IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30043

KLING REALTY COMPANY INC; WALET PLANTING CO.

Plaintiffs-Appellants

v.

CHEVRON USA INC., individually and as successor in interest, formerly

doing business as Texaco Inc., formerly doing business as Texaco Exploration

and Production Inc

Defendant-Appellee

Appeal from the United States District Court 

for the Western District of Louisiana

Before HIGGINBOTHAM, BENAVIDES, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

The original opinion in this case was issued by the panel on December 17,

2008. Kling Realty Co. Inc. v. Chevron USA Inc., 306 F. App’x 24 (5th Cir. 2008).

A petition for rehearing is currently pending before this panel. The petition for

panel rehearing is granted to the extent that we VACATE our previous opinion

and replace it with the following opinion. In all other respects, the petition for

panel rehearing is DENIED.

This case involves the contamination of land by oil and gas exploration

over several decades during the twentieth century. Plaintiffs-Appellants Kling

Realty Co. and Walet Planting Co. (together, “Kling/Walet”) sued DefendantUnited States Court of Appeals

Fifth Circuit

F I L E D

July 10, 2009

Charles R. Fulbruge III

Clerk
No. 08-30043

 Two other wells were abandoned as dry holes. The third, drilled by an entity 1

unrelated to Chevron, was also a dry hole.

2

Appellee Chevron USA Inc. (“Chevron”), successor in interest to Texaco, and two

other defendants in state court. Chevron removed to federal court, alleging

improper joinder of non-diverse defendants. The district court dismissed the

non-diverse defendants, and denied Kling/Walet’s motion to remand. The

district court dismissed all claims with prejudice, holding that they were barred

by prescription and dismissed as moot Kling/Walet’s motion for leave to add a

non-diverse party. We AFFIRM the judgment.

BACKGROUND

Kling/Walet’s claims are rooted in the contamination of their property in

Iberia Parish, allegedly caused by Chevron’s predecessor (Texaco) while it was

engaged in the exploration and production of oil and gas. Kling/Walet and

Chevron were parties to an oil and gas lease relating to the property, which

terminated, at the latest calculation, in August 1974. Four wells were

established on the Kling/Walet property, the claims in this case relate to Well

No. 6 (“Well”), the only well that was productive for Chevron. The Well was 1

plugged and abandoned in October 1971.

Kling/Walet have used the property for sugar cane farming since the

1970s. At the time that they began farming, Kling/Walet were concerned that

crops would not grow on a small piece of their property. After bringing their

concerns to Chevron, Kling/Walet entered into a release of claims associated

with the Well and any pit, tank battery, or other piece of equipment associated

with the Well (the “1973 Release”), for consideration of approximately $4,000.

It is undisputed that Chevron’s activities on the property ended no later than

1974. 

Kling/Walet filed this action in June 2006 in Louisiana state court.

Kling/Walet sought to recover compensatory and punitive damages from
No. 08-30043

 While that motion was pending, Kling/Walet moved in August 2007 for leave to amend

2

their petition to add a non-diverse defendant, M&C Contractors, Inc. (“M&C”). The court

denied the motion as moot when it held the underlying claims had prescribed. In light of our

holding on the issue of prescription, we affirm the district court’s judgment as to M&C as well.

3

Chevron, Estis Well Service, LLC (“Estis”), and Jack P. Martin, Sr. (“Martin”)

(collectively, “Defendants”) for contamination of their property located in Iberia

Parish, Louisiana. Kling/Walet are citizens of Louisiana, as are Estis and

Martin. Chevron is not. Kling/Walet allege that they are lessors, assigns, and/or

successors in interest to certain oil, gas, and mineral leases with Chevron.

Kling/Walet alleged that Defendants conducted and/or participated in various

oil and gas exploration and production activities on land including their

property, causing ongoing property damage and various forms of emotional

distress. 

In August 2006, Chevron filed a notice of removal. In October 2006,

Kling/Walet responded with a motion to remand to state court. In January 2007,

the district court entered a Memorandum Ruling and Order, concluding that

non-diverse Defendants Estis and Martin had been improperly joined,

dismissing the claims against them, concluding that diversity jurisdiction was

proper, and denying the motion to remand.

