can cancel at its whim now if there's any ambiguity at all whether they are pretty ill or personal as summary judgment was inappropriate as we believe it was the controlling case in this circuit is totality decided last year involving louisiana law or the gas provisions but involving property issues and this court reversed a summary judgment that a trial court had found a contract to be on ambiguous it was a two page contract in this case here we have a one page contract in totality as dennis writing for the majority held when there was more than one reasonable interpretation of a contract that it's ambiguous as a matter of law and summary judgment in appropriate and as frank has pointed out there not exhibit number of a is the blueprint and it shows a road crossing it doesn't show crossing it doesn't show access it shows road also written in black and that black is only original so the three possible directions one is that the crossing is a pretty well serve d to that the fencing requirement requires a different contractual interpretation is not a serve and the third the most strained is at the addition of the words successors and assigns to a drainage provision separately in the same sentence but separately set apart with different adjectives and different than animals and different verbs somehow changes the crossing servitude into personal servitude mandates that prevail servitude is our favored and louisiana courts upheld time and time again you don't need successors in the science language to create a pre filled servitude indeed the lead cases burgas as the case that the trial court but even though it's presumed to be a party of servitude if you have the language of the wives in the contract it would detract from the at you would consider that when you when you have to consider all the language in the entire contract where you have to go more than that your o succeed no more on contract actually there's no direct evidence as to the reason for it but the reilley plaid shows what happened was a red river mood and the old tracks run to water so they had to move them now to prove that tr about the movement of the red river the need to move the railroad number two farmers in the area at the time who testified about the use of crossings over the railroad in the use of it for the period of time number three abstract prove similar language and other contracts at the time around not merely this real rule but around the area because remember custom and usage becomes an issue that's the henry case so i think there's lots of evidence that we put on at trot about that  and one of his earlier opinion judge tank said the railroad evidence showed the railroad permitted these people to make the crossing was there really any evidence of that in the previous but that then sashayed that case is not before you know it was a possessory action about who possessed it or not but i will tell you that this court's opinion in the frank's case talked about about approach by  dirt road and seven and years of uninterrupted usage so there is lots of evidence that that crossing had been you that they're going to say what doesn't prove who used the point is there is evidence that that it was used and that that you determine the contracting parties by looking at the practical and economic realities of the time and it's costly that goes to your question we're able to put on evidence of what happened that time to historians that were able to put on evidence at the trial of similar lots of them out there and that's the evidence we would put on a trial what meaning do you give to the successors in the signs language that that modified the drainage provisionary chinese d n a you say that that was meant to prevent the possibility of prescription louisiana law you don't need successes in the sun as it always is but in the one nine hundred twenty three as we showed in our brief there was some real concern as to whether your rights of drainage could be lost ok there was some uncertainty in the jurisprudence so it was natural that you would put that there in addition there was flux in the cases and we showed in our brief about what was a pretty limp person servitude in one thousand twenty three and it was a lot of litigation about about fencing including railroads obligations to things and statutes that said they didn't have to what happened cattle got killed so what i think the parties were doing although there's no evidence of this and i think we're going to talk about that but at the trial but i think they were doing was they were trying to use a build suspenders approach it doesn't by its nature change that and if you said it did then you have to say that the nineteen zero two servitude was pretty old and the somehow the parties changed their mom and did it through this weird way changing one cause in a sense it had nothing to do with the line we specifically about across so i think it increases ambiguity not decreases it you know it just seems to me the way you read the clause would be would be  servitude take it out and then they said alternatively by the way if it's not a personal service to it's a pretty servitude but let's limit it to agricultural purposes in other words in the same pleading in their summary judgment they said it's pretty lame personal because they wanted to limit it to agricultural use they conceded in that summary judgment that it was by nature and big otherwise it would have had the alternative forms of relief one seeking a personal certitude training and crossing just like here and the district court and the you pieces on a no that was it was a landlocked place and they use it by selectively quoting language from the plaintiff's allegation but the defense alleges it wasn't landlocked you read the case you need the railroad says it wasn't laid off and the court doesn't go off on the landlocked articles what do they do they quote the law changed d l is t t h t e d and they say the right followed the property it was not personal to the because of the deed the opinion below your mother cannot be squared with this court's ruling until tell if there is any ambiguity if you read one way or another then you must reverse for a trial it can't be squared with taylor it certainly can't be squared with burgess and let me ask you this yes you're on route to give any effect to the successor going to sign outside the scope of the record but clearly the parties the railroad doesn't like them and the landowners love them ok and that's all that the record reflects that i could give you lots of things outside of the record but i don't think that's appropriate for a transfer a movable property be read and interpreted from the face of the instrument that's pretty black letter law quoting from beard versus nonna nine hundred thirty one louisiana supreme court case there would be no security whatsoever for purchasers of real estate if they were not entitled to a law on the title deeds to such property