construction, “by
either United Gas Pipe Line Company or Contractor engaged in the
building and construction.” Only the phrase “in advance” has any
potential for ambiguity in this regard, and even that is easily
explained. Use of this phrase merely acknowledged the simple fact
that the pipeline had yet to be built; it did not address the fact
that the damages released might actually result from a released
11
party’s act or omission decades after the pipeline’s construction.
In releasing Columbia, the Board acknowledged that it was paid
$7,879.80
in full payment and settlement for all damages of every
kind and character (contractual, negligence or otherwise)
caused to [the Board’s] interest(s) as owner(s) by the
construction, operation, [and] maintenance of a pipe line
and appurtenances across [Section 16 (18-13)], in the
place and manner such pipe line and appurtenances have
been constructed and laid, and we release and discharge
[Columbia] from all liability therefor.
At the time of this release, Columbia had already built its
pipeline across Section 16 (18-13), albeit as a trespasser.
Consequently, the release’s verbs are in the past tense: “caused”
and “in the manner such pipe line and appurtenances have been
constructed and laid” entail no futurity. Our interpretation ——
that this release did not, and was not intended to, cover damages
that might be caused by acts or omissions decades later —— is
confirmed by the servitude agreement itself, which states that
[i]t is hereby understood that the Grantee, its
successors and assigns, shall not be obligated to pay
Grantors or any subsequent owner . . . any damages
resulting from the construction of the first pipe line
authorized hereunder, such damages having been
anticipated and paid in advance at the time of execution
of this instrument.
Once again, the language focuses on damages resulting from
construction of, not from continued use of or failure to maintain,
the pipeline and canal.
Koch and Columbia nevertheless argue that to the extent the
Board’s causation theory is correct, the marsh erosion does result
12
(eventually) from “construction” of the pipeline. We disagree.
This remote causation proposition may sound reasonable in
hindsight, but nothing in the record supports the view that in
signing these agreements and releases, the parties had any
contemplation that erosion would occur. The agreements and
releases are at best ambiguous as to whether the parties
anticipated marsh erosion and intended to include marsh erosion
damages caused decades later in their bargain.16 One Louisiana
court, in construing a similar release from claims arising from
pipeline construction, held that the release applied only to claims
existing when the release was executed, because the release was a
standard form and was ambiguous with respect to the claims at
issue.17 We cannot read the ambiguous standard-form language here
as encompassing the erosion damages of which the Board complains.
b. Continuing Contractual Duty to Maintain
The parties also debate whether the servitude agreements
require Columbia and Koch to maintain the banks of the canals so as
to prevent widening and breach. Although the district court stated
that it granted the motion for summary judgment “only as to
prescription of the claims,” this characterization overlooks its
own explicit ruling that the servitude agreements did not impose a
16
Compare the explicit letter of agreement in Ryan v. Southern
Natural Gas Co., 879 F.2d 162 (5th Cir. 1989), which we discuss
below.
17
Vizinat v. Transcontinental Gas Pipeline Corp., 552 So. 2d
1237, 1238–39 (La. App. 3 Cir. 1989).
13
continuing duty to maintain the canals. This ruling flowed in turn
from the court’s understanding of St. Martin v. Mobil,18 in which
we affirmed a trial court’s conclusion that such a duty existed.
In that case, the servitude agreement provided that
Grantor does hereby convey to [Grantee], its successors
and assigns, the right and servitude to dredge,
construct, maintain and use a canal having a width of 65
feet. . . . Grantee is also given the right to deposit
spoils within a distance of 150 feet on each side of the
banks of the canal, but shall do so in such manner as to
cause as little interference as possible to drainage.19
Despite the implication from this language that the canal was
meant to drain, we held that the agreement imposed a duty on
Grantee to maintain the banks of the canal so as to prevent further
marsh erosion.20 We also concluded, from the agreement’s statement
that the rights it created would exist until leases expired, that
the ten-year prescriptive period in contract did not apply, and
that the landowner’s right to enforce the canal owner’s duty to
maintain the canal lasted for the length of the servitude.21
In the instant case, the district court distinguished St.
Martin on the ground that here “[t]here is no language regarding
the continuing obligations of the defendants in either of the
contracts.” Therefore, reasoned the court, St. Martin v. Mobil did
18
St. Martin v. Mobil Exploration & Producing U.S. Inc., 224
F.3d 402 (5th Cir. 2000).
19
Id. at 414 (Barksdale, J., dissenting).
20
Id. at 408–10 (majority).
21
Id. at 409 n.9.
14
not apply, and the Board lacked a viable claim in contract. We
agree with this distinction only in part, disagreeing in part as
well.
One basis for this distinction, advanced on appeal by Koch and
Columbia, is that the agreement in St. Martin v. Mobil was a canal
servitude, unlike these agreements, which specify pipelines, not
canals. This argument is an oversimplification. Each agreement at
issue here grants a right of way and easement for a “pipe line and
appurtenances thereto.” The Koch Agreement specifically states
that this grant “includ[es]” the right to lay the pipeline in “open
ditches or canals.” The Columbia Agreement specifically states
that the “Grantee shall not be required to backfill the open
flotation ditch excavated during construction.” Both agreements
provide that the Board “will not change the grade over such pipe
line,” so that the right to change the grade along the pipeline
rests with Koch and Columbia, not the Board.
Both Koch and Columbia concede that they continue to use the
canals to inspect and maintain the pipelines. We harbor no doubt,
then, that if the Board were to try to fill in the canals, Koch and
Columbia would cry foul, and rightly so. We therefore view the
canals not merely as vestiges of the pipelines’ original
construction that have no relevance to the parties’ continuing
relationship, but rather as “appurtenances”22 to the pipelines and
22
Webster’s defines “appurtenance” as:
1: an incidental property right or privilege . . .