In May 2007, Chevron filed a motion for partial summary judgment,

arguing, among other bases, that Kling/Walet’s claims had prescribed. In 2

December 2007, the district court granted Chevron summary judgment on the

issue of prescription for all claims and denied as moot Kling/Walet’s motion for

leave to amend. Kling/Walet appeal. 

DISCUSSION

I. Diversity Jurisdiction

A determination that a party is improperly joined and the denial of a

motion for remand to state court are questions of law reviewed de novo.
No. 08-30043

 Other than a one-sentence relief request, Kling/Walet make no argument that Estis 3

was properly joined. Therefore the issue of Estis’s dismissal is waived. See, e.g., Edmond v.

Collins, 8 F.3d 290, 292 n.5 (5th Cir. 1993) (“On appeal, we do not review issues not briefed.”).

 Chevron does not argue that the first prong is applicable. 4

4

McDonal v. Abbot Labs., 408 F.3d 177, 182 (5th Cir. 2005). However, this court

reviews a district court’s procedure for determining improper joinder only for

abuse of discretion. Guillory v. PPG Indus., Inc., 434 F.3d 303, 309-10 (5th Cir.

2005). 

Kling/Walet argue that the district court erred by piercing the pleadings

and dismissing Martin because neither party presented summary judgment-type

evidence related to whether they had any possibility of prevailing against

Martin, and Chevron therefore did not meet its burden to show improper

joinder. Chevron argues that Martin was properly dismissed because, 3

Kling/Walet’s petition fails to state a claim against Martin under Louisiana law.

Chevron further points to the absence of allegations or evidence presented by

Kling/Walet to show how Martin was connected to their property such that he

faced any liability for the alleged contamination.

There are two bases on which the district court might determine that a

plaintiff improperly joined a non-diverse defendant to defeat subject matter

jurisdiction: “(1) actual fraud in the plaintiff’s pleading of jurisdictional facts, or

(2) inability to establish a cause of action.” Campbell v. Stone Ins., Inc., 509 F.3d

665, 669 (5th Cir. 2007). Under the second prong, the test “is whether the 4

defendant has demonstrated that there is no possibility of recovery by the

plaintiff against an in-state defendant, which stated differently means that there

is no reasonable basis for the district court to predict that the plaintiff might be

able to recover against an in-state defendant.” Smallwood v. Ill. Cent. R.R. Co.,

385 F.3d 568, 573 (5th Cir. 2004) (en banc). “This means that there must be a

reasonable possibility of recovery, not merely a theoretical one.” Campbell, 509
No. 08-30043

5

F.3d at 669 (quoting Ross v. Citifinancial, Inc., 344 F.3d 458, 462 (5th Cir.

2003)). The burden of persuasion on a party claiming improper joinder is a

“heavy one.” Id. 

The district court concluded that Kling/Walet failed to state a claim

against Martin, relying largely on Canter v. Koehring, 383 So. 2d 716 (La. 1973),

and Ford v. Elsbury, 32 F.3d 931, 936 (5th Cir. 1994) (discussing liability of a

supervisor-employee under Louisiana law and applying Canter). In Canter, the

Louisiana Supreme Court held that an employee could only be held personally

liable for injuries to third persons where: (1) the employer owed a duty of care

to the third person, breach of which caused the damage for which recovery is

sought; (2) that duty was delegated by the employer to the defendant; (3) the

defendant employee breached his duty through personal (not technical or

vicarious) fault; and (4) the employee had a personal duty toward the injured

third party, the breach of which specifically caused the third party’s damages.

Canter, 283 So. 2d at 721. Further, with regard to the accused employee’s

personal fault, personal liability cannot be imposed upon the employee simply

because of his general administrative responsibility for some function of

employment. Id. 

