## Facts

- The Levy family sold railroad right-of-way strips through plantation land in Caddo Parish, Louisiana, including a 1923 sale to Texas & Pacific Railway Co. (T&P) to relocate tracks.
- The 1923 deed conveyed the strip “unto [T&P], its successors and assigns forever” and stated that T&P “shall” fence the strip, maintain the fence, “shall provide three crossings” at specified points, and “binds itself, its successors and assigns, to furnish proper drainage out-lets” across the conveyed land.
- Franks Investment Company, L.L.C. later acquired adjacent plantation property; Union Pacific Railroad Company later acquired T&P’s right-of-way and rail line.
- For decades, multiple private crossings connected the adjoining property to a highway across the railroad.
- Union Pacific closed or threatened to close crossings in the 2000s; Franks asserted a Louisiana property-law real right to keep the crossings open based primarily on the 1923 deed and longstanding use.
- After earlier litigation over federal preemption, the district court granted summary judgment to Union Pacific, ruling the 1923 deed did not create a predial servitude or other real right in Franks’s favor and dismissed Franks’s claims with prejudice.

## Issues

1. Whether the 1923 deed language requiring fencing, crossings, and drainage created a predial servitude (or other real right) benefiting the retained plantation land, rather than only personal obligations of the railroad.
2. If a real right was created, whether it ran with the land and burdened Union Pacific in favor of Franks as successor.
3. Whether Franks had any independent right of passage/crossing over the railroad property apart from the deed language.

## Decision

- The Fifth Circuit affirmed summary judgment for Union Pacific.
- The court held the 1923 deed did not clearly and expressly create a predial servitude or other real right of passage or drainage benefiting Franks’s land.
- The deed provisions were construed as contractual, personal obligations undertaken by the railroad, not a servitude appurtenant to a dominant estate.
- The court rejected alternative theories for a real right (including implied servitude, prescription-based acquisition, or statutory passage rights) on the record and claims presented.

## Legal Principles

- Under Louisiana law, predial servitudes are disfavored and must be created by clear, express language in a written instrument; ambiguities are resolved in favor of free use of property.
- Contractual undertakings in a deed (e.g., “shall provide crossings,” “binds itself”) do not create a real right unless the instrument clearly grants or reserves a servitude and identifies the benefited and burdened estates or the right “for the benefit of” specific land.
- “Successors and assigns” language may extend contractual duties to later owners without converting those duties into a predial servitude or other real right.
- Courts will not infer a servitude of passage from practical necessity or surrounding circumstances when the deed lacks an express grant or reservation of a right to cross.
- Longstanding use of crossings does not, without proof of the required elements and a properly developed claim, establish a servitude by prescription.

## Conclusion

The court concluded that the deed’s crossings and drainage clauses imposed personal obligations on the railroad but did not create a predial servitude or other real right running with the land; therefore, Franks could not compel Union Pacific to maintain private crossings or drainage outlets as a matter of Louisiana property law.


Franks Inv. Co., L.L.C. v. Union Pac. R.R. Co., 772 F.3d 1037 (5th Cir. 2014)