as being exactly what they purport to be and in this case all union pacific gas is that the court read the deed the same way the fence at its own expense and shall provide three crossings across the points indicated on the blueprint and made part of and that said texas pacific railway hereby binds itself its successors and its assigns to furnish proper drainage outlets across the land here and beyond conveyed if i were to give this very small paragraph as carville one page contract to any english student i believe that english did it would come up with the same reading that union pacific has come up and see that it's a personal for to you get my hand here this agricultural land has been owned by this family it's obviously crossing two word to favor the land not named individual i would disagree i would be my first impression you're reading it so i don't understand why it's so unambiguous well the district court went down that path and looked at all the cases and looked at the idea that you know of a servitude order to be pretty and has to benefit the land and the first to do it your court said there are some cases that would argue in favor of the crossing being a to read this contract the court had to buy its use contract principles and servitude principles and you start with the plain meaning of the contract and you give each word its generally prevailing meaning and you try not to leave any surplusage and what the court  up saying is that all those cases were distinguishable franks did not set forth one case where where one type of obligation was treated one way and another type of obligation in the same sentence was clearly treated another way and what the court decided is that the parties intent based on the words that they chose including the fact that you mr levy here is an attorney and has served as an attorney for his family in this case they knew what they meant they said what they meant to go and look is no express intent about free will or not pretty old person or not that if you read those first two clauses you would go to the civil code and civil code says that if there's a benefit to the land and it's not expressed in the contract then you can presume that it's pretty but it is expressed we have an express contract here that you can't ignore so yes could you argue that absent this last clause that it could be implied that it's pretty old but even though it does not turn article says it is presumed but you start with the idea of whether or not it's expressed in a contract and here it's expressed in the contract you want to think about it is that frank's want you to think that pretty all servitude are every crossing that long as they were feeling that someone or perhaps truck you know transferred it to somebody else who wanted to use it for that purpose we suggested this was a bargain for a contract the jackson pacific paid five times more money for this contract and they paid one thousand or two some of the leavings ladies that weren't as part of this contract were living in another country it's not clear to me from this contract that that the ladies knew these crossings or that they contracted for them the contract language says what it says texas and pacific agreed to build crossings not texas based on pacific and its successors in the sign so taking it out of who is obligated who's going to get the crossings but leading into who's going to provide them texas a says pacific is going to provide them texas and the city is going to provide census but texas and pacific other successors of the signs are going to provide drainage and it showed that these parties in this case in this one page agreement knew what it that is parish verses has a policy from eight hundred fifty three further service he's claimed other titles like here never are can never be sustained by implication and that's what's happening here franks wants to by what they believe people needed and wanted back and oh by the way there's no evidence and that's what judge dad all tamale ruled there's a whole lot of talk about all these different things that were going on maybe there were only two affidavits and they were basically land men who said i want  documents you know we've heard a lot this morning about what franks might want to argue if they go to trial perhaps they could get other people to talk about crossings they could have done those things in opposition to his motion for summary judgment that in come up with a bunch of historians to saying crossings were really important this is for the land because of these really important reasons if you look at the bar god case that we kept talking about the court found that it was for the land that there was room for planting and growing vegetables i don't i don't recall exactly but the idea being somebody put forth proof that there was a benefit to the land and of course we can all sit here and presume the crossings are for the benefit of the land but rather exempt or into crawford all the time that are frankly personal just because it's across the railroad or passage does not mean that it's pretty well servitude that's what the contract of the parties is for and here the contract to the parties says what it says and we believe that it's not ambiguous there is nothing ambiguous in the us about what it says  and by the way that's what frank's originally said franks according to judge jack says this is an ambiguous but they still want to look outside the contract and the judge rejected that view and we rejected if you and your friends made a host of new arguments to this court including some differences between the revise of the code and today civil code all of that but when it comes down to it you know we're going to talk about the turnstile case and what it meant about ambiguity you know contract ambiguity has to be ambiguous from its face and there's nothing in the us here from its case but further than that franks would have you believe that it's ambiguous summary judgment denied however if you look at civil law cases on servitude ambiguity if you look at the palm that case parliament versus  contract trying to do not providing that it was not long sure i mean it you know it is it's a balancing act to total recall seem to go both ways you got seven thirty saying dowd is resolved against it and then you also maybe say that it's presumed if there's a benefit to the land but here they don't even work to a benefit to the land they're certainly not any evidence to the benefit of the land maybe they can stand up here today and say how great crossings are and how important was at the time there is nothing in the record about that you know what we have you know is our agreement and when you have the agreement and it's not a big you as the madonna has to be resolved against restraining our property you know crushing for a land owner to get it when it's not just a matter of common sense a benefit to the land no if there were some see how you might