Case of the Day – Wednesday, June 23, 2021

TRUST US … WE KNOW WHAT WE’RE DOING

Anyone who hasn’t been living in a cave the past few years knows that sunny California has been just a little too sunny. The state and local governments have begged, pleaded, and cajoled homeowners to save water. Some rather severe measures have been implemented.

This is not an especially new story, but it is severe. That’s why we recall the story that broke a few years ago that the California rich – like the rich everywhere – aren’t exactly like you and me. At least, not like me. Sure there’s a severe shortage. And sure people should cut back. But not rich people. “We pay significant property taxes based on where we live,” one uber-wealthy property owner complained to the Washington Post. “And, no, we’re not all equal when it comes to water.”

Ah, yes, we know what entitlement must feel like. It’s sort of like how the Andrewses, high-powered and sophisticated lawyers both, must have felt when they bought their house. You see, Mr. and Mrs. Andrews weren’t your typical blundering homebuyers. He was a tax attorney – the high priests of the legal profession – and she was an appellate specialist. So when they settled on a beautiful homestead in the Ohio countryside next to a hillside covered with pine trees, they figured that they understood all those ‘thences’, distances and bearings to PK nailsets, and ‘principal places of beginning’, you know, the stuff other lesser lawyers put in deeds. So how could they have missed the easement that the prior owner had granted to the gas company for two pretty big gas transmission lines buried on the place?

We’re sure they must have read it. But these legal beagles apparently never dreamed the easement meant what it said.

About four years after they moved in, the gas company came along and said the pine trees on the hill were encroaching on the easement and had to go. Being frugal as well as sharp, the Andrewses sued in local court, acting as their own attorneys. They argued the gas company was stuck with the trees because it had let them grow there in the first place, and anyway, it hardly needed to clear-cut a swath 80 feet wide (25 feet on either side of the two pipelines and 30 feet in the middle).

Ol’ Abe Lincoln was right: the Andrews had a pair of fools for clients.

As it turned out, Columbia Gas had a few lawyers, too, and these guys knew easements like Mr. Andrews knew tax. Maybe even better. The gas company removed the case to federal court, where after a trial, the Andrewses had their heads handed to them. The Court of Appeals affirmed the defeat.

The court held that Columbia Gas hadn’t acquiesced to the trees, because they weren’t any there when the pipeline was built (but were planted by a later homeowner). The fact that the gas company hadn’t cut a swath of trees from the easement in 55 years didn’t matter, nor did it matter that the gas company was cutting such a wide right-of-way on neighboring easements. The court gave credence to the Columbia Gas and state utilities commission witnesses, who carried the day by carefully explaining all of the safety, economic, and reasons for the gas company to want the trees removed.

The Court ruled that absent evidence to the contrary, a judge should presume that the parties contemplated that normal development would result in some changes in the use of the easement, even if it is unlikely that the parties anticipated specific developmental changes. New technology permitting aerial inspection, new federal regulations on pipeline safety and security, and new techniques of internal pipeline inspection, were all such “developmental changes,” arguing for the gas company to take a heightened interest in keeping its easement clear.

Andrews v. Columbia Gas Transmission Corporation, 544 F.3d 618 (6th Cir., 2008). In 1947, Ruby W. Davies owned the piece of land in Licking County, Ohio, where the Andrews family now lives. She granted The Ohio Fuel Gas Company an easement to build and maintain a pipeline and to “lay, maintain, operate, repair, replace and remove other lines of pipe at any points on said premises upon the payment of like consideration” and the right of “ingress and egress to and from the same” over and across the property. Ohio Fuel agreed to “pay any damages which may arise to crops and fences from the laying, maintaining, operating and final removal of said pipe line.” The agreement did not specify the width of the easement.

Pursuant to the agreement, Ohio Fuel installed two large high-pressure underground natural gas transmission pipelines through the property. The first, Line K-170, is 16 inches wide and was installed in 1947. The second, Line K-205, is 24 inches wide and was installed in 1957. The two pipelines run parallel to each other about 30 feet apart. Columbia Gas succeeded to Ohio Fuel’s interest in the right of way and still operates and maintains the pipelines. The property changed hands several times over the past 50 years. In the late 1960s, the owner built a house on it and planted pine trees on the hillside behind the house for aesthetics and erosion control. The owner was unaware that he had planted the trees within 25 feet of Line K-170.

In March 2000, the Andrews bought the property with notice of the 1947 right of way agreement. By then, the pine trees had matured. The Andrews’ decision to purchase the property was motivated in large part by the rural setting and the hillside landscaping.