The district court found Kling/Walet’s suit distinguishable from Ford. In

Ford, the plaintiffs sued a chemical plant and certain individual defendants,

including the plant manager. 32 F.3d at 936-37. The defendants removed,

alleging the manager, among other defendants, was improperly joined. This

court concluded the Ford plaintiffs did have a reasonable possibility of recovery

against the plant manager, where the facts showed that the plant manger knew

of the leak that lead to the explosion. Id. at 938-39. Here, the district court

concluded that, in contrast to Ford, Kling/Walet made only general and

unsupported allegations that Martin breached a personal duty owed to them

without pleading facts establishing what that actionable, non-general
No. 08-30043

 There are two paragraphs of the petition that specifically reference Martin. In 5

paragraph five of the petition, Martin is listed as one of five defendants: “JACK P. MARTIN,

SR., a Louisiana resident and long-time supervisor in the Fausse Point Field.” Paragraph

twenty-eight details the allegations against Martin:

28. For many years, defendant Jack P. Martin, Sr., served as supervisor of

production for the operators who conducted production activities in the subject

oil field. He directly and personally supervised the installation and use of pits,

wells, pipelines, tank batteries, gas plants and other installations or equipment

used in connection with production activities on the Plaintiffs’ property. He had

personal knowledge of the activities of all defendants that caused or contributed

to the pollution complained of herein. Further, in his supervisory capacity he

had the authority to prevent or limit such activities. Martin knew that

production, disposal, and discharge activities conducted on the subject property

were hazardous to persons and property. Martin knew that disposal of oilfield

wastes in unlined earthen pits or directly to waterways inevitably results in

seepage which contaminates both surface and subsurface soils and waters.

Despite his knowledge, Martin failed to warn petitioners concerning the nature

and extent of the pollutants on their property. Martin had a personal duty to

protect the Plaintiffs and their property, and he breached that duty, thereby

causing the damages described in this petition.

6

managerial duty might be. The district court concluded that the allegations in

Kling/Walet’s complaint and motion to remand were not enough to establish a

Canter duty.

Kling/Walet argues that the district court abused its discretion by piercing

the pleadings regarding Martin and improperly shifted the evidentiary burden

from Chevron to Kling/Walet. Kling/Walet further asserts that its petition

sufficiently alleges a claim against Martin under the requirements of Canter. 

5

Chevron argues that the district court conducted its analysis properly and that

it correctly concluded that Kling/Walet would not be able to recover against

Martin under Louisiana law. We acknowledge that it is less than clear from the

passage of the district court’s order denying remand whether the district court

engaged in a Rule 12(b)(6)-style analysis, a summary inquiry after piercing the
No. 08-30043

 The district court’s order denying remand first summarizes the parties arguments 6

regarding possible recovery against Martin, which appeared to focus only on the pleadings:

In sum, plaintiffs argue[] that Martin’s supervisory capacity gave him the

authority and a personal duty to prevent or limit the hazardous pollution . . .

which Martin violated and thus renders him personally liable to plaintiffs.

Defendant argues that allegations contained in both Plaintiffs’ Complaint and

Motion to Remand are vague . . . and fail to identify the employer for whom

Martin worked . . . or allege any specific acts performed by Martin that would

give rise to a personal duty owned to plaintiffs. 

However, in its comparison of the present case to Ford, where the pleadings were

pierced, it becomes less clear whether or not the district court then pierced Kling/Walet’s

pleadings as part of its analysis:

The facts before this Court in the instant case are distinguishable from Ford.

In Ford, the evidence provided by plaintiffs suggested, by affidavit testimony,

that the plant manager knew of the leak, therefore indicating that there was a

possibility of recovery against the plant manager. Here, plaintiffs make general

and unsupported allegations that Martin breached a personal duty owed to

them. Plaintiffs have not provided any evidence in support of their Motion to

Remand relating to the damage caused to the subject property or to Martin's

knowledge thereof. There is no evidence that any of plaintiffs’ allegations arise

from a non-managerial duty or that Martin’s position and responsibilities

entailed more than general administrative and managerial responsibilities

where Martin could be held personally responsible under Canter. Moreover,

plaintiffs have failed to produce any evidence that supports the allegation that

Martin knew or should have known of any ongoing activities hazardous to the

property, and how a reasonable “supervisor” in Martin’s position should have

acted on that knowledge. The plaintiffs only point to the fact that Martin

supervised certain activities of the defendants’ on the subject property at the

time of the incident, that the supervisory position presupposes certain

knowledge, and claim a personal duty arising from the previous to plaintiffs.

