United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 15, 2005
)))))))))))))))))))))))))) Charles R. Fulbruge III
Clerk
No. 04-41197
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P. BORDAGES-ACCOUNT B, L.P.; BORDAGES COMPANY; ROBERT F. FORD,
Plaintiffs-Appellants,
v.
AIR PRODUCTS, L.P.,
Defendant-Appellee.
Appeals from the United States District Court
for the Eastern District of Texas
1:04-cv-128-mac
Before SMITH, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Plaintiffs-Appellants P. Bordages-Account B, L.P.; Bordages
Company; and Robert F. Ford (collectively, “Appellants”) appeal
the district court’s grant of partial summary judgment in favor
of Defendant-Appellee Air Products, L.P.1 and the court’s denial
*
Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
1
Air Products’ motion for partial summary judgment did not
address the issue of whether Air Products had the right to
operate a pipeline on another piece of land owned by Plaintiff-
Appellant Ford. The parties settled their dispute with regard to
that issue, and the district court entered final judgment in
favor of Air Products.
1
of Appellants’ motion for summary judgment. Appellants own
pieces of land burdened by pipeline easements. Air Products is
the current owner of the easements and operator of the pipelines.
The easements allow 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.”
(Emphasis added). Air Products transports hydrogen through the
pipelines. The main issue in this case is whether the language
“gas” and “other . . . gases” includes hydrogen.
In C&E Land Co. v. Air Products LP, 401 F.3d 602 (5th Cir.
2005), we decided this precise question in the affirmative. The
language in the pipeline easements in C&E Land was identical to
the language of the easements in this case. Id. at 603. There,
we held that “the language of the easement . . . unambiguously
allows Air Products to transport hydrogen,” because the plain
meaning of “gas” and “other . . . gases” includes hydrogen. Id.
C&E Land controls this case. Accordingly, we hold that the
easement allows for the transportation of hydrogen.
Appellants also argue that their motion for summary judgment
should have been granted because they own the surface fee title
to the pipeline strips. Appellants cite Davidson v. Gelling, 263
S.W.2d 940 (Tex. 1954), and, without more, state that “judgment
should be entered in accordance with Davidson.” It is not clear
how Davidson supports Appellants’ case, however, nor have
2
Appellants provided us with any explanation. In short,
Appellants’ briefing of this issue is insufficient. Therefore,
they have waived this argument. See FED. R. APP. P. 28(a)(9)(A).
For the foregoing reasons, we AFFIRM the judgment of the
district court granting partial summary judgment in favor of Air
Products and denying Appellants’ motion for summary judgment.
AFFIRMED.
3