Columbia Gas made no efforts to clear a right of way around the pipelines until 2004, when a work crew told the Andrews that the location of the pipeline required them to remove the stand of pine trees. Columbia Gas claimed the right to remove the trees and to maintain a right of way totaling approximately 80 feet, 25 feet on each side of the two pipelines and the 30 feet between the two pipelines. The Andrews sued Columbia Gas, seeking an injunction and asking for damages if the trees were cut. After trial, the court entered judgment in favor of Columbia Gas, relying on the testimony of Timothy Seibert, a long-time Columbia Gas employee responsible for overseeing the inspection and maintenance of the pipelines running through Andrews’ property, and Paul Hollinger, an investigator for the Public Utilities Commission of Ohio, the state agency responsible for overseeing natural gas transmission lines. Based on their testimony, the Court concluded that a 50-foot right of way for each pipeline was “necessary and convenient and consistent with the language of the 1947 Davies easement.” The court declined to apply the doctrines of laches, estoppel, or waiver, noting that those doctrines do not apply to expressly granted easements under Ohio law. Finally, the Andrews were not entitled to compensation for the removal of the trees because the right of way agreement only provided recovery for damage to crops and fences. The Andrews appealed.

Held: Columbia Gas was entitled to the 80’ wide right-of-way, and the Andrews were not entitled to damages for the lost trees. Under Ohio law, an easement is an interest in the land of another, created by prescription or express or implied grant, that entitles the owner of the easement to limited use of the land in which the interest exists. The owner of the land subject to an easement has the right to use the land in any manner not inconsistent with the easement but has no right to interfere with or obstruct the reasonable and proper use of the easement. The owner of an easement has the right to remove objects within it that unreasonably interfere with or obstruct its reasonable and proper use.

Where the terms of an expressly granted easement are ambiguous, the Court held, a judge must determine its scope from the language of the grant, the circumstances surrounding the transaction, and what is reasonably necessary and convenient to serve the purposes for which the easement was granted. Absent contrary evidence, a judge should presume that the parties contemplated that normal development would result in some changes in the use of the easement, even if it is unlikely that the parties anticipated specific developmental changes. Acquiescence for a long time in a certain construction of a grant of an easement estops the assertion of a different construction.

The Andrews argued that Columbia Gas never cleared any area within its claimed right of way, and never objected when the prior owner planted the pine trees in the late 1960s. But lack of action prior to this time did not stop the gas company from asserting its rights now. If Columbia Gas had consistently cleared only 10 feet on each side of its pipelines, the Court said, the Andrews’ argument would have more force. But the fact that the company did nothing is not fatal to its claim. Besides, the Court said, Columbia Gas did not acquiesce to the trees. No trees were growing there in 1947, making it reasonable for the trial court to conclude that the conduct of Columbia Gas after the trees were planted did not evidence the original intent of the parties.

The Andrews also argued that Columbia Gas acquiesced by allowing trees near its pipelines on other properties. But the original intent of the parties is the primary inquiry, and only the conduct of the parties regarding the particular property at issue is relevant. The fact that the gas company may or may not have enforced its easement to its fullest width elsewhere has absolutely no bearing at all on whether it may enforce its easement to its fullest width on the Andrews property.

Relying on testimony by expert witnesses, the lower court ultimately concluded that a 50-foot easement was reasonably necessary and convenient for the inspection, operation, and maintenance of each of the pipelines. The factual findings upon which he based that conclusion were not clearly erroneous. Although each easement case is factually unique, almost every court to construe an easement with similar language as the one at issue here has concluded that a 25-foot right of way on both sides of the pipeline was reasonably necessary and convenient. And it is beside the point to argue that federal regulations do not require natural gas companies to clear rights of way around their pipelines. Assuming that to be true, the regulations do not prohibit gas companies from clearing rights of way. Although federal law may be helpful in construing certain ambiguous easements, the rights granted in an easement ultimately flow from a private agreement. The difficulties Columbia Gas might face in conducting pipeline inspections was a primary ground for the lower court’s conclusion that a 50-foot right of way was reasonably necessary and convenient for each of the pipelines on the Andrews property.

Columbia Gas offered evidence that the trees hindered the company’s ability to conduct both aerial and close interval pipeline inspections. According to an expert witness, the presence of trees within the right of way interfered with aerial inspections. Additionally, trees within 25 feet of the center of a pipeline could hinder the company’s ability to conduct close interval surveys and to excavate the pipeline in the event of an anomalous inspection or an emergency such as a leak or rupture.

The Andrews argued that Columbia Gas had safely maintained its pipelines for decades without removing the trees and that if an emergency ever arises, it can remove the trees quickly enough at that time. The trial court recognized this as well, but also reasoned that there were some circumstances in which the additional time to remove the trees could impose a substantial hardship on customers who would be without natural gas service during the excavation and the delay to remove the trees could unnecessarily jeopardize public safety. There was ample support in the record for the conclusion that a cleared right of way was reasonably necessary to ensure a safe, timely, and efficient excavation. The trial court also considered evidence that a 50-foot right of way is standard in the gas pipeline industry.

Finally, the Andrews challenged the trial court’s determination that they are not entitled to damages for the removal of the trees. Because the trees were inconsistent with the easement rights of Columbia Gas, the company was authorized to remove them.

Thomas L. Root