Judging from the Wrong Side of the Tracks: Louisiana's Theory of Quasi-possession and Franks Investment Company L.L.C. v. Union Pacific Railroad Company

• Author: Anna Scardulla
• Position: J.D./D.C.L., 2014, Paul M. Hebert Law Center, Louisiana State University
• Pages: 255-288

Judging from the Wrong Side of the Tracks:

Louisiana’s Theory of Quasi-possession and Franks

Investment Company L.L.C. v. Union Pacific Railroad

Company

INTRODUCTION

Imagine that after more than 70 years of using something,

someone destroyed it and stripped it from your possession

overnight. Now picture being denied compensation because a court

was unfamiliar with the relevant law that could provide a remedy.

Nothing seems more frustrating, yet this is exactly what occurred in

Franks Investment Co. v. Union Pacific Railroad Co.1 Despite the

United States Court of Appeals for the Fifth Circuit recently

affirming the decision,2 Franks is poor precedent for future

Louisiana quasi-possession jurisprudence because it strictly applied

the law of possession to a pure quasi-possession case.3

Franks arose in the context of a nationwide dispute as old and

familiar as that between the wild Bo Duke and the stiff county

commissioner, Boss Hogg.4 For decades, railroad companies

provided and maintained a number of private railroad crossings for

farmers, allowing farmers convenient access to and from their land.5

The railroad companies developed these crossways, mostly as a

courtesy for farmers who granted the railroads a right-of-way for

them to lay their rail lines across rural property.6 After years of

allowing farmers passage, however, one railroad—Union Pacific

Railroad Company—folded to economic pressures and opted to

Copyright 2013, by ANNA SCARDULLA.

1. Franks Inv. Co. v. Union Pac. R.R. Co., No. 08-0097, 2011 W L 6157484, at

*1 (W.D. La. June 14, 2011), aff’d, 464 F. App’x 415 (5th Cir. 2012). Because of the

procedural complexity of this case, a number of footnotes will reference cases

entitled “Franks Investment Co. v. Union Pacific Railroad Co.” For clarification

purposes, when discussed in the body of this Comment, the term “Franks” refers to

the juridical person, Franks Investment Company. When italicized, the term

“Franks” refers to the district level case referenced in this footnote.

2. Franks Inv. Co. v. Union Pac. R.R. Co., 464 F. App’x 415 (5th Cir. 2012).

3. Louisiana Civil Code article 3421 defines quasi-possession as “[t]he

exercise of a real right, such as a servitude, with the intent to have it as one’s own

. . . .” LA. CIV. CODE art. 3421 (2013).

4. See generally Dukes of Hazzard (CBS television broadcast).

5. For a discussion of claims based on similar factual backgrounds to those

relevant to this Comment, see generally Franks, 2011 WL 6157484; Faulk v.

Union Pac. R.R. Co., 449 F. App’x 357 (5th Cir. 2011); Seber v. Union Pac. R.R.

Co., 350 S.W.3d 640 (Tex. App. 2011).

6. See generally Franks, 2011 WL 6157484; Faulk, 449 F. App’x 357;

Seber, 350 S.W.3d 640.

256 LOUISIANA LAW REVIEW [Vol. 74

close some of its private railroad crossings across the country in

2005.7

Having lost their ability to conveniently pass from one side of

their land to the other, farmers are looking to sue.8 A farmer’s ability

and avenue through which to sue the railroad can vary;9 however,

7. Brief for Appellee at 7−9, Franks Inv. Co. v. Union Pac. R.R. Co., 464 F.

App’x 415 (5th Cir. 2012) (No. 11-30632). Union Pacific contended:

[C]rossings impose maintenance burdens on the railroad that far exceed

the maintenance required at areas of track without a crossing, costing the

railroad an estimated $800.00 per square foot for installation and

maintenance . . . . In the past fifteen years or so, federal policy has

encouraged railroads to reduce the number of private crossings in order

to improve public safety and enhance interstate rail transportation. The

Federal Railroad Administration has promulgated policies encouraging

railroads to close redundant and dangerous crossings. Union Pacific

therefore began analyzing the quality, safety, and number of crossings on

its tracks and identified crossings it belie ved should be closed.

