Jury To Determine Common Carrier Status In Pipeline Condemnation Matters.

The defendant, a pipeline company, sought to construct a carbon dioxide pipeline across the plaintiff's cattle ranch and rice farm.  The plaintiff barred the defendant from surveying the property and the defendant received a temporary injunction against the plaintiff.  The trial court determined that the defendant was a "common carrier" which carried with it the power of eminent domain.  Accordingly, the trial court permanently enjoined the plaintiff from interfering or attempting to interfere with the defendant's right to enter and survey the plaintiff's property.  On appeal, the appellate court affirmed.  On further review the TX Supreme Court reversed, establishing a new test for determining common carrier status.  On remand, the trial court determined that the defendant was a common carrier that had the right of eminent domain.  On appeal, the court determined that before the defendant can obtain common carrier status, the affected property owners can demand that the party seeking common carrier status be established at a jury trial.  In the prior Supreme Court case, the Court held that the designation of common carrier by the Texas Railroad Commission was inadequate and that it was up to the pipeline company to establish common carrier status as part of a condemnation case.  Under the Supreme Court test, a pipeline company must establish a "reasonable probability" that the pipeline will, at some point after the pipeline is constructed, serve the public "by transporting gas for one or more customers who will either retain ownership of their gas or sell the gas to parties other than the carrier."  This must be shown, the court held, at the time the company intends to build the pipeline.  Thus, the "reasonable probability" question is a fact issue to be determined by a jury.  Texas Rice Land Partners, Ltd., et al. v. Denbury Green Pipeline-Texas, LLC, No. 09-14-00176-CV, 2015 Tex. App. LEXIS 1377 (Tex. Ct. App. Feb. 12, 2015).