15
essentials to their use. The canals are part and parcel of these
conventional predial servitudes.
The more meaningful distinction between this case and St.
Martin v. Mobil is found in the answer to the question whether the
servitude agreements require that the canals be maintained. We
agree with the district court that the language in these agreements
is much less explicit and more ambiguous than the language in the
St. Martin v. Mobil agreement. As a matter of contract
interpretation alone, the mere grant of a right to maintain a canal
does not necessarily impose the duty to maintain it or to take
other steps to prevent the canals from widening and the surrounding
marsh mat from eroding. But neither do the agreements clearly
belonging to a principal right . . . 2: a subordinate
part, adjunct, or accessory . . . 3 appurtenances pl:
accessory objects used in any function: apparatus, gear.
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 107 (1986). American Heritage
gives the following:
1. Something added to another, more important thing; an
appendage. . . . 2. appurtenances. Equipment, such as
clothing, tools, or instruments, used for a specific
purpose or task; gear. 3. Law. A right, privilege, or
property considered incident to the principal property
for passage of title, conveyance, or inheritance.
AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 91 (3d ed. 1992). The
O.E.D. is similar:
1. Law and gen. A thing that belongs to another, a
‘belonging’; a minor property, right, or privilege,
belonging to another more important, and passing in
possession with it; an appendage.
2. A thing which naturally and fitly forms a
subordinate part of, or belongs to, a whole system; a
contributory adjunct, an accessory.
3. esp. in pl. The mechanical accessories employed
in any function or complex scheme; apparatus, gear.
1 OXFORD ENGLISH DICTIONARY 589–90 (2d ed. 1989).
16
contemplate that the canals will widen; nor do they either
explicitly or implicitly permit Koch and Columbia simply to stand
by and let this happen while continuing to use the canals in
connection with their use of the pipeline servitudes.
Indeed, on this point each agreement contains an internal
contradiction: Each specifically allows the grantee to keep the
canals open and bars the Board from regrading; but the Koch
Agreement gives the grantee the right to dig a canal “not to exceed
forty feet in width,” and the entire width of each servitude is
only one hundred feet. The parties variously contend that these
provisions resolve the marsh-erosion question one way or the other,
but in light of what the summary-judgment evidence tells us about
the delicate hydrology of floating marshes, we view these
provisions as being in internal conflict, to whatever extent they
bear on the question. This conflict suggests that the parties
either did not anticipate erosion damage in drafting and signing
the agreements or did not intend the explicit language of the
agreements to resolve the liability question one way or the other.
This case, therefore, does not at all resemble Ryan v.
Southern Natural Gas Co.,23 on which Columbia relies heavily. As
here, the landowner in Ryan sued the pipeline servitude owner for
damages caused by the erosion of marshland and the widening of a
23
Ryan v. Southern Natural Gas Co., 879 F.2d 162 (5th Cir.
1989).
17
pipeline canal.24 We held that language of the servitude agreement
governed the parties’ relationship, “reliev[ing the pipeline owner]
of any duty to dam the canal,” and therefore the landowner could
not recover either in tort or in contract, at least on the
servitude agreement itself.25 The best factual support for our Ryan
holding was not the servitude agreement’s provision (as in the Koch
Agreement here) that the pipeline canal could be left “open,”26 but
rather, as the district court noted, the pipeline owner’s signature
on and the landowner’s acceptance of a “letter agreement” that
bound the former to pay the latter $400 per acre of land encroached
on by the canal in the event that it widened.27 The intent of the
Ryan parties, as evidenced by this letter agreement, precluded
recovery by the Ryan plaintiffs on the servitude agreement,
irrespective of the underlying legal theory advanced. Ryan is
therefore clearly distinguishable from the instant case, as there
is no provision in either the Koch Agreement or the Columbia
Agreement —— or any side agreement —— that demonstrates how the
parties intended to treat claims of marsh erosion.
As we do not understand the pertinent kind of erosion to have
been within the parties’ contemplation for release purposes, it
24
Id. at 163.
25
Id. at 165.
26
Id. at 164.
27
Ryan v. Southern Natural Gas Co., 1987 WL 19044, *2 (E.D.
La.).
18
should come as no surprise that we do not interpret the servitude
agreements themselves as determining whether Koch and Columbia have
a continuing duty to prevent marsh-erosion damage. Therefore,
under Louisiana law, our task shifts from plain-wording contract
interpretation to application of the Louisiana Civil Code’s
suppletive rules for immovable property, which —— together with
relevant case law —— come into play when issues are not explicitly
disposed of in the writings of the parties.28
c. Louisiana’s Suppletive Law —— Conventional
Servitudes
Civil Code article 697 establishes that when the parties
creating a conventional servitude do not specify the use and extent
of that servitude, Louisiana’s suppletive rules of property law
apply.29 Because the district court did not apply any of them, we
shall address them only to the extent necessary to determine
whether the district court correctly granted Koch and Columbia
summary judgment on the basis of prescription.
One principle of servitude jurisprudence is that ambiguity in
a servitude agreement must be construed in favor of the servient
28
Given our uncertainty as to whether the Board had notice of
erosion in Section 16 (18-13), which we discuss below, we do not
accept, for summary-judgment purposes, Koch’s and Columbia’s
arguments that the Board acquiesced in a course of performance that
evinces the intention of the parties with respect to marsh erosion.
29
LA. CIV. CODE ANN art. 697.