Id. (citation omitted). However, in 2008, the Louisiana Legislature passed a law

that requires railroad companies to obtain permission from the Louisiana Public

Service Commission before closing or removing a private railroad crossing. LA.

REV. STAT. ANN. § 48:394 (2004). For closure, railroad companies must meet the

high burden of showing that the private crossing “unreasonably burdens or

substantially interferes with rail transportation.” Id. Attempting to avoid these

stringent procedural limitations, railroads have challenged section 48:394 on

constitutional grounds. See Faulk, 449 F. App’x 357 (staying the constitutional

question until ownership issues were settled between parties), on remand to No.

07-0554, 2013 WL 1193069 (W.D. La. Mar. 22, 2013).

8. For a discussion of claims based on similar factual backgrounds to those

relevant to this Comment, see generally Franks, 2011 WL 6157484; Faulk, 449 F.

App’x 357; Seber, 350 S.W.3d 640.

9. A farmer’s ability and avenue through which to sue the railroad is often

dependent on two things: (1) whether the right-of-way agreement originally

entered into between the parties consisted of transferring full ownership of the

land beneath the rail lines to the railroad or merely consisted of granting a right of

use in favor of the railroad on the farmer’s property, and (2) whether the right-of-

way agreement explicitly obligates the railroad to provide and maintain the

crossways. The following diagram is illustrative:

2013] COMMENT 257

If . . . And . . . Then . . .

Variation 1 the righ

t

-o

f

-

way agreement

transferred full

ownership of

land

underneath the

rail lines to the

railroad

the righ

t

-o

f

-way

agreement explicitly

burdens the railroad

with providing and

maintaining the

crossways,

a farmer can bring a

Louisiana petitory

action, asserti ng full

ownership of a

servitude in the

crossways; even so, it

is customary to br ing

a Louisiana

possessory action

first, asserting the

quasi-possession of a

servitude of passage

in the crosswa

y

s.

Variation 2 the righ

t

-o

f

-

way agreement

transferred full

ownership of

land

underneath the

rail lines to the

railroad

the righ

t

-o

f

-way

agreement does not

burden the railroad

with any affirmative

or negative duti es

relative to the

crossways,

a farmer can only

bring a Louisia na

possessory action,

asserting the quasi-

possession of a

servitude of passage

in the crossways.

Variation 3 the righ

t

-o

f

-

way agreement

grants the

railroad a right-

of-use servitude

across the

farmer’s

property

the righ

t

-o

f

-way

agreement explicitly

burdens the railroad

with providing and

maintaining the

crossways,

a farmer can bring a

breach of contract

action against the

railroad; even so,

alternative remedies

may be available.

Variation 4 the righ

t

-o

f

-

way agreement

grants the

railroad a right-

of-use servitude

across the

farmer’s

property

the righ

t

-o

f

-way

agreement does not

burden the railroad

with any affirmative

or negative duti es

relative to the

crossways,

a farmer has no

petitory, possessory,

or breach of contract

claims available; even

so, alternative

remedies may be

available.

See generally A.N. YIANNOPOULOS, PROPERTY § 256–79, in 2 LOUISIANA CIVIL

LAW TREATISE 515–58 (4th ed. 2001) (discussing the facets of the petitory action

generally); Id. § 332–43, at 650–81 (discussing the facets of the possessory action

generally); A.N. YIANNOPOULOS, PREDIAL SERVITUDES § 176, in 4 LOUISIANA

CIVIL LAW TREATISE 476–79 (3d ed. 2004) (discussing the petitory action in

relation to protecting the right of a servitude specifically); YIANNOPOULOS, supra,

PROPERTY § 332–43, at 650–81 (discussing the facets of the possessory action

generally); YIANNOPOULOS, supra, PREDIAL SERVITUDES § 177, at 480 (discussing