think it was a benefit to the landowner at the same time if it was so important to them they couldn't put it in this contract is there som ancillary belief that it's good to be able to cross where you would like to cross that's what this case is all about  already have multiple public crossings from all different sides but they want these crossings so yes it's i would say that's a matter of convenience which the current also says if it's simply a matter of convenience then it's not a trivial servitude there's no evidence here that the levy's were landlocked and so if it's not express only if it's not expressed would you go outside of the contract and then start to go towards these presumptions let's talk for one minute about the taylor case that has been sent talked about procreation of property and the later landowner wanted the crossings and wanted certain drainage rights the court ended up holding that regardless of that particular contract it was owed because it was all  under the circumstances where you have the same julian taking and like you said somebody would like to be able to get to their property and in that case it appeared that the property was landlocked so you know we have a case here where there is no evidence that they were and landlocked the parties were sophisticated mr levy is an attorney they knew had a contract if it contracting for drainage was so important to say that it it went to their successors and assigns then the same could be said for how as your honor stated they could have said  pacific and their successors and signs will do all of these things but they didn't choose that language and so we're left here today ninety years later guessing about what these people meant and that's the point that's the problem to sit here and guess about texas and pacific were related to a different portion of property twenty years earlier it's not the same it's not the same contract it's the same parties it's not the same subject matter but more than that it's going outside of the document on the documents not ambiguous there's nothing you know there's nothing hidden about what we believe this contract is not ambiguous we move for alternatives released related to restricting the use of the crossing because what was an agricultural crossing is now being used for long as exploration which creates a danger for union pacific and that is why we move for alternative relief but has nothing to do with the fact that this contract on its face is and is not ambiguous and moreover frankston even argue that it was below another coming with these three different interpretations those interpretations were not urged to judge to add those interpretations were not urged to the magistrate the magistrate ruled on the motion to dismiss judge dad was kind enough to give frank the second bite of the apple and let them come back and do discovery we did all that and discovery showed nothing so then judge jack took a took took a second look at it we filed a motion for summary judgment on basically the same premises frank's opposes the motion on the same premises and then the judge because if it were silent you could say it's not express one way or the other so let me look further into the code articles that say if it's not expire ass and there is a benefit for the land then it's presumed to be pretty real but here because it is expressed you just don't get that far so both the magistrate judge and the district court judge said ok fine if you stop here ok i see where you're going with this it would be akin to these other cases where you find a pretty old servitude but given the contract construction articles you just can't get there because at the end of the day to give meaning and right to this deed which is you know file directory of court and catherine parish nine hundred twenty three you've got to give meaning to what these parties you know the language that they chose so that the next person can come up and pick up that didn't know what it means and i believe that the way we read it is the way that you know any regular person would read it it takes a very tortured distorted roundabout way to sit there and say well if you presume a benefit to the land and you do this and then you do that and then you look two which by the way isn't that really clear anyway then you throw all those things together and it must've been pretty you know in this case mr levy a lawyer and his entire family negotiated the railroad for was what was a pretty big sum far  railroad servitude at that time at that time or it services were often a dollar this was three thousand dollars the equivalent of some fifty thousand dollars today or more so they bargained for this this was not an expert relation it was not a case of the reward coming in and making a taking this was a bargain for agreement for a pretty substantial sum of money that these individuals came and this is what they agreed to and so you can only presume that they met with they said and to go beyond what they meant what they said is to you know to just  cast aside our system of authentic acts not only contracting right on their face but authentic acts deeds that fall the rest of the course of that there is some certainty all these years later about what those things mean if there are no other question know their summary judgement they in fact prove the case they also make a strange order they made it in footnote one ten of their of their breathing i make it again here that well they got paid five times as much in hundred twenty three so they got less than they had in one thousand and two that didn't make any sense to me and it doesn't make any sense to me now if one thousand and two is a preview of servitude which i think we have to concede it was then somehow they bargain for less by getting five times as much money in one nine hundred twenty three it just doesn't make any sense at all the article seven thirty we briefed that i think the word existence in fact changes it and we've commented on that but in any event in question judge davis us about crossbows as we said in one thousand twenty three crossing was a mile long over a mile long there's a pretty good reason why people don't want to have to go out to that road to go back around to the other side of the their property the other thing you'd have to conclu reach that conclusion here are when it comes time to look at this contract who cannot ignore totec there is more than one reasonable interpretation there is more than one way to read this contract and you can ignore a plaque that says road crossings not just access and you can't buy the way nor the nineteen thirteen d there is no evidence that these are different tracts of land but even if there weren't hotels as it's the servitude because they get paid five times as much your honor there is ambiguity here so tao is controlling taylor is controlling the court decision below should be reversed and we should go to a full trial thank you