19
estate30 —— here, the interests of the Board. As the Louisiana
Supreme Court has reasoned:
Predial servitudes are in derogation of public policy
because they form restraints on the free disposal and use
of property. Therefore, servitudes are not entitled to
be viewed with favor by the law and can never be
sustained by implication. Any doubt as to the existence,
extent or manner of exercise of a predial servitude must
be resolved in favor of the servient estate.31
This principle militates in favor of our interpretation of the
servitude agreements and suggests that they do not govern marsh-
erosion claims.
Another well-established rule of servitude law is that the
dominant estate owner —— here, each defendant —— must not
“aggravate” the condition of the servient estate.32 As Professor
30
LA. CIV. CODE ANN. art. 730 (West 1980) (“Doubt as to the
existence, extent, or manner of exercise of a predial servitude
shall be resolved in favor of the servient estate.”); McGuire v.
Central Louisiana Electric Co., 337 So. 2d 1070, 1072 (La. 1976).
31
Palomeque v. Prudhomme, 95-0725, 7 (La. 11/27/1995), 664 So.
2d 88, 93 (citations omitted).
32
See LA. CIV. CODE ANN. art. 743 (West 1980) (“Rights that are
necessary for the use of a servitude are acquired at the time the
servitude is established. They are to be exercised in a way least
inconvenient for the servient estate.”); LA. CIV. CODE ANN. art. 745
(West 1980) (“The owner of the dominant estate . . . may deposit
materials to be used for the works and the debris that may result,
under the obligation of causing the least possible damage.”); Duet
v. Louisiana Power & Light Co., 169 F. Supp. 184, 186 (D. La.
1958):
It is settled in Louisiana . . . that one having an
easement or servitude on another’s land is bound to use
that easement or servitude in such manner as not
unreasonably to injure the right of the owner of the
servient estate, and that if the owner of the easement or
servitude uses it in a negligent, unauthorized, or
unreasonable manner, the owner of the servient estate may
20
A.N. Yiannopoulos has observed, the duty not to aggravate the
condition of the servient estate, “correlative of the real right of
servitude, is not grounded on negligence”; and, absent an express
contractual exoneration for marsh erosion damages, “to the extent
that the damage to the servient estate was caused by abuse of
right, the damage should be compensable.”33
Furthermore, the duty not to aggravate the servient estate is
a continuing duty. This is the lesson of Lewis v. Sohio Petroleum
Co.,34 in which the Louisiana Supreme Court evidently found merit
in a claim similar to the one advanced by the Board, tersely
reversing a summary judgment that the plaintiff’s causes of action
had prescribed.35 Lewis involved a canal servitude agreement that
provided that the canal “shall not be more than sixty-five feet
maintain an action for damages resulting from such use.
See also Stephens v. Int’l Paper Co., 542 So. 2d 35, 39 (La. App.
2 Cir. 1989); Board of Commissioners v. Ill. Cent. Gulf R.R. Co.,
379 So. 2d 838, 841 (La. App. 4 Cir. 1980); A.N. YIANNOPOULOS, 4
LOUISIANA CIVIL LAW TREATISE: PREDIAL SERVITUDES § 156 (West 1997) (“The
owner of the dominant estate may not make a use of the servitude
that aggravates the condition of the servient estate.”); id. § 152
(“The propositions that the owner of the dominant estate may only
use the servitude within the limits established by title or
possession and that he cannot make changes in the manner of use of
the servitude that aggravate the condition of the servient estate
are self-evident and do not require legislative affirmation.”).
33
YIANNOPOULOS, PREDIAL SERVITUDES, supra, § 156.
34
Lewis v. Sohio Petroleum Co., 532 So. 2d 754 (La. 1988).
35
Id.
21
wide.”36 In 1957, the canal exceeded its permissible width by
thirty feet.37 When the landowner sued, in 1985, the intermediate
appellate court affirmed summary judgment on the ground that the
plaintiff’s claims had prescribed.38 The Louisiana Supreme Court,
however, granted certiorari, reversed the summary judgment, and
remanded the case to the district court with instructions to refer
the exception of prescription to the merits.39 From this result,
we conclude that the life of the duty of a servitude owner not to
aggravate the condition of the servient estate by allowing a canal
to widen is coextensive with the life of the servitude. When such
a duty exists, it is continuous.
Whether and to what extent the defendants’ use of the canals
caused the deterioration of the Board’s property and aggravated the
servient estate are questions to be determined in the light of this
case’s particular circumstances.40 As the district court made no
factual findings on this point, even a de novo appellate review of
36
Lewis v. Sohio Petroleum Co., 528 So. 2d 1084, 1086 (La. App.
3 Cir. 1988).
37
Id. at 1087.
38
Id. at 1085, 1090.
39
Lewis, 532 So. 2d at 754 (La.).
40
YIANNOPOULOS, PREDIAL SERVITUDES, supra, § 156. See also Chevron
U.S.A., Inc. v. Common L.P., 1999 WL 1021831 (E.D. La.) (“[C]ourts
should take into account the situation of the estates, the
agreement of the parties, the needs of the dominant estate at the
time of the creation of the servitude, and the prejudice sustained
by the owner of the servient estate.”). This is a fact-intensive
inquiry best left to the district court or jury.
22
this issue would be improvident. It is enough for us to conclude
that it was improper for the district court to grant summary
judgment on the basis that, because the contracts did not expressly
impose a continuing duty, any contract claim had prescribed.
d. Damages Recoverable; Prescriptive Period
Even if the district court determines, on remand, that Koch
and Columbia are under a continuing duty not to aggravate the
servient estate, effectively rendering prescription irrelevant for
liability purposes, prescription may nevertheless matter when it
comes to damages.41 The prescriptive period governing a claim for
aggravation of a servient estate is not yet well established in
Louisiana.