Under Louisiana law, however, there must be more before a court can find that

there is a possibility of finding personal fault on the part of an employee.

Conclusory allegations, as found in plaintiffs’ Complaint and Motion to Remand,

are not enough to establish a Canter duty, as set out above. The plaintiffs have

not set forth any summary judgment type evidence or any other facts which

would establish that there is a possibility that Martin could be held personally

liable under Canter.

Kling, Order Denying Remand, No. 06-1492, 2007 WL 81665, at *5 (W.D. La. Jan. 8, 2007)

(citation omitted).

7

pleadings, or both, in arriving at its conclusion that joinder of Martin was

improper. However, we need not parse the order to determine which it is. 6
No. 08-30043

 Specifically, Kling/Walet’s petition summarizes the requested relief as follows: 7

30. In summary, Plaintiff is thus entitled to the following damages:

a. . . . funds to conduct a[] . . . analysis of the . . . contamination on its property

. . .;

b. The cost to restore its property to its pre-polluted, original condition . . .;

c. Punitive or exemplary damages;

d. An award for unjust enrichment damages for defendants’ unauthorized use

of Plaintiff’s land . . .;

e. . . . [S]tigma damages for diminution in property value . . .;

f. Mental anguish and distress damages;

g. Any civil fruits derived from defendants’ illegal trespass;

h. Damages for annoyance, discomfort and inconvenience occasioned by

nuisance created by defendants, including loss of full use and enjoyment of

Plaintiff’s property; and

i. All other consequential damages . . . that relate to defendants’ breach of

contract, including the costs and attorneys’ fees incurred in bringing this action.

8

We agree with the district court that Kling/Walet’s conclusory allegations

do not establish a reasonable possibility of recovery against Martin under

Canter, although on different reasoning. See United States ex rel. Farmer v. City

of Houston, 523 F.3d 333, 338 n.8 (5th Cir. 2008) (“[I]t is an elementary

proposition, and the supporting cases too numerous to cite, that this court may

affirm the district court’s judgment on any grounds supported by the record.”).

Significantly, this court has held that Canter liability to third persons for the

negligence of corporate officers and employees may only be imposed for bodily

injury claims. Unimobil 84, Inc. v. Spurney, 797 F.2d 214, 217 (5th Cir. 1986);

see Ford, 32 F.3d at 935-36 (noting Canter outlines circumstances where an

employee could be held “individually liable for injuries to third persons”).

Because the only injury alleged in Kling’s petition is economic and emotional –

damage to its property and various forms of mental distress – Kling/Walet 7

would not have a basis for recovery against Martin under Louisiana law as it has

been interpreted in this circuit. See Unimbobil, 797 F.2d at 217; also Hibernia
No. 08-30043

 The Louisiana precedent principally relied on by the Unimobil court, Fine Iron Works

8

v. Louisiana World Exposition, Inc., 472 So.2d 201 (La. App. 1985), writ denied, 477 So.2d 104

(La. 1985), remain good law in Louisiana. See, e.g., Cameron Equip. Co., Inc. v. Stewart and

Stevenson Servs., Inc., 685 So.2d 696, 700 (La. App. 1996) (citing Fine Iron Works for the rule

that absent fraud, officers are not personally liable for the debts of the corporation). Although

Fine Iron Works has not been cited with frequency, the reasoning of the case remains in effect.

See, e.g., Korson v. Independence Mall I, Ltd., 595 So.2d 1174, 1178 (La. App. 1992) (“Officers,

employees and agents owe no duties to third parties, and cannot be found liable to third

parties for their negligent acts and omissions in a commercial context, such as this case.”

