IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-31107

CYNTHIA SUE MARY; PAUL’S LAND COMPANY, L.L.C.,

Plaintiffs - Appellants,

v. 

QEP ENERGY COMPANY, formerly known as Questar Exploration & 

Production Company,

Defendant - Appellee.

Appeal from the United States District Court 

for the Western District of Louisiana

USDC No. 5:13-CV-2195

Before SOUTHWICK, WILLETT, and OLDHAM, Circuit Judges.

PER CURIAM:*

Plaintiffs claim that defendant’s oil and gas pipelines unlawfully extend 

onto Plaintiffs’ property. They seek the profits derived from those pipelines. 

The district court held Plaintiffs had not demonstrated that the energy 

company acted in bad faith—a pre-requisite to the right of disgorgement under 

Louisiana law—and dismissed the claim. We conclude the district court 

applied the wrong legal standard. So we reverse and remand.

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

September 20, 2019

Lyle W. Cayce

Clerk

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No. 18-31107

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I.

Between 2006 and 2011, Defendant QEP Energy Company (“QEP”) 

entered into various agreements with Plaintiffs to explore for, extract, and 

transport oil and gas on Plaintiffs’ 160-acre property.1 One of these

agreements, the October 2011 Pipeline Servitude Agreement,2 permitted QEP 

to connect pipelines beyond Plaintiffs’ property to pipelines on the property. 

But one of QEP’s pipelines extended beyond the servitude by 31 feet, and 

another by 15 feet. 

Plaintiffs sued QEP in state court, claiming QEP made these deviations 

in bad faith. Plaintiffs sought disgorgement of QEP’s profits or an order 

permitting them to remove the pipelines. QEP removed the case to the federal

district court, which granted partial summary judgment to QEP. After the 

remaining claims were dismissed with prejudice, Plaintiffs appealed the grant 

of summary judgment. 

II.

“We review de novo a summary judgment, applying the same standard 

as the district court.” Lamb v. Ashford Place Apartments L.L.C., 914 F.3d 940, 

943 (5th Cir. 2019) (quotation marks and ellipsis omitted). Because this 

diversity case raises issues of Louisiana law, we make an “Erie guess” as to 

how the Louisiana Supreme Court would rule, if it has not already ruled on 

the issues. Gulf & Miss. River Transp. Co., Ltd. v. BP Oil Pipeline Co., 730 

F.3d 484, 488 (5th Cir. 2013).

 

1 The first agreement, in 2006, was signed by Whitmar Exploration Company 

(“Whitmar”), rather than QEP. Whitmar assigned its rights under that agreement to QEP 

in 2007. 

2 A servitude is the same as a common law easement. Morein v. Acme Land Co., 2016-

95, 2016 WL 10822278, at *4 (La. App. 3 Cir. 7/6/16) (citing Humble Pipe Line Co. v. Wm. T. 

Burton Indus., Inc., 217 So.2d 188 (La. 1968)).

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Both sides agree that Plaintiffs’ claim turns on Louisiana Civil Code 

Article 486. That Article provides:

A possessor in good faith acquires the ownership of fruits he has 

gathered. If he is evicted by the owner, he is entitled to 

reimbursement of expenses for fruits he was unable to gather.

A possessor in bad faith is bound to restore to the owner the fruits 

he has gathered, or their value, subject to his claim for 

reimbursement of expenses.

La. Civ. Code art. 486. The parties disagree, however, on the legal standard 

for finding “good faith,” as that term is used in Article 486. 

The parties point to two potential statutory solutions to their 

disagreement: Article 487 and Article 670 of the Civil Code. The district court 

chose the latter. We first explain why that is wrong. Then we explain why 

Article 487 is right.

A.

The district court held that Article 670 supplies the legal rule for finding 

good faith in this dispute. Article 670 provides:

When a landowner constructs in good faith a building that 

encroaches on an adjacent estate and the owner of that estate does 

not complain within a reasonable time after he knew or should 

have known of the encroachment, or in any event complains only 

after the construction is substantially completed the court may 

allow the building to remain.