When adjudicating a claim for which state law provides the
rule of decision, federal courts are bound to apply the law as
interpreted by the state's highest court; but if the state’s
highest court has not spoken on a particular issue, we must make an
“Erie guess” and determine as best we can what the highest court of
the state would be most likely to decide.42 The district court’s
task on remand will be to “attempt to predict state law, not to
41
See R. J. Reynolds Tobacco Co. v. Hudson, 314 F.2d 776, 781
(5th Cir. 1963) (stating that where alleged offense was a
continuing tort, parties may recover for the damages sustained
within the applicable prescriptive period before suit was filed).
42
Barfield v. Madison County, Miss., 212 F.3d 269, 271–72 (5th
Cir. 2000).
23
create or modify it.”43 In making that attempt, a federal court
“may look to the decisions of intermediate state courts for
guidance.”44 Indeed, “a decision by an intermediate appellate state
court is a datum for ascertaining state law which is not to be
disregarded by a federal court unless it is convinced by other
persuasive data that the highest court of the state would decide
otherwise.”45
Only one intermediate appellate Louisiana court has ruled on
the length of the prescriptive period for a claim of aggravation to
the servient estate. In Stephens v. Int’l Paper Co.,46 the court
held that the duty not to aggravate the servient estate was a
“general duty rather than a specific contractual duty or obligation
assumed by the owner of the servitude,” making the action ex
delicto and thus prescriptable in one year, rather than ex
contractu and thus prescriptable in ten years.47 This distinction
—— between general legal duties and specific contractual ones —— is
43
United Parcel Service, Inc. v. Weben Industries, Inc., 794
F.2d 1005, 1008 (5th Cir. 1986).
44
Howe ex rel. Howe v. Scottsdale Ins. Co., 204 F.3d 624, 627
(5th Cir. 2000).
45
First Nat’l Bank of Durant v. Trans Terra Corp., 142 F.3d
802, 809 (5th Cir. 1998).
46
Stephens v. Int’l Paper Co., 542 So. 2d 35 (La. App. 2 Cir.
1989).
47
Stephens, 542 So. 2d at 39. This result has received some
criticism. See YIANNOPOULOS, PREDIAL SERVITUDES, supra, § 156
(discussing the prescription holding in Stephens) (“One may, of
course, be critical of this analysis.”).
24
foundational for the distinction in Louisiana between delictual and
contractual actions:
The classical distinction between “damages ex contractu”
and “damages ex delicto” is that the former flow from the
breach of a special obligation contractually assumed by
the obligor, whereas the latter flow from the violation
of a general duty owed to all persons.48
The Stephens court, however, may have misapplied this
fundamental principle, and the district court may be persuaded that
if the Louisiana Supreme Court were to consider this issue, it
would adopt the opposite rule. For even though the servitude
agreements here do not expressly impose on the grantees an
affirmative duty actively to prevent the canals from widening, the
duty to avoid aggravating a servient estate is not one that is owed
to all persons under the law, but is one that is owed only to the
servient estateholder by the grantee as a result of the
conventional (contractual) relationship of the parties. Here, the
parties are not neighbors, and the property interests involved here
are not two contiguous but separately owned estates that have
reciprocal obligations of vicinage. The fact that, as imposed
here, the duty to avoid aggravation is supplied by the Civil Code
and is also applicable to all servitudes may not mean that the
parties’ relationships and the duties they owe each other are
general. Rather, as we observed at the outset, this case arises
out of free choices to enter into conventional relationships.
48
Davis, 149 So. 2d at 254.
25
When faced with this issue, the Louisiana Supreme Court might
determine that ten years is the appropriate prescriptive period for
an action by the grantor of a servitude against the grantee for
aggravation of the servient estate. If it did so, that conclusion
would be bolstered by the fact that prescription of the servitude
itself for nonuse is a ten-year prescription49: A coextensive
prescription period for damage to the servient estate by the
neglect of the dominant estateholder would be logical. On remand,
the district court should address whether, for damages-calculation
purposes, the Board’s cause of action for aggravation of its
servient estate is governed by a prescriptive period of one year or
of ten years.
2. Delict (Tort)
The district court also granted summary judgment on the
determination that the Board’s delictual (tort) claims had
prescribed. Louisiana law permits a party to maintain actions in
tort as well as contract,50 and we have not resolved whether
aggravation of the servient estate occurred here. We must
therefore review this summary judgment under a tort analysis as
well as a contractual one.
49
LA. CIV. CODE ANN. art. 753 (West 1980).
50
Saul Litvinoff, Contract, Delict, Morals, and Law, 45 Loy.
L. Rev. 1, 28 (1999) (“Since an early time, Louisiana courts have
been aware that a particular wrongful act could be a breach of
contract and also a quasi-delict, and that such an act would prompt
the aggrieved party to seek a contractual remedy or a delictual
one.”).
26
Regarding tort, the parties differ as to (1) whether summary
judgment was proper in a case of prescription that turns on notice;
(2) whether general notice about erosion in some sections sixteen
started the running of prescription with respect to all such
sections owned by the Board; (3) whether the doctrine of contra non
valentem prevented the running of prescription from commencing; and
(4) whether there is any continuing tort.
a. Summary Judgment on Subjective Knowledge
The Board argues that summary judgment was improper on an
issue such as prescription that turns on subjective knowledge or
notice. Although federal courts often grant summary judgment
because a statute of limitations has expired, they
refuse to grant summary judgment for defendant if there
is an issue of fact as to when the limitations period
began, such as in products-liability actions in which the
statutory period begins to run when plaintiff knew or
should have known that the injury was caused by
defendant’s product.51
Endeavoring to establish such an issue, the Board points to the
opinion of its expert, Dr. Chabreck, that the causes of marshland
erosion vary and are specific to each individual plot of land.52
Therefore, the Board urges, knowledge or notice of erosion
51
10B CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARY KAY KANE, FEDERAL
PRACTICE AND PROCEDURE § 2734 & nn.9, 21 (West 1998) (discussing
Reynolds, 314 F.3d at 776 (5th Cir.), at length).