(citing Unimobil 84, 797 F.2d at 215-17)). In addition, we have found no intervening decisions

or statutory amendments that would cause Unimobil’s interpretation of Canter to be clearly

wrong. See Lamar Advertising Co. v. Cont’l Cas. Co., 396 F.3d 654, 663 n.8 (5th Cir. 2005)

(discussing doctrine of panel stare decisis requiring panel in diversity cases to adhere to a

prior panel’s interpretation of state law in the absence of a subsequent state court decision or

statutory amendment which makes this court’s prior decision “clearly wrong”) (quoting Amer.

Int’l Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 271 n.4 (5th Cir. 2003)). We

also note that all of the cases applying Canter that Kling/Walet has cited in its filings involved

claims of bodily injury. See, e.g., McKee v. Kansas City S. Ry., 358 F.3d 329 (5th Cir. 2004)

(featuring a plaintiff was a vehicle passenger injured in a collision with a train and suing train

engineers as well as rail company); Travis v. Irby, 326 F.3d 644 (5th Cir. 2003) (featuring a

plaintiff who was the mother of a driver killed when his car was struck by train at a rail

crossing and suing train engineer as well as rail company).

Because we resolve this appeal without looking beyond Kling/Walet’s pleadings, we 9

need not decide whether the district court erred either by piercing the pleadings without notice

to Kling/Walet and/or shifting the burden to plaintiffs regarding Martin’s improper joinder.

9

Cmty. Dev. Corp., Inc. v. U.S.E. Cmty. Servs. Group, Inc., 166 F. Supp. 2d 511,

515 (E.D. La. 2001) (applying bodily injury distinction announced in Unimobil).

8

Because Kling/Walet had no reasonable possibility of recovery against

Martin, there was complete diversity between Kling/Walet and Chevron, and the

court properly denied the motion to remand and retained diversity jurisdiction

to hear the case. See Guillroy,434 F.3d at 312-13. 9

II. Prescription

Because the district court had proper subject matter jurisdiction over

Kling/Walet’s suit, we turn to the issue of whether Chevron was entitled to

summary judgment. We review the grant of summary judgment de novo,

applying the same standard on appeal that is applicable in the district court.

Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir. 2002).
No. 08-30043

10

Summary judgment may be granted if there is no genuine issue as to any

material fact and the movant is entitled to judgment as a matter of law. FED. R.

CIV. P. 56(C). In determining whether summary judgment is appropriate, all of

the evidence and all of the factual inferences from the evidence are viewed in a

light most favorable to the party opposing the motion. Terrebonne Parish, 310

F.3d at 877. A genuine issue of material fact exists if the record, taken as a

whole, could lead a rational trier of fact to find for the non-moving party. Id. 

Ordinarily, the party pleading prescription bears the burden of proving

that the plaintiff’s claims have prescribed. In re Moses, 788 So. 2d 1173, 1177-78

(La. 2001). However, because more than a year has elapsed between the time

of the tortious conduct and the filing of the tort suit, the burden shifts to

Kling/Walet to demonstrate prescription was suspended or interrupted. Id.

Kling/Walet assert that either or both the doctrine of contra non valentem and

the theory of continuing tort suspend or interrupt prescription in this case. 

A. Doctrine of Contra Non Valentem 

Kling/Walet first argue that the court erred in granting summary

judgment based on prescription because material issues of fact are in dispute

regarding the reasonableness of their delay in filing suit under the doctrine of

contra non valentem. Specifically, Kling/Walet argue that there is a factual

dispute about when they became fully aware of the extent and kind of

contamination on their land, and thus of their right to sue. Chevron responds

that Kling/Walet had knowledge for decades of alleged contamination of the

property and its lack of productivity, Kling/Walet could not rely on contra non

valentem to avoid the running of prescription. Chevron further argues that

contra non valentem is inapplicable because of the testimonial and documentary

evidence that Kling/Walet knew since the 1970s that the soil surrounding the

Well would not sustain crop growth. 
No. 08-30043

11

The doctrine of contra non valentem was created by the Louisiana courts

as an exception to the general rules of prescription. Wimberly v. Gatrch, 635 So.

