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
 
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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 79, 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

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