52
Chabreck’s report states that “[J]ust because one piece of
property suffers from direct and indirect impacts due to one cause
or causes does not mean that another piece of land will suffer
direct and indirect impacts due to the same cause or causes.”
27
occurring generally in some of its sections sixteen cannot suffice
to give either actual or constructive notice of the Board’s causes
of action against these defendants for erosion to Section 16
(18-13). Koch responds that it has introduced objective,
documentary evidence that the Board knew of erosion generally in
its sections sixteen in the early 1980s. This issue therefore
reduces to whether, on summary judgment, general knowledge of the
existence of erosion problems in sections sixteen —— none of which
is closer than five miles to another —— or specific knowledge of
erosion in one or more other sections sixteen, is sufficient to
charge the Board with notice of erosion in Section 16 (18-13) in
particular. To answer this question, we must examine delictual
prescription in some detail.
b. Prescription and Contra Non Valentem
Generally, a claim in tort arising out of damage to immovable
property is subject to a one-year period of liberative prescription
which, under article 3493 of the Civil Code, begins to run “from
the day the owner of the immovable acquired, or should have
acquired, knowledge of the damage.”53 Nothing in this code article
restricts its application to third parties not in privity with the
landowner, yet the district court inexplicably failed to cite this
article. Rather, the court relied on the preceding article, 3492,
for delictual prescription in general, which begins to run “from
53
LA. CIV. CODE ANN. art. 3493 (West 1994).
28
the day injury or damage is sustained.”54 There is a palpable
difference between these standards. In cases of damage to land,
the running of prescription commences when the owner gains either
actual or constructive knowledge, not when the damage occurs, a
rule essentially congruent with the doctrine of contra non
valentem.55
“[P]rescription statutes are to be strictly construed against
prescription and in favor of the claim that is said to be
extinguished. Of the two possible constructions, the one that
maintains enforcement of the claim or action, rather than the one
that bars enforcement, should be adopted.”56 The defendant has the
initial burden of proving that a tort claim has prescribed, but if
the defendant shows that one year has passed between the tortious
acts and the filing of the lawsuit, then the burden shifts to the
plaintiff to prove an exception to prescription.57
One such exception is found in the doctrine of contra non
valentem, which prevents the commencement of the running of
54
LA. CIV. CODE ANN. art. 3492 (West 1994).
55
Short for contra non valentem agere nulla currit
praescriptio: literally, “no prescription runs against one unable
to act.” See Cartwright v. Chrysler Corp., 232 So. 2d 285, 287
(La. 1970).
56
Louisiana Health Serv. & Indem. Co. v. Tarver, 93-2449,11–12
(La. 4/11/94); 635 So. 2d 1090, 1098.
57
See Miley v. Consolidated Gravity Drainage Dist. No. 1, 98-
1321, 4 (La. App. 1 Cir. 9/12/1994), 642 So. 2d 693, 696 (involving
land erosion claims); Dixon v. Houck, 466 So. 2d 57, 59 (La. App.
2 Cir. 1985).
29
prescription “when the plaintiff does not know nor [sic] reasonably
should know of the cause of action.”58 The doctrine applies even
if the plaintiff’s ignorance is not induced by the defendant.59
Furthermore, the cause of action is defendant-specific: under
contra non valentem, prescription does not necessarily begin to run
at the first indication that the plaintiff may have suffered harm,
but rather . . . ‘when plaintiff has reasonable basis to pursue [a]
claim against [a] specific defendant.’”60 Once again, however,
because contra non valentem is a judicial exception to the
statutory rule of prescription, “Louisiana courts strictly construe
this doctrine and only extend its benefits up to ‘the time that the
plaintiff has actual or constructive knowledge of the tortious
act.’”61
It is not apparent from the district court’s opinion that the
58
Picard v. Vermilion Parish Sch. Bd., 2000-1222, 4 (La. App.
3 Cir. 4/4/2001), 783 So. 2d 590, 594.
59
Landreneau v. Fruge, 598 So. 2d 658, 662 (La. App. 3 Cir.
1992).
60
Picard, 2000-1222 at 5, 783 So. 2d at 595 (citing Jordan v.
Employee Transfer Corp., 509 So. 2d 420, 424 (La. 1987), where the
court stated that “prescription did not begin to run until [the
plaintiff] had a reasonable basis to pursue a claim against a
specific defendant”).
61
Eldredge v. Martin Marietta Corp., 207 F.3d 737, 743 (5th
Cir. 2000) (citing Bergeron v. Pan Am. Assurance Co., 98-2421, 9
(La. App. 4 Cir. 4/7/1999), 731 So. 2d 1037, 1042); Picard, 2000-
1222 at 4, 783 So. 2d at 594; Harsh v. Calogero, 615 So. 2d 420,
422 (La. App. 4 Cir. 1993) (“Contra non valentem is an exceptional
remedy . . . which is in direct contradistinction to articles in
our Civil Code. Therefore, it must be strictly construed.”).