La. Civ. Code art. 670 (emphasis added). By its terms, the Article applies only

to the construction of a building by a landowner. Under Louisiana law, a 

servitude holder (like QEP) is not a “landowner.” See Creel v. S. Nat. Gas Co., 

2003-1761, 917 So.2d 491, 500 (La. App. 1 Cir. 10/14/05). And a pipeline is not 

a “building”—not in the ordinary sense of the word, and not as it is used in 

Article 670. See 4 A.N. YIANNOPOULOS & RONALD J. SCALISE, LOUISIANA CIVIL 

LAW TREATISE, PREDIAL SERVITUDES § 2:10 (4th ed. 2018) [hereinafter 

YIANNOPOULOS ON SERVITUDES]; Serhan v. Jeane, 2016-110, --- So.3d ---, 2016 

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WL 6301281, at *5 (La. App. 3 Cir. 9/28/16) (refusing to apply Article 670 to an 

encroaching driveway “as it was not a building”); Lakeside Nat’l Bank of Lake 

Charles v. Moreaux, 576 So.2d 1094, 1096 (La. App. 3d Cir. 1991) (forms of 

construction other than buildings only fall within the scope of Article 670 if 

they are “component parts of [a] building”).

In reaching the contrary conclusion, the district court relied primarily on 

one of its own earlier decisions—SGC Land, LLC v. La. Midstream Gas Servs., 

939 F. Supp. 2d 612 (W.D. La. 2013). SGC held that a pipeline was a building. 

See id. at 620. That erroneous holding currently binds only the parties to that 

case. It should stay that way. See YIANNOPOULOS ON SERVITUDES § 2:10 n.40 

(citing the decision below and SGC as “clear examples of unwarranted 

extensions of article 670”).3

B.

In our view, the meaning of “good faith” in Article 486 comes from the 

Article that immediately succeeds it—namely, Article 487. The latter provides:

For purposes of accession, a possessor is in good faith when he 

possesses by virtue of an act translative of ownership and does not 

know of any defects in his ownership. He ceases to be in good faith 

when these defects are made known to him or an action is 

instituted against him by the owner for the recovery of the thing.

La. Civ. Code. art. 487.

In our view, this dispute involves an “accession” under Article 487. For 

the most part, Louisiana law designates “material or intangible objects that 

are susceptible of appropriation” as “things.” 2 A.N. YIANNOPOULOS & RONALD 

J. SCALISE, LOUISIANA CIVIL LAW TREATISE, PROPERTY §§ 2:1, 2:4 (5th ed. 2019) 

[hereinafter YIANNOPOULOS ON PROPERTY]. Land is a “thing.” See

 

3 The district court also relied on the equitable power afforded courts under Louisiana 

Civil Code Article 4. But Article 4 is engaged only “[w]hen no rule for a particular situation 

can be derived from legislation or custom.” La. Civ. Code art. 4. As explained in the next 

section, Article 487 provides the rule in this case, so Article 4 does not apply.

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YIANNOPOULOS ON PROPERTY § 7:8. And ownership of a “thing” confers on the 

owner “the ownership of everything that [the thing] produces or is united with 

it, either naturally or artificially.” La. Civ. Code art. 482. These secondary 

“things” are known as “accessories.” Id. at cmt. (b). And the right of ownership 

over a thing by virtue of it being an accessory is known as “accession.” See La. 

Civ. Code art. 482. An owner is entitled to profits from a “thing” because profits

are a type of accessory known as “fruits.” See Aertker v. Placid Holding Co., 

No. 07-473, 2012 WL 4472002, at *6 (M.D. La. Sept. 27, 2012) (citing

Rosenthal-Brown Fur Co. v. Jones-Frere Fur Co., 110 So. 630, 633 (La. 1926)); 

YIANNOPOULOS ON PROPERTY § 2:26. To put it another way, “fruits derived 

from a thing . . . belong to the owner of the thing by accession.” YIANNOPOULOS 

ON PROPERTY § 11:17. 

Here, the parties are fighting over the fruits (profits) of a thing (land) in 

which the pipelines are located. These profits accrue to the owner of the land 

because they are accessories of the land itself. In other words, they accrue by 

accession. Article 486 tells us that those profits belong to “[a] possessor in good 

faith.” And, because accession is involved, Article 487 supplies the relevant 

definition of good faith. See Aertker, 2012 WL 4472002, at *3 (applying Article 

487 to assess the good faith of the owner of a pipeline that extended onto 

plaintiff’s land). 

* * *

The district court’s grant of summary judgment to QEP is REVERSED, 

and the case is REMANDED for further proceedings consistent with this 

opinion. 

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