At a recent ABA conference, we suggested during our presentation that cases involving pipelines (petroleum, natural gas, etc.) would be "hot topics," and here's the latest: in In re Texas Rice Land Partners, Ltd., No. 09-12-00484-CV (May 23, 2013), the Texas Court of Appeals (Ninth District) held that TransCanada Keystone Pipeline, L.P. is a "common carrier" that has the power of eminent domain, and can condemn an easement for its pipeline.
The Keystone Pipeline is a 2,151 mile petroleum pipline from Hardisty, Alberta in Canada, to Port Arthur, Texas, via Illinois and Oklahoma. TransCanada instituted an eminent domain action to take an easement over land being used for rice farming, and the property owners objected, asserting that TransCanada did not have the condemnation power. The trial judge didn't make a ruling on that issue, but granted immediate possession to TransCanada, concluding that resolution of its ability to take the easement could wait for trial because it had made the required deposit for the estimated compensation. [Barista's note: this case is not the same one where the trial judge sent his ruling to the parties via iPhone -- that case raised the same issue, but involved a different property owner.]
The property owners sought a writ of mandamus from the court of appeals, arguing that the power-to-take issue must be resolved before the erstwhile condemnor is put in possession. The appeals court agreed with the property owners that the trial court should not have postponed its ruling, but concluded that TransCanada had submitted uncontroverted evidence that the pipeline would be used by third parties to ship petroleum, and therefore TransCanada qualified as a "common carrier."
The court distinguished a recent Texas Supreme Court case involving the same property owners which held that a pipeline company's mere assertion that it is a "common carrier" is not sufficient to meet its burden of proof. Unlike that case (which involved a different statutory provision), TransCanada did not merely assert it was a common carrier, it backed up that assertion with an affidavit, and the property owners did not submit contrary evidence. Thus, the trial court's error in delaying resolution of the common carrier issue was harmless.
More here, from the Southeast Texas Record.