30
court adverted to this law, or considered contra non valentem or
the effect of the idiosyncrasies of the township and range system
on this case.62 Without acknowledging the law noted above or
conducting a reasonableness analysis, the district court
nevertheless found that the Board “was aware of the erosion of
Section 16 in or before 1985,” which, as we shall describe, was a
questionable result in summary-judgment proceedings, even if by
“Section 16” the court meant Section 16 (18-13). The court did not
indicate which kind of notice —— actual or constructive —— that it
found the Board to have had; rather, the court simply stated that
the Board knew about “Section 16 land erosion.”
i. Actual Notice
Even though the record is replete with evidence that the Board
knew that marsh erosion in its sections sixteen generally was a
serious problem,63 no evidence in the summary-judgment record
62
The court stated that “the plaintiff was aware of the erosion
of Section 16,” described evidence of “the school board’s knowledge
of Section 16 land erosion,” and mentioned “the act/omissions of
the defendants on §16/T18/R13.” It is not clear from these
passages that the Board owns many sections sixteen in this vast
coastal parish, none closer to another than five miles, and many
separated by multiples of that distance.
63
According to a newspaper report, a Board member opposed
further dredging in 1981 because “it would make an already bad
erosion problem worse,” but nothing in the article indicates that
the section sixteen at issue was Section 16 (18-13). Various Board
minutes from the 1980s show that the Board was aware of erosion of
section sixteen lands. In 1982, the Board even commissioned a
study of erosion in five of its sections sixteen, but of these the
closest to Section 16 (18-13) was apparently fifteen miles distant.
As Columbia noted at oral argument, the Louisiana legislature has
enacted legislative responses to the problem of marshland erosion.
31
suggests that the Board actually knew that Section 16 (18-13) in
particular had suffered or was suffering erosion. This case is
thus distinguishable from Eldredge v. Martin Marietta Corp.64, in
which we held that contra non valentem did not apply because the
landowner personally had observed the actual damage to his property
caused by barge traffic.65
The parties have not pointed us to, nor have we located, a
case standing for the proposition that actual knowledge of damage
to one or more remote, noncontiguous tracts of land brings with it
actual knowledge of the same kind of damage to yet another
noncontiguous tract —— even a similar one —— lying miles away. We
are satisfied that actual notice must result from overt knowledge
of damage to the specific property at issue, particularly when, as
here, the plaintiff landowner has long held title to many remote
and scattered sections sixteen, only one of which is Section 16
(18-13), but many of which are located in the extensive, marshy,
southern part of this coastal parish. This observation is
bolstered by the recognition that the use and possession of these
largely inaccessible sections are generally exercised not directly
by the landowner but by licensees, invitees, or lessees. With
In 1996, a lawyer who owned land adjacent to another of the Board’s
sections sixteen made a presentation to the Board about widening of
pipeline canals.
64
Eldredge v. Martin Marietta Corp., 207 F.3d 737 (5th Cir.
2000).
65
Id. at 743.
32
respect to actual notice, then, there was at least a genuine issue
of material fact sufficient to preclude summary judgment in favor
of Koch and Columbia grounded in prescription.
ii. Constructive Notice
The question of constructive notice is more complex.
Generally, knowledge is imputed only when the plaintiff has
“information sufficient to excite attention and to prompt further
inquiry.”66 This sufficiency standard asks what is it that would
excite the attention of or prompt action by a reasonable person.
Thus, “[t]he heart of the inquiry into constructive knowledge is
the reasonableness of plaintiff’s inaction.”67
Extension by analogy is needed to make that analysis here,
because the parties have not directed us to, nor have we found, any
contra non valentem case that is directly comparable to the instant
action. Applicable Louisiana jurisprudence suggests,
unsurprisingly, that reasonableness of inaction depends almost
entirely on the particular circumstances, requiring a case-by-case
analysis.68
66
Picard, 2000-1222 at 5, 783 So. 2d at 595.
67
Id. (emphasis of “inaction” added; emphasis of
“reasonableness” original).
68
For example, the seizure of a semisubmersible drilling rig
(evidenced by a posting thereon) was deemed sufficient to excite a
reasonable person’s attention and prompt inquiry into whether a
lawyer had committed malpractice by failing to file a preferred
ship’s mortgage for the rig. Carroll v. Wolfe, 98-1910, 6 (La.
App. 1 Cir. 9/24/1999), 754 So. 2d 1038, 1041 (holding that
observing U.S. Marshals’ signs on the rig gave plaintiffs notice).
33
When the alleged fault is not obvious, delay may not be
unreasonable. If, for example, a homeowner learned from an
engineer’s report that cracks in walls resulted from a contractor’s
failure to comply with city code provisions, only then did
prescription begin to run on the homeowner’s claim against the
city, not months earlier when a mason had generally advised the
homeowner that the cracks could indicate a structural problem.69
In medical tort and redhibition cases, Louisiana courts have
explicitly disowned an inquiry-notice rule in favor of the
reasonableness standard; constructive notice is thus acquired only
after the plaintiff learns of not only the tortious act and the
damage, but also “the causal relationship between the tortious act
and the damage.”70 Consequently, “[m]ere apprehension that
something might be wrong does not make delay in filing an action
unreasonable, nor does knowledge that one has a disease.”71 In a
Similarly, when the owner of a tractor knew immediately after
retrieving it from a repair shop that it was still malfunctioning,
the owner could not sue the repairer more than one year later: the
owner’s delay was not reasonable, amounting instead to willful
neglect, which in turn rendered contra non valentem unavailable.
K & M Enters. v. Richland Equip. Co., 96-2292 6–9 (La. App. 1 Cir.
9/19/1997), 700 So. 2d 921, 924–25.
69
Rihner v. Chevalier, 98-1032, 4–5 (La. App. 5 Cir.
3/30/1999), 731 So. 2d 429, 431–32.
70
Beth Israel v. Bartley, Inc., 579 So. 2d 1066, 1072 (La. App.
4 Cir. 1991).
71
Ducre v. Mine Safety Appliances, 963 F.2d 757, 760 (5th Cir.
1992) (citations and quotation marks omitted) (citing Griffin v.