2d 206 (La. 1994). Damage is considered to have been sustained only when it

has manifested itself with sufficient certainty to support accrual of a cause of

action. “The doctrine of contra non valentem prevents the running of liberative

prescription where the cause of action is not known or reasonably knowable by

the plaintiff.” Cole v. Celotex Corp., 620 So. 2d 1154, 1156 (La. 1993); see also 

Eldredge v. Martin Marietta Corp., 207 F.3d 737, 743 (5th Cir. 2000). Louisiana

recognizes four situations where contra non valentem applies. Causby v. Perque

Floor Covering, 707 So. 2d 23, 25 (La. 1998). The two at issue here are:

(1) where the debtor has done some act effectually to prevent the creditor from

availing himself of his cause of action; and (2) where the cause of action is not

known or reasonably knowable by the plaintiff even though plaintiff’s ignorance

is not induced by the defendant. Id.

When prescription begins to run depends on the reasonableness of

Kling/Walet’s inaction. See Cole, 620 So. 2d at 1157; see also Terrebonne Parish

Sch. Bd., 310 F.3d at 884. As a judicial exception to the statutory rule of

prescription, Louisiana courts strictly construe contra non valentem and only

extend its benefits up to “the time that the plaintiff has actual or constructive

knowledge of the tortious act.” Eldredge, 207 F.3d at 743 (affirming summary

judgment of prescription where plaintiff noticed damage to land from tug-boat

company actions, yet took no further legal steps to stop the tort until two

decades later). Kling/Walet allege that Chevron misled them about the kind

and extent of contamination when they raised the issue of soil damage in 1973.

They further allege that the damage was not reasonably knowable (and

unknown) until within a year of filing the present suit. 

We conclude that contra non valentem is inapplicable to Kling/Walet’s suit.

There is no evidence in the record showing that Chevron was aware of increasing
No. 08-30043

12

contamination from salt or otherwise after the 1973 Release or acted to prevent

Kling/Walet from availing themselves of their cause of action in a timely

manner. In addition to those contamination problems Kling/Walet were aware

of at the time of the 1973 Release, Mr. Walet also testified in deposition about

his history of farming on the subject property and knowledge of low yields and

crop problems over the years since the Well was plugged. Documents from a

former Kling/Waletrepresentative mentioned Chevron’s “dumping salt water,

oily by-products, chemicals, on” the property and concerns about the “virtually

zero” productivity of the land. As early as the 1970s, Kling/Walet had

information “sufficient to excite attention and prompt further inquiry,” yet did

not investigate or bring their claims until now. See Eldredge, 207 F.3d at 743.

B. Continuing Tort

Kling/Walet further argue that a continuing tort has suspended the

running of prescription. Specifically, Kling/Walet argue that the pollution of

their land, like dumping foreign materials onto the property of another without

authority, constitutes a continuing trespass or nuisance. Chevron responds that

there is no continuing tort in this case because the alleged tortious conduct

ceased by the mid-1970s when Well operation ceased and the final release of the

lease at issue was recorded. 

When the tortious cause of injury is a continuing one, under Louisiana law

prescription does not begin to run until the conduct causing that damage ceases.

Bustamento v. Tucker, 607 So. 2d 532, 542 (La. 1992). “When the damaging

conduct continues, prescription runs from the date of the last harmful act.”

South Cent. Bell Tel. Co. v. Texaco, Inc., 418 So. 2d 531, 532 (La. 1982).

Kling/Walet’s knowledge of their claim is immaterial to the running of

prescription in the case of continuing torts. Scott v. Am. Tobacco Co., Inc., 949

So. 2d 1266, 1280 (La. Ct. App. 2007). 
No. 08-30043

13

Louisiana courts have recognized that in some instances the unlawful

invasion of another’s property by hazardous waste falls in the category of

continuing trespass. See South Cent. Bell, 418 So. 2d at 533 (holding

prescription did not begin to run on tort claim by owner of underground gas

tanks at filling station for damages sustained by underground telephone cables

by gas leaking from the tanks until the leaking tanks were replaced).

