United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 9, 2005

Charles R. Fulbruge III Clerk No. 04-40603

C & E LAND CO; ET AL

Plaintiffs

CEO INVESTMENTS INC

Plaintiff - Appellant

versus

AIR PRODUCTS LP

Defendant - Appellee

-------------------- Appeal from the United States District Court for the Eastern District of Texas, Beaumont

--------------------

Before GARWOOD, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:

Appellant CEO Investments, Inc. (“CEO”) appeals the district

court’s denial of its motion for summary judgment and the

district court’s grant of Appellee Air Products, L.P.’s (“Air

Products”) motion for partial summary judgment.1 After

considering the record and the parties’ briefs and arguments on

1 Air Products filed a motion for partial summary judgment because there were two other parties in the proceeding. Those two parties were later severed, and at the time the partial summary judgment was granted it fully disposed of the issues between CEO and Air Products. appeal, we affirm the district court’s judgment, principally for

the reasons set forth in the magistrate judge’s report and

recommendation, which was adopted by the district court.

We agree with the district court’s determination that the

language of the easement in question unambiguously allows Air

Products to transport hydrogen. The easement grants a pipeline

right of way “for the transportation of oil, petroleum, gas, the

products of each of the same, water, other liquids and gases, and

mixtures of any of the foregoing . . . .” The plain meaning of

this language includes hydrogen.

Because we find that the easement unambiguously allows for

the transportation of hydrogen, we do not need to address

Appellant’s arguments based on extrinsic evidence or the

application of ejusdem generis. See Sun Oil Co. v. Madeley,

(Tex. 1981); Nicol v. Gonzales,

(Tex. App. - Dallas 2004).

Finally, we find no merit in Appellant’s contention that the

district court erred by ordering a take nothing judgment against

it. From the context of this case, it is clear that the district

court’s order that Appellant take nothing merely reflects its

determination that Air Products owns an easement that allows it

to transport hydrogen through Appellant’s property. The district

court’s take nothing judgment against Appellant does not decide

any other issues with respect to Appellant’s property ownership.

See Davidson v. Gelling,

(Tex. 1954) (citing Campbell v. Schrock,

(Tex.Com.App. 1932)).

For the foregoing reasons, the district court’s judgment is

in all things AFFIRMED.