Kinberger, 507 So. 2d 821, 823 (La. 1987) and Knaps v. B & B Chem.
Co., 828 F.2d 1138, 1139 (5th Cir. 1987)); see also Beth Israel,
34
medical case, for example, even the plaintiff’s awareness that he
“had sand in his lungs” and “had evidence of silicosis” did not
suffice to start the running of prescription when doctors told the
plaintiff that his medical condition had not yet deteriorated.72
And, in a redhibition case, a synagogue that had knowledge that its
roof was leaking need not have sued a contractor, architect, and
roofing manufacturer before learning that the leaking had been
caused by a faulty roofing system and not merely by inadequate
maintenance.73 Neither did the buyers of a house have constructive
knowledge of the causation element in their cause of action until
an engineer told them that an elevation differential might be the
cause of structural damage.74
Read together, these cases establish the proposition that when
damage is evident but causation is reasonably mysterious, Louisiana
courts sometime pretermit the running of prescription. It also
appears that an investigation into causation need not be made, and
constructive notice need not be imputed, until damage becomes
579 So. 2d at 1072.
72
Ducre, 963 F.2d at 760–62. We refused to charge the Ducre
plaintiff with knowledge of his cause of action before he learned
that his silicosis could have been caused by sand-blasting. Until
he did so learn, the question of his knowledge was one for the
jury. Id. at 761–62.
73
Beth Israel, 579 So. 2d at 1072–77.
74
Encalade v. Coast Quality Construction Corp., 2000-925 (La.
App. 5 Cir. 10/31/2000), 772 So. 2d 244, 247.
35
apparent.75 Because Columbia and Koch did not establish, on summary
judgment, that the Board had actual knowledge, it was thus legal
error for the district court to hold that the Board’s “failure to
hire an expert or investigate the erosion at the time it became
aware of the damage does not prevent prescription from commencing.”
In summary, viewing the summary-judgment evidence in the light
most favorable to the Board as non-movant, the district court
lacked any evidence of actual notice and failed to apply the
appropriate legal standard of reasonableness to the question of
constructive notice. The district court may also have missed the
importance of the township-and-range system, and the nature and
separation of the Board’s properties, in determining whether there
was a genuine issue of material fact. Summary judgment on the
basis that contra non valentem did not prevent prescription of the
Board’s claims was therefore error.
c. Continuing Tort
75
See South Cent. Bell Tel. Co. v. Texaco, Inc., 418 So. 2d
531, 532 (La. 1982) (“Generally, the prescriptive period for damage
to adjacent land commences when the damage becomes apparent and the
injured party discovers who or what caused it.”); Dean v. Hercules,
Inc., 328 So. 2d 69, 73 (La. 1976) (“[D]amages from industrial
emissions and the like may not become apparent until some years
after the occurrence. Additionally, it might be impossible for the
injured party to know what or who caused the damage, until an
investigation can be made after the damage in fact becomes
apparent. In such cases, the prescriptive period would run only
from the date the damage becomes apparent.”); YIANNOPOULOS, PREDIAL
SERVITUDES, supra, § 63 (discussing obligations of vicinage) (“In
accordance with Article 3493 of the Civil Code, prescription begins
to run from the day the injured party acquired, or should have
acquired, knowledge of the injury and other pertinent facts,
namely, from the day the damage becomes apparent.”).
36
The parties also disagree whether this case involves a
continuing tort. A continuing tort presents another exception to
Louisiana’s one-year prescriptive period for delicts, because “when
the tortious conduct and resulting damages continue, prescription
does not begin until the conduct causing the damage is abated.”76
As the Louisiana Supreme Court has stated, “the continuous nature
of the alleged conduct has the dual effect of rendering such
conduct tortious and of delaying the commencement of
prescription.”77 For a continuing tort to exist, however, there
must generally be continuing wrongful conduct, coupled with
continuing damage.78 Both continuing damage and continuing conduct
are at issue here.
The district court made no ruling with respect to continuing
damage: It discussed the distinction between continuous and
discontinuous damages, but it did not identify which, in its
opinion, was occurring here. On appeal, Koch and Columbia assert
that the Louisiana Supreme Court’s decision in Crump v. Sabine
76
South Cent. Bell, 418 So. 2d at 533 (“Where the cause of the
injury is a continuous one giving rise to successive damages,
prescription dates from cessation of the wrongful conduct causing
the damage.”); Estate of Patout v. City of New Iberia, 97-1097, 9
(La. App. 3 Cir. 3/6/1998), 708 So. 2d 526, 531 (citing South Cent.
Bell).
77
Bustamento v. Tucker, 607 So. 2d 532, 539 (La. 1992).
78
South Cent. Bell, 418 So. 2d at 533.
37
River Authority79 establishes that marsh erosion is discontinuous
damage. We disagree; in fact our precedent holds otherwise. In
Crump, the plaintiff alleged that excavation of a canal permanently
drained water from her property, depriving her of marine access to
a nearby lake.80 We have distinguished such water diversion,
however, from marsh erosion:
In [Crump], the continuing presence of a canal was not
sufficient to preclude prescription. However, the damage
alleged in this case is not the mere presence of the
canals or a static condition related to their existence
(e.g. diversion of water as part of their normal course
of operation), but an ongoing and cumulatively increasing
deterioration of plaintiffs’ property adjoining the
canals due to defendants’ continuing conduct in their
failure to maintain the canal banks.81
Crump itself distinguishes between continuous and discontinuous
damage as follows:
[A] distinction is made between continuous and
discontinuous causes of injury and resulting damage.
