United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 9, 2005
Charles R. Fulbruge III
Clerk
No. 04-40603
C & E LAND CO; ET AL
Plaintiffs
CEO INVESTMENTS INC
Plaintiff - Appellant
versus
AIR PRODUCTS LP
Defendant - Appellee
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Appeal from the United States District Court
for the Eastern District of Texas
1:03-CV-531-MAC-ESH
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Before GARWOOD, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Appellant CEO Investments, Inc. (“CEO”) appeals the district
court’s denial of its motion for summary judgment and the
district court’s grant of Appellee Air Products, L.P.’s (“Air
Products”) motion for partial summary judgment.1 After
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
Air Products filed a motion for partial summary judgment
because there were two other parties in the proceeding. Those
two parties were later severed, and at the time the partial
summary judgment was granted it fully disposed of the issues
considering the record and the parties’ briefs and arguments on
appeal, we affirm the district court’s judgment, principally for
the reasons set forth in the magistrate judge’s report and
recommendation, which was adopted by the district court.
We agree with the district court’s determination that the
language of the easement in question unambiguously allows Air
Products to transport hydrogen. The easement grants a pipeline
right of way “for the transportation of oil, petroleum, gas, the
products of each of the same, water, other liquids and gases, and
mixtures of any of the foregoing . . . .” The plain meaning of
this language includes hydrogen.
Because we find that the easement unambiguously allows for
the transportation of hydrogen, we do not need to address
Appellant’s arguments based on extrinsic evidence or the
application of ejusdem generis. See Sun Oil Co. v. Madeley, 626
S.W.2d 726, 728 (Tex. 1981); Nicol v. Gonzales, 127 S.W.3d 390,
395 (Tex. App. - Dallas 2004).
Finally, we find no merit in Appellant’s contention that the
district court erred by ordering a take nothing judgment against
it. From the context of this case, it is clear that the district
court’s order that Appellant take nothing merely reflects its
determination that Air Products owns an easement that allows it
to transport hydrogen through Appellant’s property. The district
court’s take nothing judgment against Appellant does not decide
between CEO and Air Products.
any other issues with respect to Appellant’s property ownership.
See Davidson v. Gelling, 263 S.W.2d 940, 943 (Tex. 1954) (citing
Campbell v. Schrock, 50 S.W.2d 788, 791 (Tex.Com.App. 1932)).
For the foregoing reasons, the district court’s judgment is
in all things AFFIRMED.