Kling/Walet argue that Chevron deposited such waste on their property in

connection with its oil exploration, that Chevron no longer had permission to

keep waste on their property once the lease was terminated, and this continuing

failure to clean up the waste is the continuing tort. See M&A Farms, Ltd. v.

Ville Platte, 422 So. 2d 708, 711 (La. Ct. App. 1982) (“[T]he trespass continues

as long as the offending object remains on the premises, and the trespass is

terminated only by the removal of the object wrongfully placed there.”). 

However, a “continuing tort is occasioned by unlawful acts, not the

continuation of the ill effects of an original, wrongful act.” Crump v. Sabine

River Auth., 737 So. 2d 720, 728 (La. 1999) (continuing tort theory did not apply

where property owner sued river authority claiming that canal dug on

authority’s property by third parties diverted water from the bayou flowing over

the owner’s property). “[F]or there to be a continuing tort there must be a

continuing duty owed to the plaintiff and a continuing breach of that duty by the

defendant.” Crump, 737 So. 2d at 728. Here, the Well was plugged and

abandoned on October 21, 1971. Kling/Walet entered into the 1973 Release with

Chevron after Chevron “restored the property to its original condition.” Because

the 1973 Release contained a three-year window for claims, prescription began

to run three years after the date of the 1973 Release.

Further, “the breach of the duty to right a wrong and make the plaintiff

whole simply cannot be a continuing wrong which suspends the running of

prescription, as that is the purpose of any lawsuit and the obligation of every
No. 08-30043

14

tortfeasor.” Id. Louisiana law distinguishes between acts of trespass that

terminate and those that continue. For example, bulldozing a levee on plaintiff’s

property is a trespass but not a continuing trespass because no object or thing

was left behind on plaintiff’s property; in contrast, the construction of locks and

dams permanently flooding another’s land has been held a continuing tort.

Compare M&A Farms, 422 So. 2d at 711-12, with Cooper v. Louisiana Dep’t of

Public Works, 870 So. 2d 315, 323 (La. Ct. App. 2004). Similarly, leaving a

leaking gas tank underground to damage cables on the property is a continuing

trespass, while digging a canal on adjoining property is not. Compare South

Cent. Bell, 418 So. 2d at 533; with Crump, 737 So. 2d at 728. Thus, the question

is whether a continuing physical invasion of the property is present. 

We are not persuaded that failure to clean up the contamination

constitutes such a continuing physical invasion under Louisiana law. Any

contamination of the Kling/Walet property caused by Chevron is the continuing

effect of prior conduct; the soil damage is unlike dumping garbage or litter on

another’s property. See Estate of Patout v. City of New Iberia,708 So. 2d 526 (La.

Ct. App. 1998), affirmed by, 738 So. 2d 544 (1999); Dore v. Jefferson Guar. Bank,

543 So. 2d 560, 562 (La. Ct. App. 1989). The contamination at issue in this case

is distinguishable from the leaking gas tank in South Central Bell. 418 So. 2d

at 533. In that case, the tanks at issue were leaking extensively and

continuously throughout the time period subject to litigation. In contrast,

Chevron plugged the Well in 1971. Further, Louisiana courts have

distinguished South Central Bell as being based on a theory of strict liability

under La. Civ. Code art 667, which is not applicable here. See Labatut v. City

of New Orleans, 686 So. 2d 1038, 1040 (La. Ct. App. 1996). 
No. 08-30043

 Kling/Walet assert that they have stated two other claims under continuing trespass: 10

(1) duties of vicinage (duty owed by it due to its status as a mineral lessee); and (2) the duty

to disclose based on their contractual relationship. However, these arguments were not

presented to the district court and are therefore not properly before this court. 

15

Because Kling/Walet have not established an exception to prescription, we

affirm the award of summary judgment to Chevron on the basis that

Kling/Walet’s claims are time-barred.10

CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.