When the operating cause of the injury is ‘not a
continuous one of daily occurrence’, there is a
multiplicity of causes of action and of corresponding
prescriptive periods. Prescription is completed as to
each injury, and the action is barred upon the lapse of
one year from the date in which the plaintiff acquired,
or should have acquired, knowledge of the damage....
[This is to be distinguished from the situation where]
the ‘operating cause of the injury is a continuous one,
79
Crump v. Sabine River Auth., 98-2326 (La. 6/29/1999), 737 So.
2d 720.
80
Crump, 98-2326 at 1–3, 6–7 (La. 6/29/99); 737 So. 2d at 723,
726.
81
St. Martin v. Mobil, 224 F.3d at 409 n.8.
38
giving rise to successive damages from day to day....’82
In the latter case, the treatise quoted in Crump suggests, “it may
be that prescription does not begin to run from the date the injury
was first inflicted, but it ought to run at least from the date the
damage was completed and the injured party acquired knowledge of
it.”83 Here, erosion of the Board’s marsh allegedly continues even
unto this day. The damage is not yet “completed,” but rather
continues, albeit slowly and imperceptibly.
With respect to the continuing conduct prong of the continuing
tort doctrine, the district court held that “[f]ailure to maintain
a canal and its levees is not ‘conduct’ of the type necessary to
support a claim under the continuing tort theory,” citing St.
Martin v. Quintana Petroleum Corp.84 in support of this proposition.
We recently affirmed St. Martin v. Quintana in an unpublished, and
therefore nonprecedential,85 decision in which we said that Ryan
controlled.86 As we have stated above, however, Ryan is
82
Crump, 98-2326 at 7 (La. 6/29/99); 737 So. 2d at 726 (citing
YIANNOPOULOS, PREDIAL SERVITUDES, supra, § 63); see also Estate of Patout
v. City of New Iberia, 2001-0151, 4 (La. App. 3 Cir. 4/3/02), 2002
WL 535037, *4 (citing same).
83
YIANNOPOULOS, PREDIAL SERVITUDES, supra, § 63 (internal quotations
and footnotes omitted).
84
2001 WL 175226 (E.D. La).
85
See 5TH CIR. RULE 47.5.
86
St. Martin v. Quintana Petroleum Corp., No. 01-30315 (5th
Cir. Feb. 20, 2002).
39
distinguishable from the instant case, as here there are no side
agreements supplementing the servitude agreements at issue and
specifically providing for the contingency of marsh erosion.
The Louisiana Supreme Court has summarized the continuing tort
exception by explaining that a continuing tort “is occasioned by
continual unlawful acts and for there to be a continuing tort there
must be a continuing duty owed to the plaintiff and a continuing
breach of that duty by the defendant.”87 This formulation does not
exclude the possibility that “unlawful acts” may include omissions
that breach a duty. To the extent that aggravation of the servient
estate might be found to have occurred as a result of such
omissions or failures to act, a reasonable factfinder could
determine that Koch and Columbia, by using the canals but failing
to protect them against resulting breaches and widening, violated
a duty and thus “acted” unlawfully. Indeed, summary-judgment
evidence suggests that the defendants might be continuing to do so.
If so, such conduct could be wrongful for the purposes of a
continuing-tort analysis. These are additional genuine issues of
material fact that preclude summary judgment grounded in tort
prescription.
D. Poiencot Deposition
Lastly, as a collateral matter, the Board has moved to strike
Columbia’s appellate record excerpt number five and any references
87
Crump, 98-2326 at 10 (La. 6/29/99), 737 So. 2d at 728.
40
to it in Columbia’s brief. This excerpt is the deposition of
Malcolm Poiencot, which is in the record. The Board argues that
the deposition (1) was not considered on summary judgment by the
trial court because the Board’s motion in limine to exclude the
deposition was pending; (2) was given by a witness who would not
qualify as an expert; (3) is not newly discovered and previously
unknown evidence, as it was taken three weeks before the district
court rendered summary judgment; and (4) is untimely, because it
was not made part of the record within ten days of the summary
judgment motion, as required by Rule 56(c). Poiencot’s deposition
testimony, which focuses on the nutria,88 goes mostly to
proportional causation, which (as we understand contra non
valentem) is not an issue in this appeal of the trial court’s
summary judgment on prescription grounds. As the subject
deposition is therefore irrelevant to our disposition of this
appeal,89 we deny the motion as moot.
88
For anyone who might not be familiar with this exotic emigré
from South America that now is a ubiquitous resident of the marshes
of South Louisiana, nutria are large aquatic rodents that feast on
marsh grasses and roots.
89
The defendants assert that Poiencot’s statements that he
warned the Board that nutria were eating the marsh in Section 16
(18-13) are further evidence supporting the conclusion that the
Board had notice of marsh deterioration in the 1980s. Nutria
damage, however, is different from hydrological erosion, and
knowledge of the former does not give constructive notice of a
cause of action based on the latter. In fact, notice of nutria
damage may make the failure to investigate into possible
hydrological erosion more reasonable, not less. See our foregoing
discussion of Louisiana contra non valentem cases.
41
III.
CONCLUSION
We agree with the district court that the servitude agreements
here at issue do not expressly impose on Columbia and Koch the duty
to prevent the canals from widening and eroding adjoining
marshland. Whether, in the absence of an express contractual duty,
the suppletive law of Louisiana might here impose such a duty
remains to be resolved, as does the question whether such a duty
might in turn render the failure to maintain canal banks a
continuing tort. Because this case presents several genuine issues
of material fact —— not the least of which implicate actual or
constructive knowledge of damage and its causation —— with respect
to prescription as well as duty, in tort and in contract, summary
judgment was not providently granted. We remand this action for
further proceedings consistent with this opinion.
REVERSED and REMANDED; MOTION DENIED.
42