Case of the Day – Monday, November 6, 2017

EASEMENT CREEP

A pipeline runs through it ... but how wide is the easement?

A pipeline runs through it … but how wide is the easement?

It’s a common enough problem when a deal gets cut by people who later leave the company, retire, pass on, whatever. Over the years newer, younger Turks come along, who redefine the deal to suit the newer aims and needs of the company.

So it was with some gas line easements in the Mohican forest area of eastern Ohio. We’ve discussed previously why a careful description of the bounds of an easement is such a good idea. Here’s another example. When the easements for these three gas pipelines were written, they didn’t contain any description of the width of the right-of-way being provided to the easement holder. Over the first 40 years or so, the gas company kept the right-of-way cleared to 10 or 15 feet. But in 2003, the company suddenly decided it required 20 to 25 feet, and it began cutting accordingly. Even that wasn’t enough, and so in 2006, the gas company sued a church camp and some other recreational landowners for a declaratory ruling that the easement was really 50 feet wide.

The Federal district court denied summary judgment to the gas company. The gas company’s argument, reduced to its essence, was that it must obey new, stiffer federal laws and regulations in the wake of 9/11, and those require a 50-foot wide easement. The court wasn’t buying it. Finding no language to help it in the easements themselves, the court looked at other factors. It seemed pretty clear that nothing in the way the gas company had operated for 40 years or so supported a finding that the parties understood all along that they were dealing with a 50-foot wide easement. The gas company’s arguments that its operations required 50 feet failed — the court said the best it could justify based on the evidence was 29 feet wide. And the court was troubled that the gas company had met with the church in 1965, when the church was buying the campground, and told church representatives that it was looking at a 10-15 foot right-of-way. Thirty-eight years later, it told the church it needed a 20-25 foot wide easement.

Sometimes, you have to dance with the girl who brung ya …

Sometimes the little guy really does win ...

Sometimes the little guy really does win …

None of this meant that after a full trial, the court might not feel differently. But for moment, it was David 1, Goliath 0. And – reading the handwriting on the wall – Columbia Gas Transmission Corp. ended the litigation several months later.

Columbia Gas Transmission Corp. v. First Congregational Church, Slip Copy, 2007 WL 4350769 (N.D. Ohio, Dec. 11, 2007). Columbia Gas owned three gas pipelines that traverse the Church’s camping retreat property. Two of the easements had been granted by the Muskingum Conservancy District, the Church’s predecessor-in-interest, providing the right to ingress and egress, the right to lay, maintain, operate, repair, replace and remove the pipe, provided the pipe would be buried so as not to interfere with the cultivation of the land. A second easement had been granted for the sole purpose of drilling for oil and gas and to use the premises for pipelines, water lines, pumps, tanks, structures and stations necessary or convenient in connection with drilling, provided that the pipelines be buried and the easement holder pay for all damages to growing crops and trees.

When the Church bought the campground in 1965, gas company representatives showed the clergymen the clearings for the pipelines, which were between 10 and 15 feet wide. In 2003, the gas company expanded its cleared right-of-way to 20 to 25 feet. Three years later, the gas company told a church member it owned a 50-foot right of way, and asserted that the Department of Homeland Security required this for gas pipelines. The gas company cleared all the trees within 50 feet of one of the pipelines without informing the church of its intention. The gas company dumped brush piles in excess of 55 feet from the centerline of of the pipeline, needlessly changing the topography of the area. Shortly thereafter, the gas company sued the church for injunctive relief that its easement entitled it to clear a 50-foot right-of-way on a second pipeline. The church wasn’t alone: several other landowners were sued as well, and the court consolidated all of the cases. The Church filed a counterclaim seeking declaratory judgments and injunctive relief that Columbia Gas was not entitled to a 50-foot right-of-way in its easements for its pipelines, and sought damages from the previous tree clearing along the one pipeline. Columbia Gas moved for summary judgment.

Held: The gas company’s motion was denied. Under Ohio law, the granting of an easement includes a grant of all things necessary for the use and enjoyment of the easement. Where the complete terms of the easement are not expressed in the instrument granting it, the extent and limitation of the easement are ascertained from the language of the grant, from the circumstances surrounding the transaction, and by what is reasonably necessary and convenient to serve the purpose for which the easement was granted. The holder of an easement may not increase the burden upon the servient estate by engaging in a new or additional use of the easement. However, without specific language to the contrary, an easement holder is entitled to vary the mode of enjoyment and use of the easement by availing himself of modern inventions if by doing so he can more freely exercise the purpose for which the grant was made.

Easements should be very specific - because the people who wrote them won't always be around.

Easements should be very specific – because the people who wrote them won’t always be around.

Here, the easement agreements were ambiguous at best, and provided no basis for determining what the parties had intended. As to what is reasonable, it is true that the gas company has a duty to maintain its storage pipelines in accordance with federal law. It has a policy of not allowing any growth more than five feet tall within the right-of-way. However, its evidence of use of the easement and of hazard to pipelines from tree roots supports a clearing of only about 29 feet at most. Furthermore, Ohio courts have also looked to use and acquiescence and have refused to extend easements to fifty feet where the gas company has allowed mature trees growing within fifty feet of the pipeline.

Here, even if the regulations suggested a fifty-foot wide clearing were necessary, the Court said, the parties never contemplated such a right-of-way at the time of the granting of the easement. The gas company argued that 50 feet is necessary for it to conduct aerial patrol. The Court said presumed that the parties contemplated normal developmental changes in the use of the easement, nothing in the evidence ever suggested that anyone contemplated a 50-foot right-of-way.

The parties’ experts’ discussions of the relevant safety issues is only one issue among many that the Court was willing to consider in determining the dimensions and scope of the easement. The Court also considered the language of the grants and the circumstances surrounding the transactions. Neither of those entitled the gas company to a judgment as a matter of law.

Finally, the Church argued that the Plaintiff should be estopped from arguing a larger easement than 25 feet is reasonably necessary and convenient, because it not only used a small right-of-way in the past, but its representative affirmatively showed the Church’s representative the clearings of the trees so that the Church would know what to expect — showing him clearings of 10 feet, occasionally increasing to 15 feet in width. Further, in 2003, the gas company told a member of the Church it needed 25 feet, not 50. The Court said these conversations and interactions, coupled with the gas company’s failure to remove mature trees until now, might demonstrate enough evidence of use and acquiescence to estop the gas company from arguing for 50 feet.

– Tom Root

TNLBGray140407

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